The Texas Department of Insurance (Department), Division of Workers' Compensation (Division) proposes amendments to §133.307 and §133.308 of this title (relating to MDR of Fee Disputes and MDR by Independent Review Organizations, respectively). The Division proposes amendments to these rules in order to implement and enforce statutory provisions of House Bill 2605 and Senate Bill 809, enacted by the 82nd Legislature, Regular Session, effective September 1, 2011 (HB 2605 and SB 809) which concern the appeals process for medical fee disputes and medical necessity disputes, as well as the expedited provision of medical benefits for certain injuries sustained by first responders. The Division is also proposing other amendments to these rules that are intended to clarify and update these rules.

HB 2605 made several legislative amendments that impact the resolution of medical fee dispute cases adjudicated by the Division. This bill enacted Labor Code §413.0312, which alters the appeals process applicable to medical fee disputes after the Division's review under Labor Code §413.031. Newly added Labor Code §413.0312 provides one appeal process for medical fee disputes regardless of the amount of reimbursement sought. Prior to the enactment of HB 2605, appeals of medical fee disputes were handled by a Division contested case hearing (CCH) if the amount of reimbursement sought by the requestor in an individual fee dispute was $2,000 or less or a contested case hearing conducted by the State Office of Administrative Hearings (SOAH) if the amount of reimbursement sought exceeded $2,000. Parties who had exhausted all administrative remedies and who were aggrieved by the final decision of SOAH could seek judicial review of the decision in the manner provided for judicial review of a contested case under Subchapter G, Chapter 2001, Government Code.

Pursuant to Labor Code §413.0312, the appealing party is now required to mediate the medical fee dispute at a benefit review conference (BRC) under Labor Code Chapter 410, Subchapter B. If the dispute remains unresolved after a BRC, the parties may elect to engage in binding arbitration as provided by Labor Code §413.0312(d) and under Chapter 410, Subchapter C. However, if arbitration is not elected, the party is entitled to a contested case hearing at SOAH to resolve the dispute in the manner provided for a contested case under Chapter 2001, Government Code. A party who has exhausted all administrative remedies and who is aggrieved by a final decision of SOAH may seek judicial review of the decision in the manner provided for judicial review of a contested case under Subchapter G, Chapter 2001, Government Code and Labor Code §413.031(k-1).

In addition to altering the appellate process applicable to medical fee disputes, Labor Code §413.0312 also provides for reimbursement to the Division for the costs for services provided by SOAH in a contested case hearing involving a medical fee dispute. Except in cases where the injured employee is the nonprevailing party, Labor Code §413.0312(g) requires the nonprevailing party in the contested case hearing to reimburse the Division for the costs of a SOAH proceeding. If an injured employee is a nonprevailing party, Labor Code §413.0312(g) requires the insurance carrier to reimburse the Division for the SOAH costs unless otherwise agreed by the parties. Reimbursement must be remitted to the Division not later than the 30th day after the date of receiving a bill or statement from the Division. Labor Code §413.0312(k) requires the Commissioner of Workers' Compensation to adopt rules that establish a procedure that will enable the Division to charge a party to a medical fee dispute, other than an injured employee, for the costs of services provided by SOAH in medical fee dispute cases.

In accordance with §44 of HB 2605, the above described legislative amendments affecting medical fee disputes apply only to the appeal of a medical fee dispute that is based on a review conducted by the Division on or after June 1, 2012. An appeal of a medical fee dispute that is based on a review conducted by the Division before that date is governed by the prior law.

