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Subchapter U. Utilization Reviews for Health Care Provided Under Workers´ Compensation Insurance Coverage

§§19.2001, 19.2003 - 19.2006, 19.2010, 19.2012,

19.2015, 19.2017, 19.2019 and 19.2020

The Commissioner of Insurance adopts amendments to §§19.2001, 19.2003-19.2006, 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. Sections 19.2003-.2006, 19.2010, 19.2012, 19.2015, and 19.2020 are adopted with changes to the proposed text as published in the December 20, 2002, issue of the Texas Register (27 TexReg 11895). Sections 19.2001, 19.2017, and 19.2019 are adopted without changes and will not be republished.

2. REASONED JUSTIFICATION. The amendments are necessary to implement changes enacted by the 77 th Texas Legislature in House Bill (HB) 2600, which among other things amended the workers´ compensation statute (Title 5, Labor ) with regard to utilization review in the provision of workers´ compensation benefits. The amendments are necessary to conform these sections to HB 2600 and to rules adopted by the Texas Workers´ Compensation Commission (TWCC). The amendments are adopted to regulate persons who perform utilization review of medical benefits provided under the workers´ compensation statute.

Changes have been made to the proposed sections as follows. In response to comments, language was added to §§19.2005, 19.2006 and 19.2020 to clarify that out of state doctors who perform utilization review or specialty utilization review must either be on TWCC´s approved doctors list (ADL), or be licensed in their own state and perform utilization review under the direction of a Texas-licensed doctor who is on the ADL. HB 2600 changed the workers´ compensation statute to provide that doctors and other health care providers, including those performing utilization review, must be on the ADL. However, it also provided that a utilization review agent may use doctors licensed in another state so long as reviews are performed under the direction of a doctor licensed in Texas. While the rule as proposed contained all these provisions, commenters pointed out that parts of the rule, if read in isolation, could be understood incorrectly. Accordingly, language was added to present a clearer and more complete picture of the requirements of HB 2600 regarding out of state doctors. In addition, changes were made to the titles of TWCC rules referenced in §§19.2003-19.2006, 19.2010, 19.2015, and 19.2020 to reflect the accurate and/or most recent citations, and to §§19.2004 and 19.2020 to remove redundant and unnecessary language. Finally, minor grammatical changes were made to the sections to correct punctuation.

3. HOW THE SECTIONS WILL FUNCTION. The adopted amendment to §19.2001 removes as unnecessary references to legislation that has amended Insurance Code Article 21.58A. The adopted 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 adopted 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 the ADL. Similarly, adopted 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 adopted 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 adopted 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. Adopted amendments to §19.2017 update references to the Insurance Code regarding administrative violations. In addition, adopted 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 adoption also updates references in this subchapter to names of various divisions and mail codes, as appropriate.

§19.2003: One commenter recommends amending the definition of "screening criteria" to include "if adopted, nationally recognized, scientifically valid, and outcome-based" treatment guidelines, in the event the Texas Workers´ Compensation Commission (TWCC) elects to adopt treatment guidelines to replace those repealed effective January 1, 2001.

Agency Response: Because TWCC repealed former treatment guidelines in accordance with HB 2600 and has not adopted new treatment guidelines, the department believes it would be premature to make the requested change at this time. The commenter is correct that any such adopted guidelines would come within the definition of "screening criteria" in this rule; however, the department believes that the phrase "treatment guidelines" in the current rule would encompass any guidelines TWCC may adopt in the future.

Comment:One commenter suggests adding a definition of "voluntary certification" because TWCC rules include the processes for requesting utilization review under the definitions of preauthorization, concurrent review, and voluntary certification. Because the department´s rule includes new definitions for preauthorization and concurrent review, the commenter says, it is appropriate to include "voluntary certification" for consistency between the two rules.

