(2)The notification to the department [Department ] shall also include certification of the date and means by which the decision was sent to the parties. (p) [(q)] Insurance Carrier Use of Peer Review Report after an IRO Decision. If an IRO decision determines that medical necessity exists for health care that the insurance carrier denied and the insurance carrier utilized a peer review report on which to base its denial, the peer review report shall not be used for subsequent medical necessity denials of the same health care services subsequently reviewed for that compensable injury. (q) [(r)] IRO Fees. IRO fees will be paid in the same amounts as the IRO fees set by department [ Department] rules. In addition to the specialty classifications established as tier two fees in department [Department] rules, independent review by a doctor of chiropractic shall be paid the tier two fee. IRO fees shall be paid as follows: (1)In network disputes, a preauthorization, concurrent, or retrospective medical necessity dispute for health care provided by a network, the insurance carrier must remit payment to the assigned IRO within 15 days after receipt of an invoice from the IRO; (2)In non-network disputes, IRO fees for disputes regarding non-network health care must be paid as follows: (A)in a preauthorization or concurrent review medical necessity dispute or retrospective medical necessity dispute resolution when reimbursement was denied for health care paid by the injured employee, the insurance carrier shall remit payment to the assigned IRO within 15 days after receipt of an invoice from the IRO. (B)in a retrospective medical necessity dispute, the requestor must remit payment to the assigned IRO within 15 days after receipt of an invoice from the IRO. (i)if the IRO fee has not been received within 15 days of the requestor's receipt of the invoice, the IRO shall notify the department [Department] and the department [Department] shall dismiss the dispute with prejudice. (ii)after an IRO decision is rendered, the IRO fee must be paid or refunded by the nonprevailing party as determined by the IRO in its decision. (3)Designated doctor examinations requested by an IRO shall be paid by the insurance carrier in accordance with the medical fee guidelines under the Labor Code and related rules. (4)Failure to pay or refund the IRO fee may result in enforcement action as authorized by statute and rules [and removal from the Division 's Approved Doctor List]. (5)For health care not provided by a network, the non-prevailing party to a retrospective medical necessity dispute must pay or refund the IRO fee to the prevailing party upon receipt of the IRO decision, but not later than 15 days regardless of whether an appeal of the IRO decision has been or will be filed. (6)The IRO fees may include an amended notification of decision if the department [Department] determines the notification to be incomplete. The amended notification of decision shall be filed with the department [Department] no later than five working days from the IRO's receipt of such notice from the department [Department]. The amended notification of decision does not alter the deadlines for appeal. (7)If a requestor withdraws the request for an IRO decision after the IRO has been assigned by the department [ Department] but before the IRO sends the case to an IRO reviewer, the requestor shall pay the IRO a withdrawal fee of $150 within 30 days of the withdrawal. If a requestor withdraws the request for an IRO decision after the case is sent to a reviewer, the requestor shall pay the IRO the full IRO review fee within 30 days of the withdrawal. (8)In addition to department [Department] enforcement action, the division [Division] may assess an administrative fee in accordance with Labor Code §413.020 and §133.305 of this subchapter. (9)This section shall not be deemed to require an employee to pay for any part of a review. If application of a provision of this section would require an employee to pay for part of the cost of a review, that cost shall instead be paid by the insurance carrier. (r) [(s)] Defense. An insurance [A] carrier may claim a defense to a medical necessity dispute if the insurance carrier timely complies with the IRO decision with respect to the medical necessity or appropriateness of health care for an injured employee. Upon receipt of an IRO decision for a retrospective medical necessity dispute that finds that medical necessity exists, the insurance carrier must review, audit, and process the bill. In addition, the insurance 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. The decision of an IRO under Labor Code §413.031(m) is binding during the pendency of a dispute. (s) [(t)] Appeal of IRO decision. A decision issued by an IRO is not considered an agency decision and neither the department [Department] nor the division is [Division are] considered a party [parties] to an appeal. In a division Contested Case Hearing (CCH), the party appealing the IRO decision has the burden of overcoming the decision issued by an IRO by a preponderance of evidence-based medical evidence. A party to a medical dispute that remains unresolved after a review under Labor Code §504.053(d)(3) or Insurance Code §1305.355 is entitled to a contested case hearing in the same manner as a hearing conducted under Labor Code §413.0311. [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 at a division CCH as follows: [(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. The IRO is not required to participate in the SOAH hearing or any appeal.] (1) [(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 [Division] CCH conducted by a division [Division] hearing officer. A benefit review conference is not a prerequisite to a division [Division] CCH under this subparagraph. (A) [(i)] The written appeal must be filed with the division's [Division's] Chief Clerk of Proceedings no later than the later of the 20th day after the effective date of this section or 20 days after the date the IRO decision is sent to the appealing party and must be filed in the form and manner required by the division [ compliance with Division rules]. Requests that are timely submitted to a division [Division] location other than the division's [Division's] Chief