HB 2605 also enacted legislative changes that affect the manner in which a person appeals a decision by an independent review organization (IRO). Specifically, this bill (1) amended Insurance Code §1305.355 and added §1305.356 which concerns the appeal of an IRO decision involving health care in a certified workers' compensation network; (2) amended Labor Code §413.031(k) and (k-1) which concerns the appeal of an IRO decision involving health care provided outside of a certified network; and (3) enacted Labor Code §504.054 which concerns the appeal of an IRO decision involving health care provided by a political subdivision in accordance with Labor Code §504.053(b)(2). These statutory amendments provide that a party to a medical necessity dispute that remains unresolved after review by an IRO is entitled to a contested case hearing conducted by a Division hearing officer in accordance with Labor Code §413.0311. Additionally, the new provisions require that in cases involving health care in a certified network, the hearing officer conducting the hearing shall consider evidence-based treatment guidelines adopted by the certified network. In a similar manner, the new statutory provisions in the Labor Code require that in cases involving health care provided by a political subdivision under Labor Code §504.053(b)(2), the hearing officer conducting the hearing shall consider any treatment guidelines adopted by the political subdivision or pool if those guidelines meet the standards provided by Labor Code §413.011(e). A party who has exhausted all administrative remedies and who is aggrieved by a final decision of the Division's hearing officer may seek judicial review of the decision in the manner provided for judicial review of a contested case under Subchapter G, Chapter 2001, Government Code.

As stated above, this proposal is also designed to implement provisions in SB 809 which concern a party's right to seek judicial review after exhausting the applicable administrative remedies in the medical fee dispute or review of the IRO decision as described above. HB 2605 provides for judicial review for network appeals. SB 809 amends Labor Code §413.031(k-1) and specifies the time frames for a party seeking judicial review. In a medical fee dispute, SB 809 provides in Labor Code §413.031(k-1) that the party seeking judicial review of a SOAH decision must file suit not later than the 45th day after the date on which SOAH mailed the party the notification of the decision. For purposes of Labor Code §413.031(k-1), the mailing date is considered to be the fifth day after the date the decision was issued by SOAH. In an appeal of an IRO decision, SB 809 provides in Labor Code §413.0311(d) that a party seeking judicial review of a decision of a Division hearing officer must file suit not later than the 45th day after the date on which the Division mailed the party the decision of the hearings officer. The mailing date is considered to be the fifth day after the date the decision of the hearings officer was filed with the Division.

Finally, this proposal implements provisions in HB 2605 that concern a first responder's claim for medical benefits. HB 2605 enacted Labor Code §504.055 and §504.056 which apply to a first responder as defined in Labor Code §504.055 who sustains a serious bodily injury in the course and scope of employment. These statutes require the political subdivision, Division, and insurance carrier to accelerate and give priority to a first responder's claim for medical benefits, including all health care required to cure or relieve the effects naturally resulting from a compensable injury. These statutes further require the Division to accelerate, under rules adopted by the Commissioner, a contested case hearing requested by or an appeal submitted by a first responder regarding the denial of a claim for medical benefits. A first responder is required to provide notice to the Division and IRO that the contested case or appeal involves a first responder.

This proposal is necessary to implement and incorporate the above described amendments and new provisions into existing Division rules that govern medical dispute resolution. This proposal conforms §133.307 to the appeal process provisions in HB 2605 for medical fee disputes and conforms §133.308 to HB 2605 for the appeal of medical necessity disputes following decisions by IROs. This proposal also incorporates into §133.307 and §133.308 provisions that will provide for the accelerated review of a covered first responder's claim for medical benefits.

The Division is also proposing other amendments that are more fully described in the changes proposed for each rule below that are intended to provide system participants with a clearer understanding of the appeals process for the appeal of MFDR Section decisions and IRO decisions. The Division is also proposing other amendments to provide the Division with greater flexibility in performing the appeals processes. Finally, other amendments are proposed throughout the rule text to: (i) correct typographical, grammatical, and punctuation errors in the current rule text; (ii) re-letter and renumber rule text, (iii) clarify existing provisions in the proposed rules; (iv) conform terminology used in the rules such as adding the language "in the form and manner required by the division" to the text; and (v) make non-substantive changes in terminology such as changing the term "Department" to "department", "Department's" to "department's", "Division of Workers' Compensation" or "Division" to "division", "Division's" to "division's", and adding the words "health care" to "provider", "injured" to "employee", and "insurance" to "carrier." The terms "provider" and "MDR" are proposed for deletion and to be replaced with the terms "health care provider" and "medical fee dispute resolution", respectively. In some instances, the acronym "MDR" is proposed for deletion and is proposed to be changed to "MFDR." The term "MDR" has meant medical dispute resolution. The proposed term "MFDR" means medical fee dispute resolution and the process for the resolution of medical fee disputes is the focus of §133.307.

