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SUBCHAPTER W. COVERAGE FOR ACQUIRED BRAIN INJURY 28 TAC §§21.3101 - 21.3105

The Commissioner of Insurance adopts new Subchapter W, §§21.3101 - 21.3105, concerning coverage for acquired brain injury. Sections 21.3101 and 2.3102 are adopted with changes to the proposed text as published in the May 10, 2002 issue of the Texas Register (27 TexReg 3912). Sections 21.3103 ­ 21.3105 are adopted without changes and will not be republished.

These new sections are necessary to implement the provisions of Insurance Code Article 21.53Q, as added by Acts 2001, 77th Texas Legislature, in House Bill (HB) 1676, relating to health benefit plan coverage for certain benefits related to acquired brain injury. The adopted sections prohibit issuers of health benefit plans from excluding certain services necessary as a result of and related to an acquired brain injury. The adopted sections also implement Article 21.53Q, §3 which requires training of personnel responsible for preauthorization of coverage or utilization review under the plan to prevent wrongful denial of coverage required under the article and to avoid confusion of medical benefits with mental health benefits.

Section 21.3101 sets forth general provisions, including severability and applicability. Section 21.3102 sets forth various definitions related to acquired brain injury, and includes definitions for various therapies and services enumerated in Article 21.53Q, §2(a). Section 21.3103 prohibits issuers of health benefit plans from excluding coverage for certain services necessary as a result of and related to an acquired brain injury. The section also sets forth what limits or standard coverage provisions may be placed on coverage for services for acquired brain injury. The section also addresses items including the deductibles, copayments, exclusions for experimental therapies or services, and limitations or exclusions that may be applied to services for coverage for acquired brain injury under a health benefit plan. Section 21.3104 sets forth the training requirements as described in Article 21.53Q, §3. The section addresses development of written preauthorization and utilization review policies and procedures for the purpose of identifying services to be covered for acquired brain injury. The new section also sets forth the minimum training requirements for employees or staff responsible for preauthorization of coverage or utilization review, or for any individual performing these processes, and addresses the means by which the training requirement under the rules may be satisfied, including documentation and verification of such training. Section 21.3105 addresses the provision of CPT codes and is necessary to enable the department to comply with the requirements of Section 2 of HB 1676.

General.

Comment:Several commenters commended the department for its thoroughness and voiced their support for the rule.

Agency Response: The department appreciates the commenters´ support.

Comment: A commenter stated that the rules contain omissions in the consideration of time and costs associated with training. The commenter believes it will take a nurse and a physician some amount of time to be able to meet the rules´ requirements with respect to developing and implementing policies and procedures for training. This commenter also stated concerns about the time and costs associated with staff members being away from patients to attend training. Another commenter disagreed with the labor figures used by the department, stating that the commenter´s health benefit plan finds the costs for its medical directors and nursing staff to be significantly higher than the "mean" presented in the cost note in the proposed rule.

Agency Response: Costs involving training time were not included in the cost note for the proposed sections because any time and costs associated with the training requirements of the rules are the direct result of Article 21.53Q, §3 which specifically requires the commissioner, by rule, to require issuers of health benefit plans to provide adequate training to personnel responsible for preauthorization of coverage or utilization review under the plan to prevent wrongful denial of coverage required under the article and to avoid confusion of medical benefits with mental health benefits. It is reasonable to assume that the statute, which requires training, envisioned that health benefit plan staff would be required to take time away from usual job activities such as patient contacts to attend such training. Therefore, costs associated with loss of time spent by staff in direct patient contact and other tasks to attend training are directly attributable to the statute's training requirement, and are not the direct result of the adoption, enforcement, or administration of the new sections. The department clarifies that the cost estimate presented in the proposal is based upon labor figures from the Texas Workforce Commission Occupational Employment Statistics for 2001 (produced in cooperation with the Bureau of Labor Statistics), with figures adjusted by the department for the year 2002. It is the department's position that these figures are the most reliable and reasonable means of determining labor cost figures for issuers of health benefit plans doing business in Texas. The department recognizes that not all persons required to comply with the new training sections will pay the same rate for various personnel, but does not believe the law requires individual polling of issuers of health benefit plans to determine individual costs associated with compliance with the sections. Rather, the costs cited in the proposed rule are estimates intended to provide a reasonable and supportable representation generally as to the costs required to comply with the sections.