Agency Response: The department disagrees. HB 2600 says TWCC may not prohibit an insurance carrier and health care provider from voluntarily discussing health care treatment and treatment plans, either prospectively or concurrently, and may not prohibit a carrier from certifying or agreeing to pay for health care consistent with those agreements. TWCC´s implementing rules provide that an insurance carrier is liable for all reasonable and necessary medical costs relating to the health care required to treat a compensable injury when voluntary certification was requested and payment agreed upon prior to providing the health care for any care for which preauthorization or concurrent review is not required. The rules further provide that denials of voluntary certification are not subject to prospective necessity dispute resolution, although health care for which voluntary certification was denied is subject to retrospective necessity dispute resolution. Thus, voluntary certification is not utilization review within the meaning of Title 5 of the Labor Code, Art. 21.58A of the Insurance Code, and this rule. In addition, it would not be useful to define a term for which there is no reference in the rule.

§§19.2005, 19.2006 and 19.2020: Two commenters recommend changing these sections to clarify that HB 2600 specifically authorizes doctors licensed out of state to perform utilization review so long as they perform under the direction of a Texas-licensed doctor. The commenters expressed concern that, as proposed, these sections could lead to the erroneous conclusion that out of state doctors performing utilization review must also be on TWCC´s approved doctor list (ADL).

Agency Response: The department agrees that the ADL requirements in other parts of the rule, if read in isolation, could appear to pose a conflict with the out of state doctor provisions. Therefore, the department has added language to these sections to ensure consistency and clarity consistent with the provisions of HB 2600, stating that the utilization review plan must ensure that doctors performing utilization review are either on the ADL or are licensed in another state and will perform utilization review under the direction of a doctor licensed in Texas who is on the ADL. To further ensure consistency with HB 2600, the added language makes reference to TWCC´s rules concerning out of state doctors.

§19.2020: One commenter says that there is no definition within Chapter 19, Subchapter U, to clarify what type of provider qualifies as a specialty utilization review agent and what sections of the rule such agents are subject to. The commenter recommends that the rule clarify the difference between "specialty utilization review" and "utilization review," possibly by adding definitions for the former and for specialty review agent.

Agency Response: The department disagrees, as it believes §19.2020 and the statute are sufficiently self-explanatory concerning requirements of the rule and statute to which specialty utilization review agents are subject.

For with changes: Insurance Council of Texas, American Insurance Association, Texas Mutual Insurance Company.

The amendments are adopted under the Insurance Code, Art. 21.58A and §36.001. Art. 21.58A, Health Care Utilization Review Agents, gives the commissioner the authority to adopt rules 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.

§19.2001. General Provisions.

(a) Statutory basis. This subchapter implements the provisions of the Insurance Code, Article 21.58A.

(b) Severability. Where any terms or sections of this subchapter are determined by a court of competent jurisdiction to be inconsistent with any statutes of this state, or to be unconstitutional, the remaining terms and provisions of this subchapter shall remain in effect.

(c) Purpose. The purpose of these rules is to:

(1) promote the delivery of quality health care in a cost-effective manner, including protection of injured employee safety;

(2) assure that utilization review agents adhere to reasonable standards for conducting utilization reviews;

(3) foster greater coordination and cooperation between health care providers and utilization review agents;

(4) improve communications and knowledge of medical benefits among all parties; and

(5) ensure that utilization review agents maintain the confidentiality of medical records in accordance with applicable law.

§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) Act--Insurance Code Article 21.58A, entitled "Health Care Utilization Review Agents."

(2) Active practice---A minimum of 20 hours per week in the examination, diagnosis and/or treatment of patients.

(3) Administrative Procedure Act--Government Code Chapter 2001.

(4) Adverse determination--A determination by a utilization review agent that the health care furnished or proposed to be furnished to an injured employee is not reasonable and necessary.

(5) Appeal process--The processes outlined in the Texas Workers' Compensation Act, including but not limited to Texas Labor Code §413.031, Chapter 134, Subchapter G of this title (relating Prospective and Concurrent Review of Health Care), and Chapter 133, Subchapter D of this title (relating to Dispute and Audit of Bills by Insurance Carriers).

(6) Certificate--A certificate of registration granted by the commissioner to a utilization review agent.

(7) Commissioner--The Commissioner of Insurance.

(8) Compensable injury--An injury that arises out of and in the course and scope of employment for which compensation is payable under the Texas Workers' Compensation Act.

(9) Complaint--An oral or written expression of dissatisfaction with a utilization review agent concerning the utilization review agent's process. A complaint is not an expression of dissatisfaction with a specific adverse determination, a misunderstanding or misinformation that is resolved promptly by supplying the appropriate information or clearing up the misunderstanding to the satisfaction of the complaining party.

