§§19.2001, 19.2003 - 19.2006, 19.2010, 19.2012, 19.2015, 19.2017, 19.2019 and 19.2020
The Texas Department of Insurance proposes amendments to §§19.2001, 192003 - 19.2006, 19.2010, 19.2012, 19.2015,19.2017, 19.2019, and 19.2020 concerning utilization review for medical benefits provided pursuant to workers´ compensation insurance coverage. The amendments are necessary to implement changes enacted by the 77th Texas Legislature in House Bill (HB) 2600, which relates in part to utilization review in the provision of workers compensation benefits. HB 2600 amends the workers compensation statute (Title 5, Labor Code). The amendments are necessary to conform to rules adopted by the Texas Workers´ Compensation Commission (TWCC) under Title 5, Labor Code and Texas Insurance Code Article 21.58A, and to other statutory changes that have been enacted since the original adoption of these rules. Pursuant to Texas Insurance Code Article 21.58A §14(c), the Commissioner of Insurance shall regulate persons who perform utilization review of medical benefits provided under the workers´ compensation statute (Title 5, Labor Code). The proposed amendment to §19.2001 removes as unnecessary references to legislation that has amended Insurance Code Article 21.58A. The proposed amendment to §19.2003 makes the definition of utilization review consistent with HB 2600, which added the concept of concurrent review to preauthorization and subjected requests for spinal surgery to preauthorization. It also revises the definition of preauthorization to make it consistent with TWCC´s definition. The proposed amendment to §19.2005 adds the requirement that a utilization review plan must include written procedures for ensuring that doctors who perform utilization review for the utilization review agent are on TWCC´s list of approved doctors. Similarly, proposed amendments to §§19.2006(a) and 19.2020(f) include this requirement for doctors who perform utilization review and for doctors performing utilization review for specialty utilization review agents. The proposed amendment to §19.2006(d) provides that a utilization review agent may use doctors licensed in another state to perform reviews, but that the reviews must be performed under the direction of a doctor licensed in Texas and must comply with TWCC regulatory requirements. The proposed amendment to §19.2010 adds the requirement that a utilization review agent´s notification of an adverse determination must include a plain-language notification informing the employee of the right to timely request reconsideration pursuant to TWCC rules. Proposed amendments to §19.2017 update references to the Insurance Code regarding administrative violations. In addition, proposed amendments to §§19.2003(5), 19.2004(2), 19.2012, 19.2015(2), 19.2019(a), and 19.2020(i) revise references to TWCC rules to reflect current titles. The proposal also updates references in this subchapter to names of various divisions and mail codes, as appropriate.
Kim Stokes, Senior Associate Commissioner, Life, Health and Licensing Program, has determined that for each year of the first five years the proposed sections will be in effect, there will be no fiscal impact to state and local governments as a result of the enforcement or administration of the rule. There will be no measurable effect on local employment or the local economy as a result of the proposal.
Ms. Stokes has determined that for each year of the first five years the sections are in effect, the public benefits anticipated as a result of the proposed sections will be more efficient regulation of utilization review of workers´ compensation medical benefits through consistent application of statutory and regulatory requirements by the state agency (TWCC) that regulates the benefits process and the department, which certifies utilization review agents. Any costs of compliance with the proposed sections are the result either of the legislative enactment of HB 2600 which, pursuant to the Texas Insurance Code, prevails over any inconsistent provisions of Article 21.58A, or of rules previously adopted by TWCC pursuant to HB 2600. Accordingly, the proposed amendments will not have an impact on small and micro businesses. Thus, it is neither legal nor feasible to waive or modify the requirements of this rule for small or micro businesses because to do so would create a conflict between the department´s rules and the workers´ compensation statute and rules.
To be considered, written comments on the proposal must be submitted no later than 5:00 p.m. on January 20, 2003 to Gene C. Jarmon, General Counsel and Chief Clerk, Mail Code 113-2A, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. An additional copy of the comment must be simultaneously submitted to Bill Bingham, Deputy for Regulatory Matters, Life, Health and Licensing Program, Mail Code 107-2A, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. Any requests for a public hearing should be submitted separately to the Office of Chief Clerk.