Comment: A commenter addressed cost concerns associated with identification of common procedural terminology (CPT) codes, related to the fact that identification of CPT codes without identification of underlying diagnoses is inaccurate because a CPT code in and of itself does not indicate if a therapy is for an underlying acquired brain injury (ABI). The commenter stated that the health benefit plan will have to consider ICD-9 codes, the diagnostic codes associated with those codes, and HCPCS codes for durable medical equipment.

Agency Response: Any costs associated with a health benefit plan's need to take into consideration identification of underlying diagnoses, or underlying diagnosis codes in conjunction with CPT codes, is attributable to the statute. Article 21.53Q prohibits health benefit plans from excluding certain services for ABI. Even absent the rules, a health benefit plan, in order to comply with Article 21.53Q §2(a) and §3(b), would have to identify underlying diagnoses and diagnosis codes that constitute an ABI in order to avoid improperly denying a service for a diagnosis of ABI in violation of the statute. The rules only require issuers of health benefit plans to compile a list of CPT codes (§21.3104(b)(1)), as opposed to underlying diagnoses codes, since payment by a health benefit plan under a CPT code can vary depending upon the underlying diagnosis. As such, the rules require persons performing preauthorization and utilization review to have knowledge of the CPT codes which should alert persons performing preauthorization and utilization review to look at the underlying diagnoses codes associated with certain CPT codes that, in the context of ABI diagnoses, should be paid when they might otherwise be denied. The department recognizes that some issuers of health benefit plans may wish to automate this process in their computer systems, but clarifies that the rules do not address such a requirement, either by inclusion or preclusion, and therefore do not impose any costs on issuers of health benefit plans that wish to use an automated system to tie in CPT codes with diagnoses codes.

Comment: A commenter stated that the rules are too broad, specifically mentioning terms and definitions that exceed medically acceptable guidelines for patients with ABI. The commenter further stated that as a result, health benefit plans will have difficulty implementing the rules, and will be unable to determine the CPT codes for those services stated in the rule, and that interpretation of covered services may differ between health benefit plans.

Agency Response: The department disagrees. The terms in the rule are set forth in the statute. Since the definitions, as well as language for the rule provisions, were developed after consultation with clinicians, a review of the medical literature regarding ABI and rehabilitation, and the department´s understanding of the legislative intent of HB 1676, the department does not believe that plans will have difficulty with the rules or determining CPT codes. The department does not believe it is feasible in the rule to identify all the potential therapies and CPT codes that could fall under the broad services identified in Article 21.53Q.

Comment: A commenter stated that the rule´s broad definitions and prescriptive nature will cause implementation to have a significant financial impact on a health benefit plan. The commenter requested an accurate cost impact statement to be included "due to the expanding nature of the rules."

Agency Response: The department believes that the cost note contained in the proposed rule sufficiently assesses and reflects the costs associated with implementation of the rule. The commenter´s remaining concerns relate to costs that are the direct result of the legislative enactment of Insurance Code Article 21.53Q, and not the result of the adoption, enforcement, or administration of the new sections. The department believes that the statute takes into consideration costs associated with the statute and these rules as it requires the Sunset Advisory Commission (SAC) to determine the impact of costs of the required coverage. Additionally, the department will assist the SAC as required by Article 21.53Q.

Comment: A commenter requested that the language of the rule specifically identify that psychiatric and psychological services will at times be the appropriate care for an ABI.

Agency Response: The department agrees that psychiatric and psychological services may be the appropriate care, but does not agree that specific language is required to recognize this fact. Section 21.3101(a)(2) recognizes that if these or any other services required by the statute or rule are provided for the treatment of an ABI, they must be provided under a plan´s medical/surgical benefits so as not to be subject to maximum payment limits otherwise applicable to mental/behavioral benefits.

Comment: A commenter stated its understanding that the rules would not designate any specific treatment recommendations for ABIs. The commenter referred to testimony delivered during consideration of HB 1676, and noted that a variety of witnesses testified that hyperbaric therapy, bio-feedback, cognitive therapy, neuro-feedback, and several other forms of treatment are effective procedures for individuals with ABI. The commenter requested that the proposed rules accurately convey that none of these specific treatments are excluded. Another commenter stated its understanding that the treatments for brain injury listed in the statute include coverage for hyperbaric oxygen therapy (HBOT).