(10) Department--Texas Department of Insurance.

(11) Dentist--A licensed doctor of dentistry, holding either a D.D.S. or a D.M.D. degree.

(12) Doctor--A doctor of medicine, osteopathic medicine, optometry, dentistry, podiatry, or chiropractic who is licensed and authorized to practice.

(13) Health care--Includes all reasonable and necessary medical aid, medical examinations, medical treatments, medical diagnoses, medical evaluations, and medical services. The term does not include vocational rehabilitation. The term includes:

(A) medical, surgical, chiropractic, podiatric, optometric, dental, nursing, and physical therapy services provided by or at the direction of a doctor;

(B) physical rehabilitation services performed by a licensed occupational therapist provided by or at the direction of a doctor;

(C) psychological services prescribed by a doctor;

(D) the services of a hospital or other health care facility;

(E) a prescription drug, medicine, or other remedy; and

(F) a medical or surgical supply, appliance, brace, artificial member, or prosthesis, including training in the use of the appliance, brace, member, or prosthesis.

(14) Health care facility--A hospital, emergency clinic, outpatient clinic, or other facility providing health care.

(15) Health care provider--Any person, corporation, facility, or institution licensed by a state to provide or otherwise lawfully providing health care that is eligible for independent reimbursement for those services.

(16) Injured employee--An employee with a compensable injury under the Texas Workers' Compensation Act.

(17) Inquiry--A request for information or assistance from a utilization review agent.

(18) Insurance carrier---

(A) an insurance company;

(B) a certified self-insurer for workers' compensation insurance; or

(C) a governmental entity that self-insures, either individually or collectively.

(19) Insurance company--A person authorized and admitted by the Texas Department of Insurance to do insurance business in this state under a certificate of authority that includes authorization to write workers' compensation insurance.

(20) Life-threatening--A disease or condition resulting from a compensable injury, for which the likelihood of death is probable unless the course of the disease or condition is interrupted.

(21) Medical benefit--Payment for health care reasonably required by the nature of a compensable injury and intended to:

(A) cure or relieve the effects naturally resulting from the compensable injury, including reasonable expenses incurred by the injured employee for necessary treatment to cure and relieve the injured employee from the effects of an occupational disease before and after the injured employee knew or should have known the nature of the disability and its relationship to the employment;

(B) promote recovery; or

(C) enhance the ability of the injured employee to return to or retain employment.

(22) Medical records--The entire history of diagnosis and treatment for a compensable injury, including but not limited to medical, dental, and other health care records from all disciplines rendering care to an injured employee.

(23) Nurse--A professional or registered nurse, a licensed vocational nurse, or a licensed practical nurse.

(24) Open records law--Government Code Chapter 552.

(25) Person--An individual, a corporation, a partnership, an association, a joint stock company, a trust, an unincorporated organization, any similar entity or any combination of the foregoing acting in concert.

(26) Physician--A licensed doctor of medicine or a doctor of osteopathy.

(27) Preauthorization--The process 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 Prospective and Concurrent Review of Health Care).

(28) Retrospective review--The process of reviewing health care which has been provided to injured employees under the Texas Workers' Compensation Act to determine if the health care was medically reasonable and necessary.

(29) Screening criteria--The written policies, decision rules, medical protocols, TWCC fee and treatment guidelines, and TWCC rules and advisories used by the utilization review agent as part of the utilization review process (e.g., appropriateness evaluation protocol (AEP), and intensity of service, severity of illness, discharge, and appropriateness screens (ISD-A)). The TWCC Treatment Guidelines are tools that identify recommended treatment parameters and typical courses of intervention, whose purpose is to clarify those services that are reasonable and medically necessary. The guidelines are not to be used as fixed treatment protocols by either the health care provider or insurance carrier and shall not be viewed as prescriptive or the sole basis for approval or denial of proposed services. There may be injured employees who will require more or less treatment than is recommended in the guidelines. Treatment falling outside the parameters of the guidelines will be subject to more careful scrutiny and may require additional documentation of special circumstances to justify the need for treatment. Each guideline includes specific ground rules which establish the use of the guideline.