In addition to these proposed amendments to §133.307 and §133.308, the Division is simultaneously proposing amendments to Chapter 144, Subchapter A of this title (relating to Arbitration) which are published elsewhere in this issue of the Texas Register.

Proposed amendments to §133.307.

Section 133.307 applies to non-network medical fee dispute resolution (MFDR). The proposed deletion of portions of this rule is necessary to clarify the MFDR process and implement the changes made by HB 2605 to the MFDR process. The reference to "the form DWC-60 table listing the specific disputed health care in the form and manner prescribed by the Division" throughout this rule is proposed for deletion because the information required to be included with the requests for medical dispute resolution are now contained in proposed amendments to §133.307. The form DWC-60 is being revised by the Division.

In accordance with Section 44 of HB 2605, proposed changes to subsection (a) of this section amend the applicability provision and apply the proposed rule to requests for MFDR that are filed with the Division on or after June 1, 2012. Fee disputes filed with the Division prior to June 1, 2012, are governed by the statutes and rules in effect immediately before the effective date of HB 2605. This proposed amendment is necessary because under §44 of HB 2605, the new appellate process applies only to the appeal of a medical fee dispute that is based on a review conducted by the Division on or after June 1, 2012. Additionally, since HB 2605 now places the financial liability of SOAH costs on the non-prevailing party in a medical fee dispute, this proposed applicability date is necessary because it will ensure that parties requesting appeals of medical fee disputes at SOAH will have clear notification of their potential liability in the cases. Current subsection (a)(2) of this section is proposed for deletion because HB 2605 has changed the appeal process for MFDR and paragraph (2) of this subsection will no longer apply to those requests to the Division for MFDR filed on or after June 1, 2012.

Section 133.307(a)(3) is proposed in order to implement new Labor Code §504.055 and §504.056 which provide that an injured first responder's claim for medical benefits, including all health care required to cure or relieve the effects naturally resulting from a compensable injury, described by Labor Code §504.055(b) shall be accelerated by the Division and given priority. Section 133.307(a)(3) further provides that the first responder shall provide notice to the division that the request involves a first responder.

Section 133.307(b) describes who may request MFDR. Proposed new §133.307(b)(5) clarifies that subclaimants may also be requestors in accordance with §140.6 of this title (relating to Subclaimant Status: Establishment, Rights, and Procedures), §140.7 of this title (relating to Health Care Insurer Reimbursement under Labor Code §409.0091), or §140.8 of this title (relating to Procedures for Health Care Insurers to Pursue Reimbursement of Medical Benefits under Labor Code §409.0091), as applicable. Section 140.6 is applicable to a subclaim pursued under Labor Code §409.009, including a subclaim pursued by a health care insurer. Sections 140.7 and 140.8 are applicable to subclaims by a heath care insurer based on information received under Labor Code §402.084(c-3) which pertains to an insurance carrier or its authorized representative submitting a monthly written request for claims information to the Division. This proposed amendment is necessary in order to update the listing in this rule regarding who may be a requestor in a fee dispute under this rule. Subclaimants must also comply with all the applicable subclaim rules.

Proposed amendments to §133.307(c) clarify and describe the procedure for requesting MFDR and what must be included in the request. Proposed amendments to subsection (c)(1) of this section are necessary to clarify that a decision by the MFDR Section that a request was not timely filed is not a dismissal by the MFDR Section and may be appealed pursuant to proposed subsection (g) of this section.

