28 TAC §§19.1703, 19.1723, and 19.1724
1. INTRODUCTION. The Commissioner of Insurance adopts amendments to §§19.1703, 19.1723, and 19.1724, concerning utilization review agents. These amendments are adopted without changes to the proposed text published in the August 5, 2005, issue of the Texas Register (30 TexReg 4439).
2. REASONED JUSTIFICATION. These amendments are necessary to implement Senate Bill (SB) 51, enacted by the 79th Legislature, Regular Session, which in pertinent part revises preauthorization and verification response procedures for single service HMOs providing dental health care services or routine vision services. In addition, amendments to §§19.1723 and 19.1724(a) update references and correct a typographical error.
3. HOW THE SECTIONS WILL FUNCTION. The amendments to §19.1703 add definitions for the terms "routine vision services," consistent with the language of SB 51, and "single health care service plan," consistent with Insurance Code §843.002(26). Consistent with §§843.347(h) and (i) and 843.348 (i) and (j) as enacted in SB 51, the amendments to §§19.1723 and 19.1724 require that an HMO providing routine vision services as a single health care service plan or providing dental health care services as a single health care service plan have appropriate personnel reasonably available at a toll-free telephone number from 8:00 a.m. to 5:00 p.m. central time Monday through Friday on each day that is not a legal holiday to receive and respond to requests for preauthorization and verification. Also consistent with the statutory requirements, the amendments require these single health care service plans to have a telephone system capable of accepting and recording incoming requests during other times and to respond to those off-hour requests no later than the next business day after the call is received.
4. SUMMARY OF COMMENTS AND AGENCY'S RESPONSE TO COMMENTS.
Comment: A commenter agrees with the proposed amendments.
Agency Response: The department appreciates the supportive comment.
5. NAMES OF THOSE COMMENTING FOR AND AGAINST THE SECTIONS.
For: Texas Hospital Association.
Against: None.
6. STATUTORY AUTHORITY. The amendments are adopted under Insurance Code §§843.151, 843.347(h) and (i), 843.348(i) and (j), and 36.001. Section 843.151 authorizes the commissioner to adopt reasonable rules as necessary and proper to implement Insurance Code Title 6 Chapter 843. Sections 843.347(h) and (i) and 843.348(i) and (j) provide that an HMO providing routine vision services as a single health care service plan or providing dental health care services as a single health care service plan is not required to comply with the statutorily specified timeframes for other carriers for receiving and responding to requests for preauthorization and verification, but must instead: have appropriate personnel reasonably available between 8:00 a.m. and 5:00 p.m. central time Monday through Friday to receive and respond to such requests; have a telephone system capable of accepting and recording incoming requests during other times; and respond to those off-hour requests no later than the next business day after the call is received. Section 36.001 provides that the Commissioner of Insurance may adopt any rules necessary and appropriate to implement the powers and duties of the Texas Department of Insurance under the Insurance Code and other laws of this state.
7. TEXT.
§19.1703. 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) Administrative Procedure Act--Government Code, Chapter 2001.
(3) Administrator--A person holding a certificate of authority under the Insurance Code Article 21.07-6.
(4) Adverse determination--A determination by a utilization review agent that the health care services furnished or proposed to be furnished to a patient are not medically necessary or not appropriate.
(5) Appeal process--The formal process by which a utilization review agent offers a mechanism to address adverse determinations.
(6) Certificate--A certificate of registration granted by the commissioner to a utilization review agent.
(7) Commissioner--The commissioner of insurance.
(8) Complaint--An oral or written expression of dissatisfaction with a utilization review agent concerning the utilization review agent's process. A complaint is not a misunderstanding or misinformation that is resolved promptly by supplying the appropriate information or clearing up the misunderstanding to the satisfaction of the enrollee.
(9) Declination--A response to a request for verification in which an HMO or preferred provider carrier does not issue a verification for proposed medical care or health care services. A declination is not necessarily a determination that a claim resulting from the proposed services will not ultimately be paid.
(10) Department--Texas Department of Insurance.
(11) Dental plan--An insurance policy or health benefit plan, including a policy written by a company subject to the Insurance Code Chapter 20, that provides coverage for expenses for dental services.
(12) Dentist--A licensed doctor of dentistry, holding either a D.D.S. or a D.M.D. degree.
(13) Emergency care--Health care services provided in a hospital emergency facility or comparable facility to evaluate and stabilize medical conditions of a recent onset and severity, including but not limited to severe pain, that would lead a prudent layperson possessing an average knowledge of medicine and health to believe that his or her condition, sickness, or injury is of such a nature that failure to get immediate medical care could result in:
(A) placing the patient's health in serious jeopardy;
(B) serious impairment to bodily functions;
(C) serious dysfunction of any bodily organ or part;
(D) serious disfigurement; or
(E) in the case of a pregnant woman, serious jeopardy to the health of the fetus.