Clerk of Proceedings, such as a local field office of the division [ Division], will be considered timely filed and forwarded to the Chief Clerk of Proceedings for processing; however, this may result in a delay in the processing of the request. (B) [(ii)] The party appealing the IRO decision shall send 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 [Division] CCH or any appeal. (C)[(iii)] Except as otherwise provided in this section, a division [Division] CCH shall be conducted in accordance with Chapters 140 and 142 of this title (relating to Dispute Resolution/General Provisions and Dispute Resolution/Benefit Contested Case Hearing). (D)At a division CCH, the hearing officer shall consider the treatment guidelines: (i)adopted by the network under Insurance Code §1305.304, for a network dispute; (ii)adopted by the division under Labor Code §413.011(e) for a non-network dispute; or (iii)adopted, if any, by the political subdivison or pool that provides medical benefits under Labor Code §504.053(b)(2) if those treatment guidelines meet the standards provided by Labor Code §413.011(e). (E) [(iv)] Prior to a division [Division] CCH, a party may submit a request for a letter of clarification by the IRO to the division's [Division's ] Chief Clerk of Proceedings. 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 [ Division]. [A request for a letter of clarification may not ask the IRO to reconsider its decision or issue a new decision.] (i) [(I)] A party's request for a letter of clarification must be submitted to the division [ 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 [Division], the department [Department], or the IRO. (ii) [(II)] The department may at its discretion [Department will] forward the party's request for a letter of clarification [by the IRO] to the IRO that conducted the independent review. The department will not forward to the IRO a request for a letter of clarification that asks the IRO to reconsider its decision or issue a new decision. (iii) [(III)] The IRO shall send a response to the request for a letter of clarification to the department [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) [(IV)] A request for a letter of clarification does not alter the deadlines for appeal. (F) [(v)] A party to a medical necessity dispute who has exhausted all administrative remedies may seek judicial review of the division's [Division's] decision. Judicial review under this paragraph shall be conducted in the manner provided for judicial review of contested cases under Chapter 2001, Subchapter G Government Code, and is governed by the substantial evidence rule. The party seeking judicial review under this section must file suit not later than the 45th day after the date on which the division mailed the party the decision of the hearing officer. The mailing date is considered to be the fifth day after the date the decision of the hearing officer was filed with the division. A decision becomes final and appealable when issued by a division [Division] hearing officer. If a party to a medical necessity dispute files a petition for judicial review of the division's [Division's] decision, the party shall, at the time the petition is filed with the district court, send a copy of the petition for judicial review to the division's [Division's ] Chief Clerk of Proceedings. The division [ Division] and the department [Department] are not considered to be parties to the medical necessity dispute pursuant to Labor Code §§413.031(k-2) and 413.0311(e). (G)[(vi)] Upon receipt of a court petition seeking judicial review of a division [Division ] CCH held under this subparagraph, the division [Division ] shall prepare and submit to the district court a certified copy of the entire record of the division [Division] CCH under review. (i)[(I)] The following information must be included in the petition or provided to the division [ Division] by cover letter: (I)[(-a-)] Any applicable division [Division] docket number for the dispute being appealed; (II)[(-b-)] the names of the parties; (III)[(-c-)] the cause number; (IV)[(-d-)] the identity of the court; and (V)[(-e-)] the date the petition was filed with the court. (ii)[(II)] The record of the hearing includes: (I)[(-a-)] all pleadings, motions, and intermediate rulings; (II)[(-b-)] evidence received or considered; (III)[(-c-)] a statement of matters officially noticed; (IV)[(-d-)] questions and offers of proof, objections, and rulings on them; (V)[(-e-)] any decision, opinion, report, or proposal for decision by the officer presiding at the hearing and any decision by the division [Division]; and (VI)[(-f-)] a transcription of the audio record of the division [Division] CCH. (iii)[(III)] The division [ Division] shall assess to the party seeking judicial review expenses incurred by the division [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 [ 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. (2)[(C)] If a party to a medical necessity dispute properly requests review of an IRO decision [by SOAH or through a Division CCH], 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: (A)[(i)] medical records; (B)[(ii)] all documents used by the insurance carrier in making the decision that resulted in the adverse determination under review by the IRO; (C)[(iii)] all documentation and written information submitted by the insurance carrier to the IRO in support of the review; (D)[(iv)] the written notification of the adverse determination and the written determination of the reconsideration; (E)[(v)] a list containing the name, address, and phone number of each health care provider who provided medical records to the IRO relevant to the review; (F)[(vi)] a list of all medical records or other documents reviewed by the IRO, including the dates of those documents; (G)[(vii)] a copy of the decision that was sent to all parties; (H)[(viii)] 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; (I)[(ix)] a signed and certified custodian of records affidavit; and (J)[(x)] other information that was required by the department [Department] related to a request from an insurance [a] carrier or the insurance carrier's URA for the assignment of the IRO. Cont'd...
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