The Texas Department of Insurance (Department), Division of Workers' Compensation (Division) adopts amendments to §134.110, concerning Reimbursement of Injured Employee for Travel Expenses Incurred; §134.502, concerning Pharmaceutical Services; and §134.600, concerning Preauthorization, Concurrent Utilization Review, and Voluntary Certification of Health Care. These sections are adopted with changes to the proposed text published in the November 1, 2013, issue of the Texas Register (38 TexReg 7611). There was not a request for a public hearing submitted to the Division.

In conjunction with this adoption order, the Division is adopting amendments to 28 TAC §133.2, concerning Definitions; §133.240, concerning Medical Payments and Denials; §133.250, concerning Reconsideration for Payment of Medical Bills; and §133.305, concerning MDR (medical dispute resolution) - General. The adoption of amendments to §§133.2, 133.240, 133.250, and 133.305 are also published in this issue of the Texas Register.

In response to comments on the proposal, the Division made non-substantive changes to proposed §134.600(h). The Division moved the phrase "issue an adverse determination on each request" from the end of the sentence to the middle and deleted "received by the insurance carrier" for clarity. In addition to the changes made as a result of comments, the Division made non-substantive changes including adding the word "the" and the phrase "of the health care services" to §134.600(o)(4) to be consistent with §133.240(q) and §133.250(k). None of the changes made in this adoption to the proposed text materially alter issues raised in the proposal, introduce new subject matter, or affect persons other than those previously on notice.

In addition, the Division adopts non-substantive changes throughout the text of §§134.110, 134.502 and 134.600. These non-substantive changes include revising references from "carrier" to "insurance carrier" in §134.502; adding the term "utilization" between the terms "concurrent" and "review" in §134.600; renumbering subsections for clarity; changing the capitalization of the words "Division" and "Department"; and deleting the word "Texas" from the phrase "Texas Labor Code" to conform to current agency style.

These amendments are necessary to implement House Bill 4290, 81st Legislature, Regular Session, effective September 1, 2009, which revises the definitions of "adverse determination" and "utilization review" in Insurance Code Chapter 4201 to include retrospective reviews and determinations regarding the experimental or investigational nature of a service.

These amendments are also necessary for the Division to comply with the requirement of Labor Code §402.00114 to regulate and administer the business of workers' compensation in Texas and ensure that Labor Code Title 5 and other laws regarding workers' compensation are executed. Under Labor Code §402.00116, the Division is required to administer and enforce Labor Code Title 5, other workers' compensation laws of this state, and other laws applicable to the Division.

In accordance with Government Code §2001.033(a)(1), the Division's reasoned justification for these rules is set out in this order, which includes the preamble. The entire adoption order is part of the reasoned justification for the new sections. The following paragraphs include a detailed, section-by-section description and reasoned justification of all of the amendments necessary to harmonize the amendments with 28 TAC §§19.2001 - 19.2017 (Subchapter U), concerning Utilization Reviews for Health Care Provided Under Workers' Compensation Coverage published in the February 15, 2013, issue of the Texas Register (38 TexReg 892). Harmonization of these adopted sections with Subchapter U is beneficial because consistency benefits both system participants and injured employees. The adopted amendments to §§134.110, 134.502, and 134.600 are also important for reasons set out in the adoption order of Subchapter U.

The Division adopts these amendments to: (1) define and incorporate current procedural requirements concerning "adverse determinations" and "reasonable opportunity" and (2) reference the requirements for compliance with 28 TAC §19.2009, concerning Notice of Determinations Made in Utilization Review. The adopted amendments to §134.110 implement Labor Code §408.004 and §408.0041. Labor Code §408.004(c) pertains to medical examinations that injured employees may be required to submit to and requires insurance carriers to pay for those examinations and the reasonable expenses incident to the employees submitting to those examinations. Labor Code §408.0041(h) requires insurance carriers to pay for designated doctor examinations described in Labor Code §408.0041(a), (f), and (f-2), unless it is otherwise prohibited by law, and the reasonable expenses incident to the employee in submitting to the examination.

