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SUBCHAPTER W. COVERAGE FOR ACQUIRED BRAIN INJURY

28 TAC §§21.3101 - 21.3105

The Texas Department of Insurance proposes new Subchapter W, §§21.3101 - 21.3105, concerning coverage for acquired brain injury. 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 proposed sections prohibit issuers of health benefit plans from excluding certain services necessary as a result of and related to an acquired brain injury. The proposed sections also implement a statutory training requirement in 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.

Proposed §21.3101 sets forth general provisions such as the purpose of this subchapter, and provisions addressing severability and applicability. Proposed §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). Proposed §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 proposed section also sets forth what limits or standard coverage provisions may be placed on coverage for services for acquired brain injury. The proposed section addresses items including, but not limited to, the deductibles, copayments, or limits for experimental therapies or services or exclusions that may be applied to services for coverage for acquired brain injury under a health benefit plan. Proposed §21.3104 sets forth the statutorily required training requirements as described in Article 21.53Q, §3. The proposed 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 proposed new section also sets forth the minimum training requirements for employees or staff responsible for preauthorization of coverage or utilization review, or any individual performing these processes, and addresses the means by which the training requirement under the regulations may be satisfied, including documentation and verification of such training. Proposed new §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.

The department will consider the adoption of the proposed new sections in a public hearing under Docket Number 2521, scheduled for 9:30 a.m., on June 18, 2002, in Room 100 of the William P. Hobby, Jr. State Office Building, 333 Guadalupe Street, Austin, Texas.

Kimberly Stokes, Senior Associate Commissioner, Life, Health & Licensing, has determined that for each year of the first five years the proposed sections will be in effect, there will be no fiscal impact to state and local governments as a result of the enforcement or administration of the rule. There will be no measurable effect on local employment or the local economy as a result of the proposal.

Ms. Stokes has also determined that for each year of the first five years the proposed sections are in effect, the public benefits anticipated as a result of the proposed sections will be increased access to services for testing, therapy, and rehabilitation for persons with acquired brain injury to allow these persons to lead meaningful lives with the aid of modern healthcare and rehabilitation services. In general, the anticipated economic costs to persons required to comply with the sections are the result of the legislative enactment of Insurance Code Article 21.53Q, and are not the result of the adoption, enforcement, or administration of the proposed new sections. The anticipated economic costs for persons required to identify all current Common Procedural Terminology (CPT) codes associated with services for acquired brain injury, as required by §21.3104(b), will depend upon how the compilation of CPT codes is accomplished. The department's cost estimate recognizes that, in order to comply with the requirements of §21.3104(b), it is most likely that a registered nurse will be assigned to review claim data for patients with acquired brain injury, including a review of coding manuals, to compile a list of the codes utilized for services required by these proposed sections, in particular §21.3103(a). To maintain an updated and current CPT code list, this process would need to be repeated at regular intervals. The department estimates that the anticipated costs will be between $22.00 - $25.00 per hour of labor, and that it will take approximately 10 hours for one registered nurse to compile the list of CPT codes. It is also anticipated that a nurse performing this task will require the aid of clerical staff such as a general file clerk or office clerk paid at an approximate hourly rate of $9.50, or by a bookkeeping, accounting, or auditing clerk paid at an approximate hourly rate of $13.00. These labor figures are based upon Texas Workforce Commission Occupational Employment Statistics f or 2001 (produced in cooperation with the Bureau of Labor Statistics), with figures adjusted by the department for the year 2002. Paper and printing costs are estimated at $.05 - $.10 per page of information using both the front and back of a page. The department believes that once the list is compiled by a nurse, it will be reviewed and approved by a physician. The anticipated costs for physician review and approval will be between $53.00 - $75.00 per hour of labor, and that it will take approximately two hours for one physician to review and approve the compiled list of CPT codes. These labor figures are based upon Texas Workforce Commission Occupational Employment Statistics for 2001, and are based upon the figures provided for internists, family practice physicians, and psychiatrists. The figures have been adjusted by the department for the year 2002.