Agency Response: The rule does not preclude the provision of any treatment if it falls within one of the covered services enumerated in Article 21.53Q §2 and §21.3103, and the service is medically necessary, efficacious, and not experimental or investigational for the diagnosis for which it is prescribed. The department believes that the rules reflect the requirements of HB 1676 and its intent.

§21.3101(a)(1).

Comment: A commenter stated that the language, "based on an individualized treatment plan, or provided or ordered by a licensed healthcare practitioner," seems to allow for unlicensed "therapists" to be covered and reimbursed.

Agency Response: The department believes that there are individuals who are not required to be licensed, but who may provide some of the therapies outlined in the statute and rule under the direction of a licensed healthcare practitioner. As such, the language, "or ordered by a licensed healthcare practitioner," was intended to recognize that certain therapies may be provided by unlicensed persons performing the services under the direction or order of a licensed healthcare practitioner. The department recognizes, however, that the provision cited by the commenter could be clarified further, and has changed the language to: "provided by, or ordered and provided under the direction of a licensed healthcare practitioner." A similar change has also been made to §21.3101(c)(2).

Comment: A commenter stated that Article 21.53Q §2(a) is expressed as a prohibition of an exclusion of coverage for certain services relating to acquired brain injuries, and these rules affirmatively require that such coverage be provided. This results in potential conflict with §21.3103(a), which parallels the statutory prohibition against excluding coverage for ABI. The commenter suggested that the rule mirror the statutory language in this regard.

Agency Response: The department does not believe that the provision of services to enrollees will differ based upon whether the provision is stated as a prohibited exclusion or as required coverage. The department believes that the purpose statement is most clearly stated in the affirmative.

Comment: A commenter stated that the "most integrated living environment" standard is inflexible, and may preclude other appropriate and more cost-effective results. The commenter suggested that the provision of care be revised.

Agency Response: The department agrees and has made the following change: "the most integrated living environment appropriate to the individual."

§21.3101(a)(2).

Comment: One commenter noted that this subsection automatically requires that all services related to ABIs be provided under medical/surgical health coverage, but that some ABI services may be appropriately delivered as mental health services, and would then be subject to mental health benefits and limits. Another commenter noted that many patients with ABI have concurrent psychological problems that may require similar therapies, but which are not related to the brain injury itself. This commenter asked whether the rule requires health benefit plans to pay until the neurological diagnosis is ruled out and then apply psychiatric benefits or, if an enrollee with an ABI has a psychiatric diagnosis, whether health benefit plans must apply the psychiatric benefits until a neurological diagnosis is established. Because the testing and therapies may not be covered under psychiatric benefits, the commenter requested clarification of how the department interprets application of those benefits.

Agency Response: The department disagrees with the comment that ABI services delivered as mental health services should be appropriately subject to mental health benefits and limits. Under Article 21.53Q, a diagnosis that falls within the definition of an ABI is a medical, not a mental/behavioral health diagnosis and therefore is not subject to mental/behavioral health limits. The intent of Article 21.53Q is, among other things, to prohibit health benefit plans from limiting or excluding coverage for ABI services by identifying or classifying them as behavioral health services in lieu of medical services.

The benefits required to be provided by this rule only apply upon a diagnosis that falls within the definition of ABI. If an enrollee is diagnosed with an ABI, and services are provided due to the ABI, then the enrollee should be covered under the health plan´s medical/surgical benefits even if the required services are psychiatric or behavioral health services or are provided by behavioral health professionals. In instances where the individual has an existing mental/behavioral condition, and subsequently sustains an ABI, then a health benefit plan can continue to cover the pre-existing mental/behavioral diagnosis under the mental/behavioral benefits of the health benefit plan, and such benefits may be subject to applicable limitations and exclusions. To the extent the condition is a result of the ABI, it would be covered as a medical/surgical benefit.