Section 134.110 addresses Reimbursement of Injured Employee for Travel Expenses Incurred. Amended §134.110(a) adds a new paragraph (2) that provides that an injured employee may request reimbursement from the insurance carrier if the injured employee has incurred travel expenses when the distance traveled to attend a designated doctor examination, required medical examination, or post designated doctor treating or referral doctor examination is greater than 30 miles one-way. Amended §134.110(a)(2) is necessary to implement Labor Code §408.004 and §408.0041. Labor Code §408.004(c), in part, requires insurance carriers to pay for certain required injured employee medical examinations and the reasonable expenses incident to the employees submitting to those examinations. Labor Code §408.0041(h), in part, requires insurance carriers to pay for certain designated doctor examinations and the reasonable expenses incident to the employee in submitting to the examination.

Amended §134.110(a)(2) is also necessary to align with 28 TAC §126.6 and §126.17, concerning Required Medical Examination and Guidelines for Examination by a Treating Doctor or Referral Doctor After a Designated Doctor Examination to Address Issues Other Than Certification of Maximum Medical Improvement and the Evaluation of Permanent Impairment, respectively. Title 28 TAC §126.6 requires injured employees to submit to required medical examinations and requires insurance carriers to pay for reasonable travel expenses incurred by the employees in submitting to required medical examinations, as specified in 28 TAC Chapter 134 concerning Benefits--Guidelines for Medical Services, Charges, and Payments. Title 28 TAC §126.17 requires the insurance carriers to reimburse injured employees for all reasonable travel expenses as specified in 28 TAC Chapter 134, Subchapter B, concerning Miscellaneous Reimbursement. Amended §134.110(a)(2) is necessary to reimburse injured employees for travel expenses incurred for post designated doctor treating or referral doctor examinations more than 30 miles away.

Existing subsection (g) of §134.110 is deleted because its effective date is no longer necessary.

Section 134.502 addresses Pharmaceutical Services. Amended §134.502(b) clarifies the existing requirement that doctors shall prescribe drugs in accordance with 28 TAC §134.530 and §134.540, concerning Requirements for Use of the Closed Formulary for Claims Not Subject to Certified Networks and Requirements for Use of the Closed Formulary for Claims Subject to Certified Networks, respectively. Title 28 TAC §134.530 and §134.540 were adopted effective January 17, 2011 (35 TexReg 11344).

Amended §134.502(d) changes the term "pharmacists" to the phrase "pharmacies and pharmacy processing agents" for consistency with Labor Code §413.0111, relating to processing agents. Amended §134.502(d) is also consistent with 28 TAC §133.307, concerning MDR of Fee Disputes, and 133.10, concerning Required Billing Forms/Formats. Title 28 TAC §133.307 allows qualified pharmacy processing agents to be requestors in medical fee disputes over the reimbursement of medical bills. Title 28 TAC §133.10 contains required billing forms and formats for pharmacies and pharmacy processing agents.

Amended §134.502(d) also changes the outdated citation from 28 TAC §134.800(d) to 28 TAC Chapters 133 and 134. Title 28 TAC §134.800 pertained to required billing forms and information prior to its repeal on May 2, 2006. Required billing forms and information are now codified in 28 TAC Chapter 133, concerning General Medical Provisions and 28 TAC Chapter 134, concerning Benefits--Guidelines for Medical Services, Charges, and Payments.

Amended §134.502(e) and (g) change the term "reasonableness or medical necessity" to "adverse determination" for consistency with the definition of the term "adverse determination" in Insurance Code §4201.002(1) and the injured employee's entitlement to all healthcare reasonably required under Labor Code §408.021(a). Amended §134.502(e) and (g) also correspond with the definition for "adverse determination" in 28 TAC §19.2003(b)(1) and the definition in new §134.600(a)(1).