The amendments are proposed under Insurance Code Article 21.58A and Section 36.001. Article 21.58A §13 gives the commissioner authority to adopt rules and regulations to implement the provisions of that article. Section 36.001 provides that the commissioner may adopt rules for the conduct and execution of the powers and duties of the department only as authorized by statute.
The following article is affected by this proposal: Insurance Code Article 21.58A
§19.2001. General Provisions.
(a) Statutory basis. This subchapter implements the provisions of the Insurance Code Article 21.58A
[, which was amended by H.B. 3197 in 1997, 75th Legislature, Chapter 903 which was effective September 1, 1997, but applies only to utilization reviews for medical benefits provided under workers' compensation insurance coverage conducted on or after January 1, 1998].
(b) (c) (No change.)
§19.2003. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings unless the context clearly indicates otherwise.
(1) (4) (No change.)
(5) Appeal process--The processes outlined in the Texas Workers' Compensation Act, including but not limited to Texas Labor Code §413.031
,[
and] Chapter 134, Subchapter G of this title (relating to
Procedure for Requesting Preauthorization of Specific Treatments and Services[
Treatments and Services Requiring Preauthorization]),
and Chapter 133, Subchapter D of this title (relating to Dispute and Audit of Bills by Insurance
Company [
Carriers]).
(6) (26) (No change.)
(27) Preauthorization--The process of [
a doctor, other health care
provider or health care facility] requesting approval to provide a specific treatment or service prior to rendering the treatment or service as
defined and delineated in Chapter 134, Subchapter G of this title [
(relating to Treatments and
Services Requiring Preauthorization].
(28) (32) (No change.)
(33) Utilization review--A system for preauthorization
and concurrent review [
alone], or both preauthorization and retrospective review
or both concurrent and retrospective review, to determine if health care proposed to be provided, being provided, or which has been provided to an injured employee is medically reasonable and necessary. Utilization review shall not include [
the spinal surgery second opinion process as delineated in Chapter 133, subchapter C of this title (relating to Second Opinions for Spinal Surgery), or] elective requests for clarification of coverage or prepayment guarantee.
(34) (37) (No change.)
(38) Concurrent review--A review of on-going health care for an extension of treatment beyond previously approved health care in accordance with §134.600 of this title (relating to Preauthorization, Concurrent Review, and Voluntary Certification of Health Care ).
§19.2004. Certification of Utilization Review Agents.
(a) An application for certification of a utilization review agent must be filed with the Texas Department of Insurance at the following address:
HMO Compliance/URA/IRO Section, Mail Code 103-6A, Texas Department of Insurance, [
Mail Code 108-6A,] P. O. Box 149104, Austin, TX 78714-9104.
(b) The application must be submitted on a form which can be obtained from the
HMO Compliance/URA/IRO [
Utilization Review] Section, Mail Code
103-6A [
108-6A], Texas Department of Insurance, [
333 Guadalupe,] P. O. Box 149104, Austin, TX 78714-9104.
(c) The attachments to the application form require the following information:
(1) (No change.)
(2) copies of procedures established for informing appropriate parties of the process for appeal of an adverse determination to TWCC. These procedures must comply with the provisions of Chapter 133, Subchapter D of this title (relating to Dispute and Audit of Bills by Insurance
Company [
Carriers]);
(3) - (12) (No change.)
(d) (j) (No change.)
§19.2005. General Standards of Utilization Review. The utilization review plan shall be reviewed by a physician and conducted in accordance with standards developed with input from appropriate health care providers, including doctors engaged in an active practice that are both primary and specialty doctors, and approved by a physician. The utilization review plan shall include the following components:
(1) a description of the elements of review which the utilization review agent provides, including[
but not limited to]:
(A)
prospective and concurrent review [
preauthorization] in accordance with Chapter 134, Subchapter G of this title (relating to
Procedure for Requesting Preauthorization of Specific Treatments and Services[
Treatments and Services Requiring Preauthorization]);
(B) the elements of review in the TWCC guidelines contained in Chapter 134
, Subchapter G of this title [
(relating to Guidelines for Medical Services, Charges, and Payments)];
(C) The elements of review contained in Chapter 133, Subchapter D of this title (relating to dispute and Audit of Bills by Insurance
Company [
Carriers]).