§21.3101(c)(2): A commenter questioned the intention of this paragraph, stating that the original purpose of HB 1676 was to enable persons with ABI to obtain insurance coverage by their carriers for cognitive rehabilitation services as traditionally offered within a rehabilitation setting. The commenter noted that too many individuals with ABI were being denied coverage based upon the exact terminology used in subsection (c)(2) by their carriers. The commenter also referenced several medical authorities in support of the need to provide cognitive rehabilitation services for persons with ABI. In summary, the commenter noted that the language in subsection (c)(2) controverts the entire purpose of HB 1676, and the commenter recommended that it be deleted.

Agency Response: The department disagrees with the commenter´s interpretation and/or application of the language in this section. This subsection does not permit outright exclusion of services for ABI. Rather, it recognizes that there are, or may be, situations where coverage for a given service is not appropriate for that individual.

§21.3101(a)(1) and (c)(2): A commenter requested clarification that the terms "medically necessary, clinically proven, goal-oriented, etc." do not establish different standards for services required by Article 21.53Q than for other mandated benefits regulated in other statutes and rules enforced by TDI.

Agency Response: The rules are written to capture the same criteria that health benefit plans are currently required to comply with in determining medical necessity for any mandated benefit or procedure. The rules do not establish standards different from those used for other benefits regulated in other statutes or rules enforced by the department.

§21.3102. Definitions.

§21.3102(1): A commenter stated that the definition of ABI is too broad and unclear, and recommended the following definition: "A neurological insult to the brain, which is not hereditary, congenital, or degenerative. In an infant, the injury to the brain has occurred after 30 days of life and results in a change in neuronal activity, which results in an impairment of physical functioning, sensory processing, cognition, or psychosocial behavior."

Agency Response: The department disagrees. The definition of ABI was developed in consultation with various clinicians, a review of literature on ABI and rehabilitation, a review of the legislative history of HB 1676, and the department´s understanding of the legislative intent. The definition represents a synthesis of current clinical knowledge regarding ABI. Nothing in the statute allows the department to arbitrarily exclude coverage of these services for the first 30 days of life.

§21.3102(2): A commenter stated that the definition of cognitive communication therapy is too broad, and recommends removal of the word "all."

Agency Response: The department agrees and has deleted the word "all."

§21.3102(3), (4), (18), (22): A commenter is concerned with omission of language in the definitions to include certain adaptive aids and assistive devices which many of the covered therapies incorporate. The commenter recommended inclusion of language to address "augmentative and alternative communications systems," intended to include electronic and non-electronic aids for either aided or unaided communication, "electronic and non-electronic cognitive enhancement aids," and aids for daily living." This commenter also noted that the term "services" as used in the definitions may exclude interpretations that include assistive aids and devices. The commenter noted t"ahat some devices, i.e., durable medical equipment, may be covered by policy riders, and that other specific devices may be significant in facilitating some individuals' rehabilitation and reintegration following ABI.

Agency Response: The department disagrees that it is necessary to include the suggested language in the definitions. Adaptive aids and assistive devices may be covered if the individual´s health benefit plan covers durable medical equipment or other benefits cover the specific device. The coverage for assistive aids and adaptive devices is consistent with coverage for other medical diagnoses.

§21.3102(4): A commenter stated that the definition of community reintegration services does not appear to specify an ending point, and asked the department to clarify the definition.

Agency Response: The commenter's concerns are addressed in §21.3101(a) and (c)(2). Duration of treatment and therapy is based on each individual´s medical needs and will vary depending on the individual´s situation.

§21.3102(8): A commenter recognized that the language in the definition of "neurobehavioral testing" regarding the interviewing of family members or significant others could place health benefit plans in the position of having to pay for services for interviewing non-members. The commenter suggested deletion of the last sentence of the definition.

Agency Response: The department disagrees and does not believe the deletion is necessary. The interviewing of family members or significant others is considered the standard of practice and is usually included as part of the comprehensive fee for assessment and testing of an individual requiring neurobehavioral testing.

§21.3102(9): A commenter recommended adding to the definition of "neurobehavioral treatment" language identifying psychiatric and psychotherapeutic interventions and behavioral management and modification techniques as examples of interventions that may be included. The commenter stated its belief that, unless these interventions are specifically identified as appropriate under the statute and rule, payors are likely to provide them, if at all, as a mental health benefit subject to policy limits. The commenter based its opinion on its experience that providers are already doing this. The commenter noted that as attempts were made to get insurers to cover psychiatric or psychotherapeutic interventions or to employ behavior management or modification techniques needed as a result of an ABI, the insurers insist on covering them under their more limited mental health benefits.