(14) Enrollee--A person covered by a health insurance policy or health benefit plan. This term includes a person who is covered as an eligible dependent of another person.
(15) Health benefit plan--A plan of benefits that defines the coverage provisions for health care for enrollees offered or provided by any organization, public or private, other than health insurance.
(16) Health care provider--Any person, corporation, facility, or institution licensed by a state to provide or otherwise lawfully providing health care services that is eligible for independent reimbursement for those services.
(17) Health insurance policy--An insurance policy, including a policy written by a company subject to the Insurance Code, Chapter 20, that provides coverage for medical or surgical expenses incurred as a result of accident or sickness.
(18) Inquiry--A request for information or assistance from a utilization review agent.
(19) Life-threatening--A disease or condition for which the likelihood of death is probable unless the course of the disease or condition is interrupted.
(20) Mental health medical record summary--A summary of process or progress notes relevant to understanding the patient's need for treatment of a mental or emotional condition or disorder such as:
(A) identifying information; and
(B) a treatment plan that includes:
(i) diagnosis;
(ii) treatment intervention;
(iii) general characterization of patient behaviors or thought processes that affect level of care needs; and
(iv) discharge plan.
(21) Mental health therapist--Any of the following persons who, in the ordinary course of business or professional practice, diagnose, evaluate, or treat any mental or emotional condition or disorder:
(A) a person licensed by the Texas State Board of Medical Examiners to practice medicine in this state;
(B) a person licensed as a psychologist by the Texas State Board of Examiners of Psychologists;
(C) a person licensed as a psychological associate by the Texas State Board of Examiners of Psychologists;
(D) a person licensed as a specialist in school psychology by the Texas State Board of Examiners of Psychologists;
(E) a person licensed as a marriage and family therapist by the Texas State Board of Examiners of Marriage and Family Therapists;
(F) a person licensed as a professional counselor by the Texas State Board of Examiners of Professional Counselors;
(G) a person licensed as a chemical dependency counselor by the Texas Commission on Alcohol and Drug Abuse;
(H) a person licensed as an advanced clinical practitioner by the Texas State Board of Social Worker Examiners;
(I) a person licensed as a master social worker by the Texas State Board of Social Worker Examiners;
(J) a person licensed as a social worker by the Texas State Board of Social Worker Examiners;
(K) a person licensed as a physician assistant by the Texas State Board of Physician Assistant Examiners;
(L) a person licensed as a registered professional nurse by the Texas Board of Nurse Examiners;
(M) a person licensed as a vocational nurse by the Texas Board of Vocational Nurse Examiners;
(N) any other person who is licensed or certified by a state licensing board in the State of Texas to diagnose, evaluate, or treat any mental or emotional condition or disorder.
(22) Mental or emotional condition or disorder--A mental or emotional illness as detailed in the most current revision of the Diagnostic and Statistical Manual of Mental Disorders.
(23) Nurse--A registered professional nurse, a licensed vocational nurse, or a licensed practical nurse.
(24) Open records law--Government Code, Chapter 552.
(25) Patient--An enrollee or an eligible dependent of the enrollee under a health benefit plan or health insurance plan.
(26) Payor--An insurer writing health insurance policies; any preferred provider organization, health maintenance organization, self-insurance plan; or any other person or entity which provides, offers to provide, or administers hospital, outpatient, medical, or other health benefits to persons treated by a health care provider in this state pursuant to any policy, plan or contract.
(27) 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.
(28) Physician--A licensed doctor of medicine or a doctor of osteopathy.
(29) Preauthorization--A determination by an HMO or preferred provider carrier that medical care or health care services proposed to be provided to an enrollee are medically necessary and appropriate.
(30) Preferred Provider--
(A) with regard to a preferred provider carrier, a preferred provider as defined by Insurance Code Article 3.70-3C, §1(10) (Preferred Provider Benefit Plans) or Article 3.70-3C, §1(1) (Use of Advanced Practice Nurses and Physician Assistants by Preferred Provider Plans).
(B) with regard to an HMO,
(i) a physician, as defined by Insurance Code §843.002(22), who is a member of that HMO's delivery network; or
(ii) a provider, as defined by Insurance Code §843.002(24), who is a member of that HMO's delivery network.
(31) Provider of record--The physician or other health care provider that has primary responsibility for the care, treatment, and services rendered to the enrollee or the physician or health care provider that is requesting or proposing to provide the care, treatment and services to the enrollee and includes any health care facility when treatment is rendered on an inpatient or outpatient basis.