(2) written procedures for:
(A) (E) (No change.
(F) handling of oral or written complaints by injured employees, their representatives or health care providers as addressed in §19.2016(a) of this title (relating to Complaints and
Reporting Requirements [
Information]);
(G) determining if doctors or other health care providers utilized by the utilization review agent are licensed, qualified and appropriately trained , including written procedures for ensuring that doctors that perform utilization review for the utilization review agent are on TWCC's list of approved doctors in accordance with Chapter 180, Subchapter B of this title (relating to Medical Benefit Regulation);
(H) (No change.)
(3) (4) (No change.)
§19.2006. Personnel.
(a) Personnel employed by or under contract with the utilization review agent to perform utilization review shall be appropriately trained and qualified and, if applicable, currently licensed. Doctors that perform utilization review for the utilization review agent must be on TWCC's list of approved doctors in accordance with Chapter 180, Subchapter B of this title (relating to Medical Benefit Regulation). Personnel who obtain information regarding an injured employee's specific medical condition, diagnosis and treatment options or protocols directly from the doctor or other health care provider, either orally or in writing, and who are not doctors shall be nurses, physicians assistants, or health care providers qualified to provide the service requested by the provider. This provision shall not be interpreted to require such qualifications for personnel who perform clerical or administrative tasks.
(b) (c) (No change.)
(d)
A utilization review agent that uses doctors to perform reviews of health care services provided under a workers´ compensation policy may use doctors licensed by another state to perform the reviews, but the reviews must be performed under the direction of a doctor licensed to practice in this state. [
Utilization review conducted by a utilization review agent shall be under the direction of a physician currently licensed to practice medicine by a state licensing agency in the United States.] Such
doctor [
physician] may be employed by or under contract to the utilization review agent.
(e) (No change.)
§19.2010. Notice of Determinations Made by Utilization Review Agents, Excluding Retrospective Review.
(a) (No change.)
(b) The notification and time frames for notification required by this section must be made in accordance with TWCC rules contained in Chapter 134, Subchapter G of this title (relating to
Procedure for Requesting Preauthorization of Specific Treatments and Services [
Treatments and Services Requiring
Preauthorization]).
(c) Notification of adverse determination by the utilization review agent must include:
(1) the principal reasons for the adverse determination;
(2) the clinical basis for the adverse determination;
(3) a description or the source of the screening criteria that were utilized as guidelines in making the determination; [
and]
(4) a description of the procedure for the complaint process to the Department and appeal process to TWCC
;[
.]
and
(5) plain language notifying the employee of the right to timely request reconsideration of the health care denied in accordance with Chapter 134, Subchapter G of this title.
§19.2012. Appeal of Adverse Determination of Utilization Review Agents.
Appeals from an adverse determination by a utilization review agent shall be governed by the Texas Workers' Compensation Act and the applicable rules and procedures of the TWCC including but not limited to Chapter 134, Subchapter G of this title (relating to
Procedure for Requesting Preauthorization of Specific Treatments and Services [
Treatments and Services Requiring Preauthorization]) and Chapter 133, Subchapter D of this title (relating to Dispute and Audit of Bills by Insurance
Company [
Carriers]).
§19.2015. Retrospective Review of Medical Necessity.
(a) When a retrospective review is performed:
(1) (No change.)
(2) such retrospective review shall be under the direction of a physician and performed in accordance with Chapter 133, Subchapter D of this title (relating to Dispute and Audit of Bills by Insurance
Company [
Carriers]).
(b) When retrospective review results in an adverse determination or denial of payment, the utilization review agent shall notify the health care providers of the opportunity to appeal the determination through the appeal process as outlined in Chapter 133, Subchapter D of this title
[ (relating to Dispute and Audit of Bills by Insurance Carriers)].
§19.2017. Administrative Violations.
(a) If the commissioner, through the commissioner's designated representative, believes that any person or entity conducting utilization review pursuant to this article is in violation of the Act or applicable regulations, the commissioner's designated representative shall notify the utilization review agent or insurance carrier of the alleged violation and may compel the production of any and all documents or other information as necessary to determine whether or not such violation has taken place.