Agency Response: The department acknowledges the commenter´s concerns; however, the services recommended by the commenter are covered under the rule´s current definition. Additionally, the department believes that the treatments identified by the commenter are required to be covered under the medical/surgical benefits of the health benefit plan as required by §21.3103(d) and (e) and also recognized at §21.3101(2).

§21.3102(17): A commenter stated that the inclusion of physical illness or injury in the definition of "other similar coverage" precludes recognition of those circumstances in which mental/behavioral health services are appropriately utilized to treat acquired brain injuries.

Agency Response: The department points out that nothing in the rule precludes the use of any appropriate services to treat individuals with ABI even when those services are provided by, or through, a behavioral health provider. The intent of Article 21.53Q is to, among other things, prohibit health benefit plans from limiting or excluding coverage for services for ABI by identifying or classifying them as behavioral health services in lieu of medical services. When services are necessary for the treatment of an individual with an ABI, this places treatment and hence, coverage, in the realm of a medical diagnosis, and services should be provided under the medical benefit portion of the plan.

§21.3103(c).

Comment: A commenter stated that the provision as written will require insurance companies, and, therefore, the public, to pay for coverage for ABI forever. The commenter stated that there needs to be an end to an insurance company´s obligation, and that families have to take some responsibility for those individuals with ABI.

Agency Response: The commenter's concerns are addressed in §21.3101(a) and (c)(2). Services for ABI should be medically necessary, goal-oriented, and efficacious, and based on an individualized treatment plan. Duration of treatment and therapy is based on each individual´s medical needs and will vary depending on the particular situation.

Comment: A commenter noted that the phrase, "required by subsection (a) of this section" implies that this is a mandated benefit rather than a prohibited exclusion. The commenter suggested that the phrase be replaced with "necessary as a result of and related to an acquired brain injury ...".

Agency Response: The language in §21.3101(a) already states that the services for ABI may not be excluded if they are necessary as a result of and related to an ABI. The department notes that subsection (c) refers to subsection (a) which already contains the language suggested by the commenter.

§21.3103(e): A commenter stated that it is unclear what is allowed under this section and recommended the following language: "The coverage for services required by subsection (a) of this section may be limited to those provided or prescribed by a provider acting under the scope of his or her license. Health maintenance organizations may further limit such services to those provided by providers participating in the provider network, to the extent allowed by Chapter 20A, Texas Insurance Code. The coverage for services required by subsection (a) may exclude services that are solely educational in nature and experimental or investigational, if such exclusions also apply to similar coverage under the health benefit plan."

Agency Response: The department disagrees that the suggested language is necessary for this rule as network requirements are addressed in the Texas HMO Act, Insurance Code Chapter 20A. In addition, the suggested language would not be appropriate for all health benefit plans required to comply with the rules.

§21.3104.

Comment: A commenter stated that this section is too prescriptive in regard to how health benefit plans generally handle cases of special need. The commenter stated that there is already a process for case management and identification of all persons with special needs and that an ABI diagnosis should be included in that process. The commenter recommended that this section reference the current requirements already set forth in §11.1902(4) (Quality Improvement Program), with some changes.

Another commenter stated that health benefit plans agree that training is appropriate, but that identification of special therapies above and beyond those listed in the statute exceeds the requirements in the statute, and noted that there is already a requirement for training in the utilization review statute (Insurance Code Article 21.58A). The commenter recommended deleting paragraphs (1), (2) and (3) from subsection (c) and recommended the department require training on the benefits required by the statute or rule as stated in paragraph (4).

With respect to the section's documentation and verification requirement, a commenter recommended that a one-time special training be performed in a manner reported to the department, and that once the initial training has been completed, ABI training should be included in the trainings required by the utilization review statute and the HMO and PPO statutes and rules. The commenter stated that documentation of such special training could be made available upon examination of the health benefit plan.