(30) Texas Workers' Compensation Act--Texas Labor Code Title 5.

(31) Treating doctor--The doctor primarily responsible for treating the injured employee's compensable injury as defined in the Texas Labor Code, §401.011(42).

(32) TWCC--Texas Workers' Compensation Commission.

(33) Utilization review--A system for preauthorization and concurrent review, 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 elective requests for clarification of coverage or prepayment guarantee.

(34) Utilization review agent--An insurance carrier, the carriers' agent(s), and/or any entity contracted or subcontracted to provide utilization review.

(35) Utilization review plan--The screening criteria and utilization review procedures of a utilization review agent.

(36) Working day--A weekday, excluding a legal holiday.

(37) Workers' compensation insurance coverage:

(A) an approved insurance policy, pursuant to Article 5.56 of the Insurance Code, to secure the payment of compensation under the Texas Workers' Compensation Act;

(B) coverage to secure the payment of compensation through self-insurance as provided by the Texas Workers' Compensation Act; or

(C) coverage provided by a governmental entity to secure the payment of compensation under the Texas Workers' Compensation Act.

(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, 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 Section, Mail Code 103-6A, Texas Department of Insurance, P. O. Box 149104, Austin, TX 78714-9104.

(c) The attachments to the application form require the following information:

(1) a summary description of the utilization review plan which must include the matters listed in subparagraphs (A) and (B) of this paragraph. The utilization review plan must meet the requirements of §19.2005 of this title (relating to General Standards of Utilization Review);

(A) an adequate summary description of screening criteria and review procedures to be used to determine health care is medically reasonable and necessary; and

(B) a certification, signed by an authorized representative of the company, that screening criteria and review procedures to be applied in review determination are established with input from appropriate health care providers and approved by physicians;

(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 Carriers);

(3) copies of procedures established for handling oral or written complaints by injured employees, their representatives or health care providers. These procedures must comply with §19.2016 of this title (relating to Complaints and Information);

(4) copies of policies and procedures which ensure that all applicable state and federal laws to protect the confidentiality of medical records are followed. These procedures must comply with §19.2014 of this title (relating to Confidentiality);

(5) a certification signed by an authorized representative of the company that the utilization review agent will comply with the provisions of the Act, the Texas Workers' Compensation Act and TWCC Rules;

(6) a description of the categories of persons and names of the personnel employed or under contract to perform utilization review;

(7) a description of the hours of operation within the State of Texas and how the utilization review agent may be contacted during weekends and holidays. This description must be in compliance with §19.2013 of this title (relating to Utilization Review Agent's Telephone Access);

(8) representative samples of all materials provided by the utilization review agent/applicant to inform its clients, injured employees, their representatives or providers of the requirements of the utilization review plan. Samples shall include language for notification of an adverse determination made in a utilization review;

(9) a description of the basis by which the utilization review agent compensates its employees or agents to ensure compliance with paragraph (10) of this subsection;

(10) a certification signed by an authorized representative of the company that the utilization review agent shall not permit or provide compensation or anything of value to its employees or agents, condition employment or its employee or agent evaluations, or set its employee or agent performance standards based on: the amount or volume of adverse determinations; reductions or limitations on lengths of stay, duration of treatment, medical benefits, services, or charges; or on the number or frequency of telephone calls or other contacts with health care providers or injured employees, which are inconsistent with the provisions of this subchapter;

(11) the organizational information, documents and all amendments, including:

(A) the bylaws, rules, or any similar document regulating the conduct of the internal affairs of the applicant with a notarized certification bearing the original signature of an officer or authorized representative of the applicant that they are true, accurate, and complete copies of the originals;

(B) for an applicant that is publicly held, the name of each stockholder or owner of more than five percent of any stock or options;

(C) a chart showing the internal organizational structure of the applicant's management and administrative staff; and

(D) a chart showing contractual arrangements of the utilization review agent related to utilization review;

(12) the name and biographical information for each director, officer and executive of the applicant.

(d) The utilization review agent shall report any material changes in the information in the application or renewal form referred to in this section, not later than the 30th day after the date on which the change takes effect. Material changes include but are not limited to new personnel hired as directors, officers, or executives, changes in the organizational structure, changes in contractual relationships, changes in the utilization review plan and changes in methods of compensation to utilization review agents or their employees.

