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[(q)] Defense. A carrier may claim a defense to a medical necessity dispute if the carrier timely complies with the IRO decision with respect to the medical necessity or appropriateness of health care for an employee. Upon receipt of an IRO decision for a retrospective medical necessity dispute that finds that medical necessity exists, the carrier must review, audit, and process the bill. In addition, the carrier shall tender payment consistent with the IRO decision, and issue a new explanation of benefits (EOB) to reflect the payment within 21 days upon receipt of the IRO decision. (t)[(r)] Appeal. A decision issued by an IRO is not considered an agency decision and neither the Department nor the Division are considered parties to an appeal. In a Contested Case Hearing (CCH), a decision issued by an IRO carries presumptive weight that may only be overcome by a preponderance of evidence-based medical evidence to the contrary. Appeals of IRO decisions will be as follows: (1)Non-Network Appeal Procedures. A party to a medical necessity dispute may seek review of a dismissal or decision as follows: [A carrier shall comply with the IRO decision in accordance with Labor Code §413.031(m). A party to a medical necessity dispute may seek judicial review of the IRO decision by filing a petition in a Travis County district court not later than the 30th day after the date on which the decision is received by the appealing party. The parties will be deemed to have received the decision on the acknowledgement date as defined in §102.5 of this title (relating to General Rules for Written Communications to and from the Commission). Any decision that is not timely appealed becomes final. A party to a medical necessity dispute who appeals the decision shall, at the time the petition is filed, send a copy of the petition for judicial review to the IRO that issued the decision being appealed, and request that the IRO provide a record for the appeal. The party requesting the record shall pay the IRO copying costs for the records.] (A)A party to a retrospective medical necessity dispute in which the amount billed is greater than $3,000 may request a hearing before the State Office of Administrative Hearings (SOAH) by filing a written request for a SOAH hearing with the Division's Chief Clerk of Proceedings in accordance with §148.3 of this title (relating to Requesting a Hearing). The party appealing the IRO decision shall deliver a copy of its written request for a hearing to all other parties involved in the dispute. (B)A party to a retrospective medical necessity dispute in which the amount billed is less than or equal to $3,000 or an appeal of an IRO decision regarding determination of the concurrent or prospective medical necessity for a health care service may appeal the IRO decision by requesting a Division CCH conducted by a Division hearing officer. A benefit review conference is not a prerequisite to a Division CCH under this subparagraph. (i)The written appeal must be filed with the Division's Chief Clerk no later than 20 days after the date the IRO decision is sent to the appealing party and must be filed in compliance with Division rules. The Division shall deem a request to be filed on the date the Division's Chief Clerk receives the request. (ii)The party appealing the IRO decision shall deliver a copy of its written request for a hearing to all other parties involved in the dispute. The IRO is not required to participate in the Division CCH or any appeal. (iii)Except as otherwise provided in this section, a Division CCH shall be conducted in accordance with Chapters 140 and 142 of this title (relating to Dispute Resolution/General Provisions and Benefit Contested Case Hearing). (iv)Prior to a Division CCH, a party may submit a request for a letter of clarification by the IRO to the Division's Chief Clerk. A copy of the request for a letter of clarification must be provided to all parties involved in the dispute at the time it is submitted to the Division. A request for a letter of clarification may not ask the IRO to reconsider its decision or issue a new decision. (I)A party's request for a letter of clarification must be submitted to the Division no later than 10 days before the date set for hearing. The request must include a cover letter that contains the names of the parties and all identification numbers assigned to the hearing or the independent review by the Division, the Department, or the IRO. (II)The Department will forward the party's request for a letter of clarification by the IRO to the IRO that conducted the independent review. (III)The IRO shall send a response to the request for a letter of clarification to the Department and to all parties that received a copy of the IRO's decision within 5 days of receipt of the party's request for a letter of clarification. The IRO's response is limited to clarifying statements in its original decision; the IRO shall not reconsider its decision and shall not issue a new decision in response to a request for a letter of clarification. (IV)A request for a letter of clarification does not alter the deadlines for appeal. (v)At a Division CCH, evidence shall be limited to: (I)the request for preauthorization, concurrent, or retrospective review; (II)the request denial; (III)the request for reconsideration and the reconsideration denial; (IV)the request for independent review filed with the carrier or the carrier's URA; (V)the documents submitted to the IRO by the carrier or the carrier's URA; (VI)all additional information obtained and considered by the IRO; (VII)any letter of clarification prepared by the IRO that conducted the independent review; and (VIII)testimony from witnesses whose identity is reasonably disclosed in the documentation submitted for review pursuant to this clause. (IX)For good cause other evidence may be admitted. Good cause includes evidence pertaining to information provided to and reasonably considered by the IRO that has not previously been exchanged by one party to the other. (vi)A decision becomes final and appealable when issued by a Division hearing officer. A