Agency Response: The department disagrees. Article 21.53Q requires the department to set forth standards for training of persons performing preauthorization and utilization review for ABI. The department believes that the rules allow health benefit plans maximum flexibility in implementing the training requirement, and points out that the proposed rule´s cost note addresses various mechanisms by which health benefit plans may control the costs associated with requirements of the rule. Additionally, §11.1902 would not apply to all types of health benefit plans.

Comment: A commenter stated concerns about language addressing "avoiding confusion between medical and mental health benefits," as it may not be feasible for any health benefit plan to be able to differentiate between the two. The commenter provided an example of a patient with sociopathic behavior or borderline personality disorder who subsequently sustains a closed head injury in an automobile accident, and noted the difficulties of identifying whether subsequent behavioral problems stem from the existing sociopathic behavior or borderline personality disorder, or whether the problems stem from the closed head injury in the automobile accident.

Agency Response: If an enrollee is diagnosed with an ABI, and services are provided due to the ABI, then the enrollee should be covered under the medical/surgical benefits of the health benefit plan even if the services required are psychiatric or behavioral health services, or are provided by behavioral health professionals. The benefits required to be provided by this rule only apply once a diagnosis is made that falls within the definition of ABI. For individuals with mental/behavioral issues where no ABI diagnosis has been made, the department believes it is appropriate for health benefit plans to cover the services as mental/behavioral services under the health benefit plan. In instances where the individual has a pre-existing mental/behavioral condition, and subsequently sustains an ABI, it may be reasonable for a health benefit plan to continue to cover the pre-existing mental/behavioral diagnosis under the mental/behavioral benefits of the health benefit plan, and such benefits may be subject to applicable limitations and exclusions. To the extent the condition is a result of the ABI, it would be covered as a medical/surgical benefit.

For: Rep. Lon Burnam.

For with changes: Centre for Neuro Skills, Texas Technology Access Project, Texas Traumatic Brain Injury Advisory Council, CIGNA Health Care.

Against: Transitional Learning Center at Galveston, Texas Association of Health Plans, Scott & White.

Neither for nor against: Rep. Harryette Ehrhardt, Lt. Governor Bill Ratliff, Senator David Cain.

The new sections are adopted under Insurance Code Article 21.53Q and §36.001. Article 21.53Q provides that the commissioner shall adopt rules as necessary to implement the article. Article 21.53Q also requires the commissioner by rule to require the issuer of a health benefit plan to provide adequate training to personnel responsible for preauthorization of coverage or utilization review under the plan to prevent wrongful denial of coverage required under the article and to avoid confusion of medical benefits with mental health benefits. Section 36.001 provides that the Commissioner of Insurance may adopt rules to execute the duties and functions of the Texas Department of Insurance as authorized by statute.

§21.3101. General Provisions.

(a) Purpose. The purpose of this subchapter is to:

(1) ensure that enrollees in health benefit plans receive coverage for certain services for acquired brain injury and to facilitate the recovery and progressive rehabilitation of survivors of acquired brain injuries to the extent possible to their pre-injury condition by making available therapies that are medically necessary, clinically proven, goal-oriented, efficacious, based on individualized treatment plans, and provided by, or ordered and provided under the direction of a licensed healthcare practitioner with the goal of returning the individual to, or maintaining the individual in, the most integrated living environment appropriate to the individual;

(2) ensure that an issuer provides coverage for services related to an acquired brain injury under the medical/surgical provisions of the health benefit plan;

(3) require the issuer of a health benefit plan to provide adequate training of individuals responsible for preauthorization of coverage or utilization review under the plan in order to prevent wrongful denial of coverage required under Article 21.53Q and this subchapter, and to avoid confusion of medical/surgical benefits with mental/behavioral health benefits; and

(4) gather information to allow the department to cooperate with, and to assist, the Sunset Advisory Commission in determining to what extent the coverage required by Article 21.53Q and this subchapter is being used by enrollees in health benefit plans to which the article and this subchapter apply, and to determine the impact of the required coverage on the cost of those health benefit plans.

(b) Severability. If a court of competent jurisdiction holds that any provision of this subchapter is inconsistent with any statutes of this state, is unconstitutional, or for any other reason is invalid, the remaining provisions shall remain in full effect. If a court of competent jurisdiction holds that the application of any provision of this subchapter to particular persons, or in particular circumstances, is inconsistent with any statutes of this state, is unconstitutional, or for any other reason is invalid, the provision shall remain in full effect as to other persons or circumstances.