Amended §134.502(f) deletes the word "working" so that the prescribing doctor is required to provide a statement of medical necessity to the requesting party no later than the 14th calendar day after receipt of the request. This change is necessary because the provision of 14 working days delays the receipt of statements of medical necessity from prescribing doctors by pharmacy billing managers and pharmacy processing agents who are required to comply with timeframes contained in Division rules. System participants will be able to more easily monitor the timeframe to provide a statement of medical necessity under the rule for compliance purposes.

Amended §134.502(g) updates the citation from 28 TAC §133.304 to 28 TAC §133.240 because 28 TAC §133.304, concerning Medical Payments and Denials was repealed and re-codified as 28 TAC §133.240, concerning Medical Payments and Denials, in the April 28, 2006, issue of the Texas Register (31 TexReg 3544), effective May 2, 2006.

Section 134.600 addresses Preauthorization, Concurrent Utilization Review, and Voluntary Certification of Health Care. Amended §134.600 adds the term "utilization" between the terms "concurrent" and "review" in the title of §134.600 and in §134.600(a)(3), (a)(5), (a)(10), (c)(1)(C), (e), (f), (i)(2), (l), (o), (o)(2)(B), (q), (r), and (t) to conform to the term "concurrent utilization review" in 28 TAC §19.2003(b)(8).

Amended §134.600 adds new (a)(1) which defines "adverse determination" to correspond with the definition in 28 TAC §19.2003(b)(1). However, the definition of "adverse determination" in 134.600(a)(1) deviates from the statutory definition of "adverse determination" in Insurance Code §4201.002(1) concerning Definitions. The Division must exclude "experimental or investigational services" from the definition of "adverse determination," because Labor Code §408.021 entitles an injured employee subject to either network coverage or non-network coverage to all medically necessary health care services, including experimental and investigational health care services. Pursuant to Insurance Code §4201.054(c), Labor Code Title 5 prevails if it conflicts with Insurance Code Chapter 4201. The Division also notes that experimental or investigational health care services for injured employees subject to non-network coverage must be preauthorized pursuant to Labor Code §413.014 and an adverse determination may not be issued solely because the health care is experimental or investigational.

Amended §134.600(a)(3) clarifies that concurrent utilization review is a form of utilization review to implement Insurance Code Chapter 4201 and to correspond with the definition for "concurrent utilization review" in 28 TAC §19.2003(b)(8).

Amended §134.600(a)(8) changes the definition of "preauthorization" in existing §134.600(a)(8) to correspond with the definition in 28 TAC §19.2003(b)(26).

Amended §134.600 adds new (a)(9) which defines "reasonable opportunity" to implement Insurance Code §4201.206 and to correspond with 28 TAC §19.2003(b)(28).

Amended §134.600(e) adds the requirement that insurance carriers and utilization review agents comply with the requirements of 28 TAC §19.2012 to clarify the combined applications of 28 TAC §134.600(e), §19.2012, and Chapter 134, Subchapter F, concerning Pharmaceutical Benefits. Title 28 TAC §19.2002(b)(3) provides that if there is a conflict between Subchapter U, including §19.2012, and rules adopted by the commissioner of workers' compensation, the rules adopted by the commissioner of workers' compensation prevail. Amended §134.600(e) applies to insurance carriers and utilization review agents who are required to have and implement procedures when responding to requests for drugs that require preauthorization if the injured employee has received or is currently receiving the requested drugs and the adverse determination could lead to a medical emergency. Amended §134.600(e) deletes the phrase "by the insurance carrier" because the Division recognizes that the party directly responding to requests for preauthorization may be the insurance carrier if the insurance carrier is a certified utilization review agent or the insurance carrier's utilization review agent.

Amended §134.600(g)(3) deletes the phrase "medical necessity and/or" to correspond with the definition of "adverse determination" in Insurance Code §4201.002(1) and Subchapter U. Amended §134.600(g)(3) - (5), (h), (i), (m), (o), (o)(1) - (2), (o)(5), and (t) add the term "adverse determination" to conform to Insurance Code §4201.002(1) and Subchapter U and delete the outdated terminology referring to denials.