party who has exhausted all of its applicable administrative remedies under this subparagraph and who is aggrieved by a final decision of the hearing officer may seek judicial review of the decision. Judicial review under this subparagraph shall be conducted in the manner provided for judicial review of contested cases under Chapter 2001, Subchapter G of the Government Code. (vii)Upon receipt of a court petition seeking judicial review of a Division CCH held under this subparagraph, the Division shall prepare and submit to the district court a certified copy of the entire record of the Division CCH under review. (I)The following information must be included in the petition or provided to the Division by cover letter: (-a-)Any applicable Division docket number for the dispute being appealed; (-b-)the names of the parties; (-c-)the cause number; (-d-)the identity of the court; and (-e-)the date the petition was filed with the court. (II)The record of the hearing includes: (-a-)all pleadings, motions, and intermediate rulings; (-b-)evidence received or considered; (-c-)a statement of matters officially noticed; (-d-)questions and offers of proof, objections, and rulings on them; (-e-)any decision, opinion, report, or proposal for decision by the officer presiding at the hearing and any decision by the Division; and (-f-)a transcription of the audio record of the Division CCH. (III)The Division shall assess to the party seeking judicial review expenses incurred by the Division in preparing the certified copy of the record, including transcription costs, in accordance with the Government Code §2001.177 (relating to Costs of Preparing Agency Record). Upon request, the Division shall consider the financial ability of the party to pay the costs, or any other factor that is relevant to a just and reasonable assessment of costs. (C)[(2)] [Record for Non-Network Appeal.] If a party to a medical necessity dispute properly requests review of an IRO decision by SOAH or through a Division CCH, [ files a petition for judicial review of the IRO decision,] the IRO, upon request, shall provide a record of the review and submit it to the requestor within 15 days of the request. The party requesting the record shall pay the IRO copying costs for the records. The record shall include the following documents that are in the possession of the IRO and which were reviewed by the IRO in making the decision including: (i)[(A)] medical records; (ii)[(B)] all documents used by the carrier in making the decision that resulted in the adverse determination under review by the IRO; (iii)[(C)] all documentation and written information submitted by the carrier to the IRO in support of the review; (iv)[(D)] the written notification of the adverse determination and the written determination of the reconsideration; (v)[(E)] a list containing the name, address, and phone number of each provider who provided medical records to the IRO relevant to the review; (vi)[(F)] a list of all medical records or other documents reviewed by the IRO, including the dates of those documents; (vii)[(G)] a copy of the decision that was sent to all parties; (viii)[(H)] copies of any pertinent medical literature or other documentation (such as any treatment guideline or screening criteria) utilized to support the decision or, where such documentation is subject to copyright protection or is voluminous, then a listing of such documentation referencing the portion(s) of each document utilized; (ix)[(I)] a signed and certified custodian of records affidavit; and (x)[(J)] other information that was required by the Department related to a request from a carrier or the carrier's URA for the assignment of the IRO. (2)[(3)] Network Appeal Procedures. A party to a medical necessity dispute may seek judicial review of a dismissal or the decision as provided in Insurance Code §1305.355 and Chapter 10 of this title (relating to Workers' Compensation Healthcare Networks). (u)[(s)] Non-Network Spinal Surgery Appeal. A party to a preauthorization or concurrent medical necessity dispute regarding spinal surgery may appeal the IRO decision in accordance with Labor Code §413.031(l) by requesting a Contested Case Hearing (CCH). (1)The written appeal must be filed with the Division Chief Clerk no later than 20 [10] days after the date the IRO decision is sent to the appealing party [receipt of the IRO decision] and must be filed in compliance with Division rules [§142.5(c) of this title (relating to Sequence of Proceedings to Resolve Benefit Disputes)]. (2)The CCH must be scheduled and held not later than 20 days after Division receipt of the request for a CCH. (3)The hearing and further appeals shall be conducted in accordance with Chapters 140, 142, and 143 of this title (relating to Dispute Resolution/General Provisions, Benefit Contested Case Hearing, and Review by the Appeals Panel). (4)The party appealing the IRO decision shall deliver a copy of its written request for a hearing to all other parties involved in the dispute. The IRO is not required to participate in the CCH or any appeal. (v)[(t)] Medical Fee Dispute Request. If the requestor [health care provider] has an unresolved fee dispute related to health care that was found medically necessary, after the final decision of the medical necessity dispute, the requestor [provider] may file a medical fee dispute in accordance with §133.305 and §133.307 of this subchapter (relating to MDR of Fee Disputes). (w)[(u)] Enforcement. If the Department believes that any person is in violation of the Labor Code, Insurance Code, or [and] related rules, the Department may initiate an enforcement action. Nothing in this section modifies or limits the authority of the Department or the Division.
This agency hereby certifies that the proposal has
been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office
of the Secretary of State on November 30, 2007
TRD-200706005 Norma
Garcia
General Counsel
Texas Department of Insurance, Division of Workers' Compensation
Earliest possible date of adoption: January 13, 2008
For further information, please call: (512) 804-4715
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