(c) Applicability.

(1) These sections apply to all health benefit plans delivered, issued for delivery, or renewed on or after January 1, 2002.

(2) Nothing in this subchapter requires the issuer of a health benefit plan to provide coverage for services that are not medically necessary, clinically proven, goal-oriented, efficacious, based on an individualized treatment plan, or provided by, or ordered and provided under the direction of a licensed healthcare practitioner.

§21.3102. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise:

(1) Acquired brain injury -- A neurological insult to the brain, which is not hereditary, congenital, or degenerative. The injury to the brain has occurred after birth and results in a change in neuronal activity, which results in an impairment of physical functioning, sensory processing, cognition, or psychosocial behavior.

(2) Cognitive communication therapy -- Services designed to address modalities of comprehension and expression, including understanding, reading, writing, and verbal expression of information.

(3) Cognitive rehabilitation therapy -- Services designed to address therapeutic cognitive activities, based on an assessment and understanding of the individual´s brain-behavioral deficits.

(4) Community reintegration services -- Services that facilitate the continuum of care as an affected individual transitions into the community.

(5) Enrollee -- A person covered by a health benefit plan.

(6) Health benefit plan -- As described in Insurance Code Article 21.53Q, §1.

(7) Issuer -- Those entities identified in Article 21.53Q, §1(a)(1) - (9).

(8) Neurobehavioral testing -- An evaluation of the history of neurological and psychiatric difficulty, current symptoms, current mental status, and premorbid history, including the identification of problematic behavior and the relationship between behavior and the variables that control behavior. This may include interviews of the individual, family, or others.

(9) Neurobehavioral treatment -- Interventions that focus on behavior and the variables that control behavior.

(10) Neurocognitive rehabilitation -- Services designed to assist cognitively impaired individuals to compensate for deficits in cognitive functioning by rebuilding cognitive skills and/or developing compensatory strategies and techniques.

(11) Neurocognitive therapy -- Services designed to address neurological deficits in informational processing and to facilitate the development of higher level cognitive abilities.

(12) Neurofeedback therapy -- Services that utilize operant conditioning learning procedure based on electroencephalography (EEG) parameters, and which are designed to result in improved mental performance and behavior, and stabilized mood.

(13) Neurophysiological testing -- An evaluation of the functions of the nervous system.

(14) Neurophysiological treatment -- Interventions that focus on the functions of the nervous system.

(15) Neuropsychological testing -- The administering of a comprehensive battery of tests to evaluate neurocognitive, behavioral, and emotional strengths and weaknesses and their relationship to normal and abnormal central nervous system functioning.

(16) Neuropsychological treatment -- Interventions designed to improve or minimize deficits in behavioral and cognitive processes.

(17) Other similar coverage -- The medical/surgical benefits provided under a health benefit plan. This term recognizes a distinction between medical/surgical benefits, which encompass benefits for physical illnesses or injuries, as opposed to benefits for mental/behavioral health under a health benefit plan.

(18) Post-acute transition services -- Services that facilitate the continuum of care beyond the initial neurological insult through rehabilitation and community reintegration.

(19) Psychophysiological testing -- An evaluation of the interrelationships between the nervous system and other bodily organs and behavior.

(20) Psychophysiological treatment -- Interventions designed to alleviate or decrease abnormal physiological responses of the nervous system due to behavioral or emotional factors.

(21) Remediation -- The process(es) of restoring or improving a specific function.

(22) Services -- The work of testing, treatment, and providing therapies to an individual with an acquired brain injury.

(23) Therapy -- The scheduled remedial treatment provided through direct interaction with the individual to improve a pathological condition resulting from an acquired brain injury.

§21.3103. Coverage for Services.

(a) An issuer may not exclude coverage for services for cognitive rehabilitation therapy, cognitive communication therapy, neurocognitive therapy and rehabilitation, neurobehavioral, neurophysiological, neuropsychological, and psychophysiological testing or treatment, neurofeedback therapy, remediation, post-acute transition services or community reintegration services, if such services are necessary as a result of and related to an acquired brain injury.

(b) For purposes of Insurance Code Article 21.53Q, §2 and subsection (a) of this section, the word "necessary" means "medically necessary."