(e) The application process is described in paragraphs (1) - (4) of this subsection.

(1) The department shall have 60 days after receipt of an application to process the application and to certify or deny it. The department shall give the applicant written notice of any omissions or deficiencies noted as a result of the review conducted pursuant to this paragraph.

(2) The applicant must correct the omissions or deficiencies in the application within 30 days of the date of the department's latest notice of such omissions or deficiencies. If the applicant fails to do so, the application file will be closed as an incomplete application. The application fee will not be refundable.

(3) The applicant may waive any of the time limits described in this subsection, except in paragraph (2). The applicant may waive the time limit in paragraph (2) of this subsection only with the consent of the department.

(4) The department shall maintain an application file which shall contain the application, notices of omissions or deficiencies, responses and any written materials generated by any person that was considered by the department in evaluating the application.

(f) An applicant for a certificate of registration as a utilization review agent must provide evidence that the applicant:

(1) has available the services of doctors, nurses, physician's assistants, or other health care providers qualified to provide the service requested by the provider to carry out its utilization review activities in a timely manner;

(2) meets any applicable provisions of this subchapter and regulations relating to the qualifications of the utilization review agents or the performance of utilization review;

(3) has policies and procedures which protect the confidentiality of medical records in accordance with applicable state and federal laws;

(4) makes itself accessible to injured employees, their representatives and health care providers 40 working hours a week during normal business hours in this state in each time zone in which it operates.

(g) A utilization review agent must apply for renewal of the certificate of registration every two years from the date of certification. A renewal form must be used for this purpose. The renewal fee must be submitted with the renewal form. The renewal form can be obtained from the address listed in subsection (b) of this section. The completed renewal form, a summary of the current screening criteria, a statement signed by an authorized representative of the company certifying that all information previously submitted is true and correct and all changes have been previously filed to the application certified by the department, and the renewal fee must be submitted to the department at the address listed in subsection (a) of this section. A utilization review agent may continue to operate under its certificate of registration, if the information and the fee have been filed for renewal and timely received by the department, until the renewal is finally denied or issued by the department. If the required information and fee are not received prior to the deadline for renewal of the certificate of registration, the certificate of registration will automatically expire and the utilization review agent must complete and submit a new application form and a new fee with all required information.

(h) If an application or renewal is initially denied under this section, the applicant or registrant may appeal such denial under the terms of the provisions of Chapter 1, Subchapter A of this title (relating to Rules of Practice and Procedure) and Government Code Chapter 2001. A hearing of such appeal shall be conducted within 45 days of the date the petition for such hearing is filed with the commissioner. A decision by the commissioner shall be rendered within 60 days of the date of the hearing.

(i) A utilization review agent providing utilization review on the effective date of this subchapter must abide by the provisions of this subchapter effective upon its adoption, and must file with the department its original application within 180 days of the effective date of this subchapter. Utilization review agents that have received their certificate of registration prior to the adoption of these rules, and are performing workers' compensation utilization review as defined in §19.2003 of this title (relating to Definitions), must file with the department all changes to their original application as set forth in subsections (c) and (d) of this section within 180 days of the effective date of this subchapter.

(j) A utilization review agent will be required to make a single application and fee payment for one certification to cover all lines of utilization review business.

§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:

(A) prospective and concurrent review in accordance with Chapter 134, Subchapter G of this title (relating to Prospective and Concurrent Review of Health Care);

(B) the elements of review in the TWCC guidelines contained in Chapter 134, Subchapter G of this title (relating to Prospective and Concurrent Review of Health Care);

(C) The elements of review contained in Chapter 133, Subchapter D of this title (relating to Dispute and Audit of Bills by Insurance Carriers).