(b) The commissioner's designated representative may initiate the proceedings under this section.
(c) Proceedings under this section are a contested case for the purpose of Government Code, Chapter 2001.
(d) If the commissioner determines that the utilization review agent, insurance carrier, or other person or entity conducting utilization review pursuant to this subchapter has violated or is violating any provision of
the [
this] Act,
the Insurance Code, or this subchapter, the commissioner may[
:]
[
(1)] impose sanctions under the Insurance Code,
Chapters 82, 83 and 84. [
Article 1.10, §7;]
[(2) issue a cease and desist order under the Insurance Code, Article 1.10A; or]
[
(3) assess administrative penalties under the Insurance Code, Article 1.10E].
(e) [
If the utilization review agent has violated or is violating any provisions of the Insurance Code other than the Act, or applicable rules of the department, sanctions may be imposed under the Insurance Code, Article 1.10 or 1.10A.]
[
(f)] The commission of fraudulent or deceptive acts or omissions in obtaining, attempting to obtain, or use of certification as a utilization review agent shall be a violation of the Act.
§19.2019. Responsibility of Insurance Companies Performing Utilization Review under the Insurance Code, Article 21.58A, §14(h).
(a) An insurance company licensed by the department and performing utilization review under the Insurance Code Article 21.58A, §14(h) will be subject to §19.2001 of this title (relating to General Provisions), §19.2002 of this title (relating to Limitations on Applicability), §19.2003 of this title (relating to Definitions), §19.2004(c)(1)-(10) and (d) of this title (relating to Certification of Utilization Review Agents), §19.2005 of this title (relating to General Standards of Utilization Review), §19.2006 of this title (relating to Personnel), §19.2007 of this title (relating to Prohibitions of Certain Activities of Utilization Review Agents), §19.2008 of this title (relating to Utilization Review Agent Contact with and Receipt of Information from Health Care Providers), §19.2009 of this title (relating to On-Site Review by the Utilization Review Agent), §19.2010 of this title (relating to Notice of Determinations Made by Utilization Review Agents
, Excluding Retrospective Review), §19.2011 of this title (relating to Requirements Prior to Adverse Determination), §19.2012 of this title (relating to Appeal of Adverse Determination of Utilization Review Agents), §19.2013 of this title (relating to Utilization Review Agent's Telephone Access), §19.2014 of this title (relating to Confidentiality), §19.2015 of this title (relating to Retrospective Review of Medical Necessity), §19.2016 of this title (relating to Complaint and
Reporting Requirements [
Information]), §19.2017 of this title (relating to Administrative Violations), and §19.2020 of this title (relating to Specialty Utilization Review Agent) with respect to their operations under the provisions of the Act, §14(h).
(b) (c) (No change.)
§19.2020. Specialty Utilization Review Agent.
(a) (e) (No change.)
(f) Personnel employed by or under contract with the specialty utilization review agent to perform utilization review shall be appropriately trained and qualified and, if applicable, currently licensed. Doctors that perform utilization review for the specialty utilization review agent must be on TWCC's list of approved doctors in accordance with Chapter 180, Subchapter B of this title (relating to Medical Benefit Regulation). Personnel who obtain information regarding an injured employee's specific medical condition, diagnosis, and treatment options or protocols directly from the doctor or health care provider, either orally or in writing, and who are not doctors, shall be nurses, physician's assistants, or other health care providers of the same specialty as the utilization review agent and who are licensed or otherwise authorized to provide the specialty health care by a state licensing agency in the United States. This provision shall not be interpreted to require such qualifications for personnel who perform clerical or administrative tasks.
(g) (h) (No change.)
(i) Appeals from an adverse determination by a specialty utilization review agent shall be governed by the Texas Workers' Compensation Act and the applicable rules and procedures of the TWCC including but not limited to Chapter 134, Subchapter G of this title (relating to
Procedure for Requesting Pre-Authorization of Specific Treatments and Services [
Treatments and Services Requiring Preauthorization]) and Chapter 133, Subchapter D of this title (relating to Dispute and Audit of Bills by Insurance
Company [
Carriers]).