(c) Treatment goals for services required by subsection (a) of this section may include the maintenance of functioning or the prevention of or slowing of further deterioration.

(d) The coverage for services required by subsection (a) of this section may be subject to the deductibles, copayments, coinsurance, or annual or maximum payment limits that are consistent with deductibles, copayments, coinsurance, and annual or maximum payment limits applicable to other similar coverage under the health benefit plan.

(e) The coverage for services required by subsection (a) of this section may be subject to limitations and exclusions that are generally applicable to other physical illnesses or injuries under the health benefit plan. These types of exclusions or limitations include, but are not limited to, limitations or exclusions for services that may be limited or excluded because they are solely educational in nature, experimental or investigational, not medically necessary, or services for which the enrollee failed to obtain proper preauthorization under the requirements of the health benefit plan.

(f) The types of limitations or exclusions permitted under subsection (d) of this section do not include limitations or exclusions under a health benefit plan which, in and of themselves, meet the definition of a therapy or service required under subsection (a) of this section. For example, if a health benefit plan contains an exclusion for biofeedback therapy, the issuer may deny coverage for biofeedback therapy for any diagnosis except an acquired brain injury diagnosis because biofeedback falls within the definition of "neurofeedback" as defined in §21.3102(12) of this subchapter (relating to Definitions), and for which coverage is required under subsection (a) of this section. However, if the same health benefit plan also contains an exclusion for services that are not authorized prior to service, the issuer may, as allowed by subsection (e) of this subsection, deny coverage based upon the prior authorization exclusion.

(g) An issuer may deny coverage and/or apply a limitation or exclusion in a health benefit plan for a service listed in subsection (a) of this section if the service is prescribed for a condition that, although a result of, or related to, an acquired brain injury, was sustained in an activity or occurrence for which other similar coverage under the health benefit plan is limited or excluded (e.g., acts of war, participation in a riot, etc.).

§21.3104. Training.

(a) In this section, "preauthorization" has the meaning assigned by Insurance Code Article 21.53Q, and includes benefit determinations for proposed medical or health care services.

(b) Each issuer shall develop written preauthorization and utilization review policies and procedures for the purpose of identifying services to be covered for acquired brain injury to be utilized by any individual responsible for preauthorization of coverage or utilization review. Such policies and procedures shall include:

(1) identification of all current Common Procedural Terminology (CPT) codes associated with services for acquired brain injury; and

(2) a means to identify an enrollee initially diagnosed with an acquired brain injury.

(c) Each issuer shall ensure that all employees or staff responsible for preauthorization of coverage or utilization review, or any individual performing these processes, receive training to prevent wrongful denial of coverage required under Article 21.53Q and this subchapter, and to avoid confusion of medical/surgical benefits with mental/behavioral health benefits. At a minimum, training shall consist of:

(1) identification of services likely to be requested in treating an enrollee with an acquired brain injury;

(2) identification of specific therapies currently used in treating an enrollee with an acquired brain injury;

(3) instruction relating to correctly evaluating requests for services to differentiate between covered medical/surgical benefits versus covered benefits for mental/behavioral health;

(4) instruction relating to the requirements of Article 21.53Q and this subchapter.

(d) At a minimum, training shall be accomplished by attendance at an initial orientation, inservice, or continuing education program relating to acquired brain injuries and their treatments, provided that such training shall be consistent with the requirements of subsections (a) and (b) of this section.

(1) Documentation and verification of training shall be maintained for each employee or staff member responsible for preauthorization of coverage, utilization review, or any individual performing these processes.

(2) Upon request, any documentation and verification required by paragraph (1) of this subsection shall be provided to the issuer with whom the employee, staff member, or individual is employed or contracted.

(3) Upon request, any documentation and verification required by paragraph (1) of this subsection shall be provided to the department for review.

(e) The requirements of this section shall also apply to any contracted entity of an issuer to the extent the contracted entity is responsible for preauthorization, or utilization review.

§21.3105. Provision of CPT Codes. Each issuer of a health benefit plan subject to Insurance Code Article 21.53Q and this subchapter shall, upon request from the department, submit to the department the list of CPT codes identified by the issuer pursuant to §21.3104(b)(1) of this subchapter (relating to Training).



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