The anticipated economic costs to persons required to train personnel responsible for preauthorization of coverage or utilization review are the result of the legislative enactment of Insurance Code Article 21.53Q, §3(b) and are not the result of the adoption, enforcement, or administration of the proposed new sections. The anticipated economic costs to persons required to document and verify training, as required by §21.3104(d), will vary depending upon the method by which documentation and verification of training is accomplished. In most instances, the department believes that training will be conducted at an orientation session at which the person attending the training will add his or her name and/or signature to a sign-in sheet to verify that he or she has attended the orientation, or will complete a short separate form to verify his or her attendance. This information could be placed in the attendee's personnel file to document and verify that the person received the required training, or could be maintained in a master list. The department estimates that labor to document and verify training, including providing it upon request to an issuer of a health benefit plan, or to the department, could be handled by clerical staff such as a general file clerk or office clerk paid at an approximate hourly rate of $9.50, or by a bookkeeping, accounting, or auditing clerk paid at an approximate hourly rate of $13.00. These labor figures are based upon 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. Paper and printing costs are estimated at $.05 - $.10 per page of information using both the front and back of a page. The department's cost estimate to comply with the requirement to provide the information to an issuer of a health benefit plan, or to the department, depends upon how the information is provided (i.e., via fax, United States mail, hand-deli very , or other means), and the amount of information submitted to the department in a single correspondence. The department estimates that, at the most, it would take 15 minutes for a clerical staff person to prepare information for transmission, whether by mail, fax, or otherwise. The department envisions that in most, if not all instances, verification of training will be submitted to the issuer of a health benefit plan or to the department via U.S. mail. The department estimates that costs to provide the information is approximately $.40 per page of information sent via U.S. Mail. This estimate recognizes that it is possible that more than one page can be sent in a single envelope or packet, and that the cost incurred will depend upon the U.S. Postal Service's applied rate based on the size and weight of the package. The department notes, however, that the proposed sections do not require the information to be provided in any particular format. Therefore, persons required to comply with the requirements of §21.3104(d) have the option to greatly reduce costs by transmitting the information via facsimile, by submitting a 3.5" computer floppy disk, or via email. The department estimates that the cost to mail one 3.5" computer floppy disk is $8.00. This estimate includes costs for the diskette, preparation and transmittal of a cover letter, and postage costs. The department estimates that the cost to send one page of information via facsimile will vary depending upon the location of the health plan. A person sending a fax via local phone call with no long distance charges will likely incur no costs for the phone call. A person faxing via long distance phone call will likely incur costs between $.10 - $1.00 per minute of fax time for the phone call. This cost estimate depends upon the rate paid for long distance phone calls. The department estimates that the costs associated with transmitting the verification of training via email is the cost of labor of 15 minutes of clerical support time to transmit the required documentation.

The costs per hour of labor and the costs for identification of CPT codes, verification and documentation of training, and paper and mailing costs to provide training information to the issuer of a health benefit plan or to the department upon request, will not vary between the smallest and largest businesses, assuming that issuers of health benefit plans, utilization review agents, or other persons required to comply with these sections, and which qualify as small or micro businesses, take the same or similar amount of time to identify CPT codes, and train approximately the same percentage of staff responsible for preauthorization of coverage or utilization review. There is no anticipated difference between the costs of personnel necessary to identify CPT codes, or to document and verify training for micro, small, or large issuers of health benefit plans, utilization review agents, or other persons required to comply with these sections since the cost is proportionate to the amount of time it takes a registered nurse to identify current CPT codes for acquired brain injury, and the time it takes a physician to review and approve a compiled list of CPT codes, and since the percentage of personnel trained and the time required by clerical staff to document and verify required training is also proportionate. Therefore, it is the department's position that the adoption of these proposed sections will have no adverse effect on small or micro businesses. Regardless of the fiscal effect, the department does not believe it is legal or feasible to reduce or waive the requirement for small or micro businesses, as to do so would result in a disparate effect on enrollees or other persons with acquired brain injury protected by Article 21.53Q and these proposed sections.

To be considered, written comments on the proposal must be submitted no later than 5:00 p.m. on Monday, June 10, 2002 to Lynda H. Nesenholtz, General Counsel and Chief Clerk, Mail Code 113-2A, Texas Department of Insurance, P. O. Box 149104, Austin, Texas 78714-9104. An additional copy of the comment must be simultaneously submitted to Ms. Margaret Lazaretti, Mail Code 107-2A, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104.

The new sections are proposed 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 in order 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.

The following articles are affected by this proposal: Insurance Code Article 21.53Q

§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 or ordered by a licensed healthcare practitioner with the goal of returning the individual to, or maintaining the individual in, the most integrated living environment;

(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 or ordered by 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 all 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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