(2) written procedures for:

(A) identification of individuals with special circumstances who may require flexibility in the application of screening criteria through utilization review decisions. Special circumstances include, but are not limited to, a person who has a disability, an acute condition or life-threatening illness. Disability shall not be construed to mean an injured employee who is off work or receiving income benefits;

(B) notification of the utilization review agent's determinations provided in accordance with Chapter 134, Subchapter G of this title and as addressed in §19.2010(b) of this title (relating to Notice of Determinations Made by Utilization Review Agents, Excluding Retrospective Review);

(C) informing appropriate parties of the process for appeal of an adverse determination to TWCC, as required by §19.2011 and §19.2012 of this title (relating to Requirements Prior to Adverse Determination and Appeal of Adverse Determinations of Utilization Review Agents);

(D) receiving or redirecting a toll-free normal business hour and after-hour calls, either in person or by recording, and assurance that a toll-free number will be maintained 40 hours per week during normal business hours as addressed in §19.2013 of this title (relating to Utilization Review Agent's Telephone Access);

(E) review including:

(i) any form used during the review process;

(ii) time frames that shall be met during the review;

(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);

(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 either on TWCC's list of approved doctors or, if licensed in another state, will perform utilization review under the direction of a doctor licensed in Texas who is on TWCC's list of approved doctors, in accordance with Chapter 180 of this title (relating to Monitoring and Enforcement);

(H) assuring that injured employee-specific information obtained during the process of utilization review, as addressed in §19.2014 of this title (relating to Confidentiality), will be:

(i) kept confidential in accordance with applicable federal and state laws;

(ii) used solely for the purposes of utilization review, quality assurance and case management;

(iii) shared with only those agencies who have authority to receive such information; and

(iv) in the case of summary data, not considered confidential if it does not provide sufficient information to allow identification of individual injured employees;

(I) providing prior written notice to a doctor or health care provider when publishing data, including quality review studies or performance tracking data which identifies a particular doctor, or health care provider;

(3) screening criteria. Each utilization review agent shall utilize written medically acceptable screening criteria as defined in §19.2003 of this title (relating to Definitions) and review procedures which are established and periodically evaluated and updated, at a minimum, upon certification renewal with appropriate involvement from the doctors, including doctors engaged in an active practice, and other health care providers. Utilization review decisions shall be made in accordance with currently accepted medical or health care practices, taking into account special circumstances of each case that may require deviation from the norm stated in the screening criteria. Screening criteria must be objective, clinically valid, compatible with established principles of health care, and flexible enough to allow deviations from the norm when justified on a case-by-case basis. Screening criteria must be used to determine only whether to approve the requested treatment. Denials must be referred to an appropriate doctor or other health care provider to determine whether health care is medically reasonable and necessary. Such written screening criteria and review procedures shall be available for review and inspection to determine appropriateness and compliance as deemed necessary by the commissioner, his or her designated representative, or TWCC and copying as necessary for the commissioner and/or TWCC to carry out the lawful duties under the Insurance Code, and the Texas Labor Code, provided, however, that any information obtained or acquired under the authority of this subchapter and the Act, is confidential and privileged and not subject to the open records law or subpoena except to the extent necessary for the commissioner to enforce this subchapter and the Act, and for TWCC to enforce the Texas Workers' Compensation Act.

(4) delegation of review. Provide circumstances, if any, under which the utilization review agent may delegate the review to qualified personnel in the hospital or health care facility where the health care is to be provided. Such delegation shall not relieve the utilization review agent of full responsibility for compliance with this subchapter, the Act, and the Texas Workers' Compensation Act, including the conduct of those to whom utilization review has been delegated.

§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 of this title (relating to Monitoring and Enforcement), or comply with subsection (d) of this section. 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) A utilization review agent may not permit or provide compensation or any thing of value to its employees or agents, condition employment or its employee or agent evaluations, or set its employee or agent performance standards, based on: the amount or volume of adverse determinations; reductions or limitations on lengths of stay, duration of treatment, medical benefits, services, or charges; or the number or frequency of telephone calls or other contacts with health care providers or injured employees, which are inconsistent with the provisions of this subchapter.

(c) The utilization review agent is required to provide the name, number, type, and minimum qualification or qualifications of the personnel either employed or under contract to perform the utilization review to the commissioner. Utilization review agents shall be required to adopt written procedures used to determine if doctors or other health care providers utilized by the utilization review agent are licensed, qualified, and appropriately trained, and must maintain records on such.

(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 who is on TWCC´s approved doctor list, in accordance with Chapter 180 of this title. Such doctor may be employed by or under contract to the utilization review agent.