(32) Retrospective review--A system in which review of the medical necessity and appropriateness of health care services provided to an enrollee is performed for the first time subsequent to the completion of such health care services. Retrospective review does not include subsequent review of services for which prospective or concurrent reviews for medical necessity and appropriateness were previously conducted.
(33) Routine vision services--A routine annual or biennial eye examination to determine ocular health and refractive conditions that may include provision of glasses or contact lenses.
(34) Screening criteria--The written policies, decision rules, medical protocols, or guides 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)).
(35) Single health care service plan--A single health care service plan as defined by Insurance Code Section 843.002(26).
(36) Utilization review--A system for prospective or concurrent review of the medical necessity and appropriateness of health care services being provided or proposed to be provided to an individual within the state. Utilization review shall not include elective requests for clarification of coverage.
(37) Utilization review agent--An entity that conducts utilization review, for an employer with employees in this state who are covered under a health benefit plan or health insurance policy, a payor, or an administrator.
(38) Utilization review plan--The screening criteria and utilization review procedures of a utilization review agent.
(39) Verification--A guarantee by an HMO or preferred provider carrier that the HMO or preferred provider carrier will pay for proposed medical care or health care services if the services are rendered within the required timeframe to the patient for whom the services are proposed. The term includes pre-certification, certification, re-certification and any other term that would be a reliable representation by an HMO or preferred provider carrier to a physician or provider if the request for the pre-certification, certification, re-certification, or representation includes the requirements of §19.1724(d) of this title (relating to Verification).
(40) Working day--A weekday, excluding New Years Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, and Christmas Day.
§19.1723. Preauthorization.
(a) An HMO or preferred provider carrier that requires preauthorization as a condition of payment to a preferred provider shall comply with the procedures of this section for determinations of medical necessity for those services the HMO or preferred provider carrier identifies in accordance with subsection (b) of this section.
(b) An HMO or preferred provider carrier that uses a preauthorization process for medical care and health care services shall provide to each contracted preferred provider, not later than the 10th business day after the date a request is made, a list of medical care and health care services that allows a preferred provider to determine which services require preauthorization and information concerning the preauthorization process.
(c) If the proposed medical care or health care services involve inpatient care, the HMO or preferred provider carrier shall review the request and, if approved, issue a length of stay for the admission into a health care facility based on the recommendation of the patient's preferred provider and the HMO or preferred provider carrier's written medically accepted screening criteria and review procedures.
(d) On receipt of a preauthorization request from a preferred provider for proposed services that require preauthorization, the HMO or preferred provider carrier shall issue and transmit a determination indicating whether the proposed medical or health care services are preauthorized. An HMO or preferred provider carrier shall respond to request for preauthorization within the following time periods.
(1) For services not included under paragraphs (2) and (3) of this subsection, the determination must be issued and transmitted not later than the third calendar day after the date the request is received by the HMO or preferred provider carrier. If the request is received outside of the period requiring the availability of appropriate personnel as required in subsections (e) and (f) of this section, the determination must be issued and transmitted within three calendar days from the beginning of the next time period requiring such personnel.
(2) If the proposed medical or health care services are for concurrent hospitalization care, the HMO or preferred provider carrier shall issue and transmit a determination indicating whether proposed services are preauthorized within 24 hours of receipt of the request. If the request is received outside of the period requiring the availability of appropriate personnel as required in subsections (e) and (f) of this section, the determination must be issued and transmitted within 24 hours from the beginning of the next time period requiring such personnel.
(3) If the proposed medical care or health care services involve post-stabilization treatment, or a life-threatening condition as defined in §19.1703 of this title (relating to Definitions), the HMO or preferred provider carrier shall issue and transmit a determination indicating whether proposed services are preauthorized within the time appropriate to the circumstances relating to the delivery of the services and the condition of the patient, but in no case to exceed one hour from receipt of the request. If the request is received outside of the period requiring the availability of appropriate personnel as required in subsections (e) and (f) of this section, the determination must be issued and transmitted within one hour from the beginning of the next time period requiring such personnel. In such circumstances, the determination shall be provided to the treating physician or health care provider. If the HMO or preferred provider carrier issues an adverse determination in response to a request for post-stabilization treatment or a request for treatment involving a life-threatening condition, the HMO or preferred provider carrier shall provide to the enrollee or person acting on behalf of the enrollee, and the enrollee's provider of record, the notification required by §19.1721(c) of this title (relating to Independent Review of Adverse Determinations).
