I. INTRODUCTION.
This Memorandum of Understanding (MOU) is entered into between the Texas Workers' Compensation Commission (hereinafter TWCC) and the Texas Department of Insurance (hereinafter TDI), pursuant to the provisions of HB 3197, 75th Texas Legislature, i.e. Act of May 23, 1997, 75th Legislature, Regular Session, Chapter 904, Section 1, 1997 Texas Session Law Service 2846 (Vernon) [to be codified as an amendment to Texas Insurance Code article 21.58A, section 14(c)].
HB 3197 amended section 14(c) so that, except as otherwise provided, article 21.58A of the Insurance Code applies to utilization review of health care services provided to persons eligible for workers' compensation medical benefits under Title 5 of the Labor Code. It further provided that the Commissioner of Insurance shall regulate in the manner provided for by article 21.58A of the Insurance Code, a person who performs review of a medical benefit provided for under Chapter 408 of the Labor Code, but that section 14(c) of article 21.58A does not affect TWCC's authority to exercise the powers granted to it under Title 5 of the Labor Code (hereinafter "the workers' compensation act"). It also provided that in the event of a conflict between Art. 21.58A and Title 5, Labor Code, the latter prevails, and that TDI and TWCC may adopt rules and enter into memoranda of understanding as necessary to implement the amended section 14(c) of article 21.58A of the Insurance Code.
II. PURPOSE AND SCOPE.
The purpose of this MOU is to set forth those areas of regulation of utilization review (UR) agents and processes specific to workers' compensation medical benefits that are controlled and regulated by TWCC pursuant to the Texas Workers' Compensation Act (Texas Labor Code Title 5, Subtitle A) and TWCC rules and procedures, and those which are subject to regulation by TDI pursuant to Insurance Code Art. 21.58A and rules and procedures of TDI.
In delineating each agency's area of responsibility, TWCC acknowledges TDI's statutory role in the process of certification, revocation, renewal, and nonrenewal of certifications, and in taking appropriate enforcement action against UR agents. TDI acknowledges the legislative intent that, where conflict exists, the workers' compensation statute and rules shall prevail. TDI further acknowledges that SB 384 and HB 3197 of the 75th Texas Legislature were intended to ensure certification, quality, and other factors in the UR process, but that the law does not alter or change the current functions performed by TWCC which exist within the framework of the workers' compensation statute, rules, and procedures.
The provisions of this MOU apply as of the date it is executed by both parties and shall continue in force until terminated, upon 30 days written notice, or as modified by the parties. Nothing in this agreement is intended to be inconsistent with the statutory responsibilities of any party, nor shall any provision of this agreement be so construed. In addition to this MOU, the parties may propose and adopt rules consistent with their respective statutory authorities.
III. SPECIFIC TERMS AND CONDITIONS.
The parties to this MOU, TDI and TWCC, understand and agree to the following terms and conditions:
A. Certification.
1. TDI shall be responsible for certifying UR agents.
2. TDI shall propose to allow previously uncertified workers' compensation UR agents a grace period, to be specified upon adoption of rules concerning certification of UR agents performing workers' compensation utilization reviews, in which to submit their applications for certification. Under this proposal, agents will be allowed to continue to provide these services, subject to TDI action on their application.
3. TDI agrees that screening criteria, utilization review plans, and other pertinent materials that must be submitted in a certification application by a UR agent performing workers' compensation utilization reviews must reference compliance with applicable provisions of the workers' compensation act, TWCC rules, and TWCC fee and treatment guidelines, and TDI and TWCC will jointly develop rules and application requirements specific to those UR agents.
4. TDI and TWCC will review the process of "reconsiderations" by UR agents performing workers' compensation utilization reviews and insurers performing such reviews.
5. TDI will maintain a list of certified UR agents performing workers' compensation utilization reviews and such list will be updated and provided to TWCC no less than monthly. TDI will notify TWCC of any certification revocations or nonrenewals for such agents as they occur.
B. Specific exceptions applicable to workers' compensation cases based upon either conflicts between Insurance Code art. 21.58A and the workers' compensation act or the authority of the TWCC to exercise its powers under the workers' compensation act.
1. While UR agents performing workers' compensation utilization reviews are subject to certain certification requirements, TDI's regulation of UR review will not apply to recommendations for spinal surgery or to retrospective review of benefits and services (essentially, fee disputes) that are not related to medical necessity; these areas will continue to be regulated by TWCC and governed entirely by the workers' compensation act and rules and procedures of TWCC.
2. While UR agents performing workers' compensation utilization reviews are subject to certain certification requirements, requests for preauthorization of workers' compensation medical benefits will continue to be subject to the TWCC rules. In addition, appeals of determinations by the UR agent performing workers' compensation utilization reviews or the insurer in preauthorization cases will be handled under the procedures of the workers' compensation act and the TWCC rules.
3. Retrospective reviews concerning fee disputes relating to medical necessity will be subject to the provisions of the TDI rules applicable to UR agents and insurers except that appeals of adverse determinations by the UR agent performing workers' compensation utilization reviews or the insurer will be handled under the procedures of the workers' compensation act and the TWCC rules.
4. The provisions of Insurance Code article 21.58A (as amended by SB 386) concerning independent review organizations, along with applicable TDI rules, will not be applicable to workers' compensation utilization review, the appeals process for which is entirely governed by the workers' compensation act and applicable TWCC rules.