(e) Utilization review of dental health care shall be reviewed by a dentist currently licensed by a state licensing agency in the United States prior to issuance of an adverse determination.

§19.2010. Notice of Determinations Made by Utilization Review Agents, Excluding Retrospective Review.

(a) A utilization review agent shall notify the injured employee, their representative and the treating doctor or the treating doctor's designated representative (e.g., referred health care providers or health care facilities) of a determination made in a utilization review.

(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 Prospective and Concurrent Review of Health Care).

(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;

(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 (relating to Prospective and Concurrent Review of Health Care).

§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 Prospective and Concurrent Review of Health Care) and Chapter 133, Subchapter D of this title (relating to Dispute and Audit of Bills by Insurance Carriers).

§19.2015. Retrospective Review of Medical Necessity.

(a) When a retrospective review is performed:

(1) such retrospective review shall be based on written screening criteria as defined in §19.2003 of this title (relating to Definitions) established and periodically updated, at a minimum, upon certification renewal with appropriate involvement from doctors, including doctors engaged in an active practice, and other health care providers; and

(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 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 Act, the Insurance Code, or this subchapter, the commissioner may impose sanctions under the Insurance Code, Chapters 82, 83 and 84.

(e) 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), §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) When an insurance company performs utilization review under the Texas Workers' Compensation Act or TWCC rules for an insurance carrier, an employer, or a utilization review agent other than the insurance company itself, such insurance company shall be required to obtain a certificate under this subchapter and comply with all the provisions of this subchapter.

(c) Insurance companies performing utilization review under §14(h) of the Act must register with the department and submit written documentation demonstrating compliance with all the filing requirements defined in §19.2004(c)(1)-(10) and (d) of this title (relating to Certification of Utilization Review Agents) and the name, address, contact name and phone number of the insurance company.

§19.2020. Specialty Utilization Review Agent.

(a) A utilization review agent that solely performs specialty review under the Insurance Code, Article 21.58A, §14(j) is not subject to the Insurance Code, Article 21.58A, §4(b), (c), (h) or (k) or §6(b)(3) of the Act. A utilization review agent that does not solely perform specialty review, is not subject to the provisions of this section or the Insurance Code, Article 21.58A, §14(j).

(b) A utilization review agent that performs specialty review under the Insurance Code, Article, 21.58A, §14(j) is subject to this subchapter, except §19.2004(c)(1)(B) and (c)(6) of this title (relating to Certification of Utilization Review Agents); the first sentence of §19.2005 of this title (relating to General Standards of Utilization Review); §19.2006(a), (d), (e) of this title (relating to Personnel); §19.2011 of this title (relating to Requirements Prior to Adverse Determination) and §19.2012 of this title (relating to Appeal of Adverse Determination of Utilization Review Agents).

(c) A specialty utilization review agent must submit, by attachment to the application, assurance that the utilization review plan shall be reviewed by a health care provider of the appropriate specialty and conducted in accordance with standards developed with input from a health care provider of the appropriate specialty.

(d) A specialty utilization review agent must submit by attachment to the application a description of the categories of personnel who perform utilization review, such as doctors, nurses, physicians 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, except that this provision does not require those qualifications from personnel who perform solely clerical or administrative tasks.

(e) An applicant for a certificate of registration as a specialty utilization review agent must provide evidence that the applicant has available the services of doctors, 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 to carry out its utilization review activities in a timely manner.

(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 of this title (relating to Monitoring and Enforcement). 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) Utilization review conducted by a specialty utilization review agent shall be conducted under the direction of a health care provider of the same specialty and shall be licensed or otherwise authorized to provide the specialty health care by a state licensing agency in the United States.

(h) Subject to the notice requirements of §19.2012 of this title, in any instance where the specialty utilization review agent questions whether the health care is medically reasonable and necessary, the health care provider who ordered the services shall, prior to the issuance of an adverse determination, be afforded a reasonable opportunity to discuss the plan of treatment for the patient and the clinical basis for the decision of the utilization review agent with a health care provider of the same specialty as the utilization review agent.

(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 Prospective and Concurrent Review of Health Care) and Chapter 133, Subchapter D of this title (relating to Dispute and Audit of Bills by InsuranceCarriers).



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