Proposed amendments to §133.307(c)(2) describe the information that must be included in requests for MFDR by health care providers, subclaimants, and pharmacy processing agents (PPAs). The proposed amendments delete from this rule the reference to the DWC-60 table and delineate in the rule text the data elements that must be included in a request for MFDR. These proposed amendments are necessary in order to provide clarity in Division rules on the information required to be included in a request for MFDR. Current §133.307(c)(2)(F)(i) is proposed for deletion because it has been reworded and moved to proposed §133.307(c)(2)(F) which states "the treatment or service code(s) in dispute."

The proposed changes to §133.307(c)(2)(J) clarify that the requestor must provide a paper copy of all medical bills related to the dispute as originally submitted to the insurance carrier in accordance with Chapter 133 of this title and a paper copy of all medical bill(s) submitted to the insurance carrier for reconsideration in accordance with §133.250 of this chapter. The proposed amendments to §133.307(c)(2)(K) require the requestor to provide a paper copy of each explanation of benefits (EOB) related to the dispute as originally submitted to the health care provider in accordance with Chapter 133 of this title. Chapter 133 of this title includes Division rules related to general rules for medical billing and processing; health care provider billing procedures; medical bill processing/audit by insurance carrier; dispute of medical bills; and electronic medical billing, reimbursement, and documentation. These proposed amendments to §133.307(c)(2)(J) and (K) require the submission of paper copies of the medical bills, reconsideration requests, and EOBs. If medical bills, reconsideration requests, or explanation of benefits (remittance advice) were processed electronically in accordance with Chapter 133, Subchapter G, the parties may submit the documentation using the paper forms and formats described in Chapter 133, or they may choose to provide other documentation that contains all the same information found in the paper equivalent.

Section 133.307(c)(2)(O) allows a requestor in cases where the Division has not established a maximum allowable reimbursement to submit documentation supporting that the amount sought is a fair and reasonable rate of reimbursement. The proposed amendments to this subparagraph allow a requestor to also submit such supporting documentation in cases where the health care involves pharmaceutical services and the Division has not established a reimbursement rate for the service.

Proposed §133.307(c)(2)(Q) allows for any other documentation to be sent with the request that the requestor deems applicable to the medical dispute. The purpose of this proposed language is to allow other relevant records related to the date of service in dispute to be sent with the request and does not limit the records that may be sent to only those records that contain the exact date of service that is in dispute since other relevant records related to the service in dispute may be available to support a party's position.

Section 133.307(c)(3) describes what is required to be included in a request for MFDR by an injured employee. The language "the disputed amount that includes a description of the health care" is proposed for deletion in proposed subsection (c)(3)(G) of this section because it has been reworded and is proposed for inclusion in proposed subsection (c)(3)(B) - (F) of this section.

Section 133.307(d) describes the procedure for filing a response to a request for MFDR and what must be included in the response. Proposed amendments to subsection (d)(2) of this section remove the requirement of a respondent to complete the Division's Form DWC-60 and now specifies the information and records that are required to be submitted by the respondent to the Division. Consistent with the amendments to subsection (c) of this section, proposed amendments to subsection (d)(2)(B) and (C) of this section delete the requirement of "using an appropriate DWC approved paper billing format" and provides for the submission of a paper copy of all initial and reconsideration EOBs related to the dispute not submitted by the requestor, and a paper copy of all medical bills related to the dispute if different from that originally submitted to the insurance carrier. As with the proposed amendments to §133.307(c)(2)(J) and (K), these proposed amendments only require the respondent to provide documentation using the paper forms and formats described in Chapter 133, or they may choose to provide other documentation that contains all the same information found in the paper equivalent.

Current subsection (d)(3) of this section is proposed for deletion in order to propose one set of instructions in the rule regardless of who the respondent is or what information is required to be included with the responses.