5. The workers' compensation act and the TWCC rules do not require pre-authorization for emergency medical care. Any portions of Insurance Code article 21.58A and/or 28 TEX. ADMIN. CODE ''19.1702 et seq., as presently adopted or with amendments resulting from legislation of the 75th Legislature, relating to emergency care shall not apply to workers' compensation utilization review.
C. Definitions.
1. Where a conflict exists between terms used in Insurance Code article 21.58A and comparable terms as defined in the workers' compensation act, the latter shall prevail except where otherwise specifically provided.
2. TDI and TWCC will work jointly to compile, by rule or otherwise, a list of agreed-upon definitions.
D. Complaints.
1. Any complaints received by TWCC concerning a UR agent's certification or failure to meet or abide by TDI's standards shall be promptly referred by TWCC to TDI, which shall respond to such complaints pursuant to its own rules and procedures.
2. Any complaints received by TDI which constitute requests for an appeal of adverse determinations by UR agents performing workers' compensation utilization reviews or insurers of health care services or treatments for a compensably injured employee shall be promptly referred to TWCC which shall respond to such complaints pursuant to its own procedures.
3. All complaints, other than those described in subsection D.1. and 2. above, shall be handled by TDI unless both agencies agree that a specific complaint or category of complaints should be handled by TWCC.
4. As part of the statutorily required complaint and information reporting system [Insurance Code article 21.58A, Sec. 4(m)], TDI shall require, contingent upon adoption of rules, UR agents to separately report information on complaints specific to workers' compensation benefits. TDI shall provide TWCC with such reports on an annual basis unless a major problem area is identified by TDI in which case the reports in that area will be sent as expeditiously as practical. TDI shall provide to TWCC on a quarterly basis copies or a summary of complaints received by TDI relating to workers' compensation utilization review.
E. Audit/Enforcement/Compliance Issues.
1. If, in the course of its routine audits and regulation of insurance carriers and associated entities, TWCC encounters any evidence or other indication that a UR agent performing workers' compensation utilization reviews is not certified or is otherwise out of c c compliance with the requirements of Insurance Code art article 21.58A, TDI rules, or TWCC rules and procedures, TWCC shall promptly convey this information to TDI.
2. TDI is authorized to audit UR agents performing workers' compensation utilization reviews for compliance with certification-related requirements and to take appropriate enforcement actions with regard to violations. TDI shall promptly notify TWCC of such enforcement actions.
F. Appeals Process.
1. Appeals from an adverse determination by a UR agent performing workers' compensation utilization reviews shall be governed by the workers' compensation act and applicable rules and procedures of TWCC; the appeals process contained in Insurance Code article 21.58A and associated TDI rules (including provisions concerning appeal to an independent review organization) shall not apply.
2. TDI shall require, contingent upon adoption of rules, UR agents performing workers' compensation utilization reviews, as part of the statutory reporting requirements, to separately report information on adverse determinations specific to workers' compensation claims, and TDI shall provide TWCC with such reports on a quarterly basis.
G. Confidentiality.
1. TDI and TWCC shall share information considered confidential under applicable law to the maximum extent allowed under applicable law for regulatory purposes as generally summarized in this MOU. In sharing confidential information between agencies as contemplated by this MOU, TDI and TWCC agree to take all necessary steps to ensure the confidentiality of individual medical records and other information made confidential by Insurance Code article 21.58A, the workers' compensation act, and other applicable law.
2. TDI and TWCC agree that each shall be responsible for compliance with the Texas Open Records Act, Texas Government Code Chapter 552 and other applicable requirements relating to confidential information in its possession. Each agency maintains information considered confidential under laws administered by that agency. Therefore, to the extent permissible by law, each agency will be responsible for replying to all Open Records requests for information regularly kept by that agency. Each agency agrees to promptly notify the other agency of the receipt of an Open Records Act request relating to records normally kept by the other agency.
H. UR Rules for Workers' Compensation cases.
1. TDI will propose and adopt rules which specifically implement the changes made by the 75th Legislature for UR agents performing workers' compensation utilization reviews. To the extent possible, those rules will reflect the understandings as specified in this MOU.
2. If the TDI rules and/or rule amendments relating to UR agents performing workers' compensation utilization reviews are adopted after the TDI rule amendments which generally apply to all UR agents, TDI will take action to inform UR agents and insurance carriers performing workers' compensation utilization reviews of which provisions of such general rule amendments apply to them.
3. Each agency may utilize appropriate advisory groups.
I. Publication of the MOU.
TDI will publish this MOU in the Texas Register after it is fully executed.
J. Points of Contact.
For purpose of compliance with the procedures contained in this MOU, including reporting and specific questions concerning interpretation or implementation, the initial points of contact for each agency shall be as follows:
Director, Medical Review Division, MS-40
Texas Workers' Compensation Commission
4000 South IH-35
Austin, Texas 78704-7491
Deputy Commissioner, HMO/URA Group
Texas Department of Insurance
333 Guadalupe (Mail Code 108-6A)
Austin, Texas 78714-9104
IV. EXECUTION.
This MOU is effective upon execution by both parties. By signing this agreement, the signatories acknowledge that they are acting under proper authority.
___________________________ ____________________________
Date
Date
___________________________ ____________________________
Elton Bomer Robert M. Marquette
Commissioner Acting Executive Director
Texas Department of Insurance; Texas Workers' Compensation Commission