Additionally, amended §134.600(g)(3), (g)(4) and (g)(5) make non-substantive changes of the term "injury/diagnosis" to "injury or diagnosis." Section 134.600(g)(3) requires that if denying the request, the insurance carrier shall indicate whether it is issuing an adverse determination, and/or whether the denial is based on an unrelated injury or diagnosis in accordance with §134.600(m) of this section.

Amended §134.600(g)(4) allows the requestor or injured employee to file an extent of injury dispute upon receipt of an insurance carrier's response which includes a denial due to an unrelated injury or diagnosis, regardless of whether an adverse determination was also issued. Amended §134.600(g)(4) is necessary for consistency with the definition of the term "adverse determination" in Insurance Code §4201.002(1) and to correspond with 28 TAC §19.2003(b)(1).

Amended §134.600(g)(5) provides that requests which include a denial due to an unrelated injury or diagnosis may not proceed to medical dispute resolution based on the denial of unrelatedness. However, requests which include the dispute of an adverse determination may proceed to medical dispute resolution for the issue of medical necessity in accordance with §134.600(o) of this section. Amended §134.600(g)(5) is necessary for consistency with the definition of the term "adverse determination" in Insurance Code §4201.002(1) and to correspond with 28 TAC §19.2003(b)(1).

Amended §134.600(h) requires the insurance carrier to "either approve or issue an adverse determination on each request based solely on the medical necessity of the health care required to treat the injury..." for consistency with the definition of the term "adverse determination" in Insurance Code §4201.002(1) and to correspond with 28 TAC §19.2003(b)(1).

Amended §134.600(i) requires the insurance carrier to contact the requestor or injured employee within the required timeframes by telephone, facsimile, or electronic transmission with its decision to approve the preauthorization or concurrent utilization review request; issue an adverse determination on the request; or deny the request under §134.600(g) because it relates to an unrelated injury or diagnosis. Amended §134.600(i) is necessary for consistency with the definition of the term "adverse determination" in Insurance Code §4201.002(1) and to correspond with 28 TAC §19.2003(b)(1). Amended §134.600(i)(1) - (2) delete the word "within" and add the language "within the following timeframes" for clarification.

Amended §134.600(j) requires the insurance carrier to send written notification of the approval of the request; adverse determination on the request; or denial of the request under §134.600(g) because of an unrelated injury or diagnosis. Amended §134.600(j) is necessary to update the terminology in §134.600(j) to correspond with the definition for "adverse determination" in Insurance Code §4201.002(1) and 28 TAC §19.2003(b)(1).

Amended §134.600(l)(4) adds a fourth requirement for insurance carrier approvals, which requires insurance carriers to include the insurance carrier's preauthorization approval number in its approval of a preauthorization request. Section 134.600(l)(4) provides that the preauthorization approval number must conform to the standards described in 28 TAC §19.2009(a)(4). Amended §134.600(l)(4) is necessary to align the requirements of this section with the medical billing requirements in 28 TAC Chapter 133, Subchapters B and G, concerning Health Care Provider Billing Procedures; and Electronic Medical Billing, Reimbursement, and Documentation; respectively, which require the inclusion of a preauthorization number on medical bills, if applicable.

Amended §134.600(m) requires insurance carriers to comply with 28 TAC §19.2010 and afford requestors a reasonable opportunity to discuss the clinical basis for the adverse determination prior to the insurance carrier issuing the adverse determination. Further, the notice of adverse determination must comply with the requirements of 28 TAC §19.2009 and include a plain language description of the complaint and appeal process. Amendments to §134.600(m) are necessary to streamline the requirements and harmonize with Insurance Code §4201.456 and 28 TAC §§19.2010 and 19.2009. These conforming changes enable the monitoring of whether a reasonable opportunity for discussion was offered and the collecting of information on peer-to-peer discussion results to ensure compliance with utilization review requirements.