(e) A preferred provider may inquire via telephone as to the HMO or preferred provider carrier's preauthorization determination. An HMO or preferred provider carrier shall have appropriate personnel as described in §19.1706 of this title (relating to Personnel) reasonably available at a toll-free telephone number to provide the determination between 6:00 a.m. and 6:00 p.m. central time Monday through Friday on each day that is not a legal holiday and between 9:00 a.m. and noon central time on Saturday, Sunday, and legal holidays. An HMO or preferred provider carrier must have a telephone system capable of accepting or recording incoming inquiries after 6:00 p.m. central time Monday through Friday and after noon central time on Saturday, Sunday, and legal holidays and must acknowledge each of those calls not later than 24 hours after the call is received. An HMO or preferred provider carrier providing a preauthorization determination under subsection (d) of this section shall, within three calendar days of receipt of the request, provide a written notification to the preferred provider.
(f) An HMO providing routine vision services or dental health care services as a single health care service plan is not required to comply with subsection (e) of this section with respect to those services. An HMO that is exempt from subsection (e), as described in this subsection, shall:
(1) have appropriate personnel as described in §19.1706 of this title (relating to Personnel) reasonably available at a toll-free telephone number to provide the preauthorization determination between 8:00 a.m. and 5:00 p.m. central time Monday through Friday on each day that is not a legal holiday;
(2) have a telephone system capable of accepting or recording incoming inquiries after 5:00 p.m. central time Monday through Friday and all day on Saturday, Sunday, and legal holidays, and must acknowledge each of those calls not later than the next business day after the call is received; and
(3) when providing a preauthorization determination under subsection (d) of this section, within three calendar days of receipt of the request, provide a written notification to the preferred provider.
(g) If an HMO or preferred provider carrier has preauthorized medical care or health care services, the HMO or preferred provider carrier may not deny or reduce payment to the physician or provider for those services based on medical necessity or appropriateness of care unless the physician or provider has materially misrepresented the proposed medical or health care services or has substantially failed to perform the preauthorized medical or health care services.
(h) If an HMO or preferred provider carrier issues an adverse determination in response to a request made under subsection (d) of this section, a notice consistent with the provisions of §19.1710(c) of this title (relating to Notice of Determinations Made by Utilization Review Agents) shall be provided to the enrollee, a person acting on behalf of the enrollee, or the enrollee's provider of record. An enrollee may appeal any adverse determination in accordance with §19.1712 of this title (relating to Appeal of Adverse Determination of Utilization Review Agents).
(i) This section applies to an agent or other person with whom an HMO or preferred provider carrier contracts to perform, or to whom the HMO or preferred provider carrier delegates the performance of preauthorization of proposed medical or health care services. Delegation of preauthorization services does not limit in any way the HMO or preferred provider carrier's responsibility to comply with all statutory and regulatory requirements.
(j) The provisions of this section may not be waived, voided, or nullified by contract.
§19.1724. Verification.
(a) The provisions of this section apply to:
(1) HMOs;
(2) preferred provider carriers;
(3) preferred providers; and
(4) physicians or health care providers that provide to an enrollee of an HMO or preferred provider carrier:
(A) care related to an emergency or its attendant episode of care as required by state or federal law; or
(B) specialty or other medical care or health care services at the request of the HMO, preferred provider carrier, or a preferred provider because the services are not reasonably available from a preferred provider who is included in the HMO or preferred provider carrier's network.
(b) An HMO or preferred provider carrier must be able to receive a request for verification of proposed medical care or health care services:
(1) by telephone call;
(2) in writing; and
(3) by other means, including the internet, as agreed to by the preferred provider and the HMO or preferred provider carrier, provided that such agreement may not limit the preferred provider's option to request a verification by telephone call.
(c) An HMO or preferred provider carrier shall have appropriate personnel reasonably available at a toll-free telephone number to accept telephone requests for verification and to provide determinations of previously requested verifications between 6:00 a.m. and 6:00 p.m. central time Monday through Friday on each day that is not a legal holiday and between 9:00 a.m. and noon central time on Saturday, Sunday, and legal holidays. An HMO or preferred provider carrier must have a telephone system capable of accepting or recording incoming inquiries after 6:00 p.m. central time Monday through Friday and after noon central time on Saturday, Sunday, and legal holidays. The HMO or preferred provider carrier must acknowledge each of those calls not later than:
(1) for requests relating to post-stabilization care or a life-threatening condition, within one hour after the beginning of the next time period requiring the availability of appropriate personnel at the toll-free telephone number; and
(2) for requests relating to concurrent hospitalization, within 24 hours after the beginning of the next time period requiring the availability of appropriate personnel at the toll-free telephone number; and
(3) for all other requests, within two calendar days after the beginning of the next time period requiring the availability of appropriate personnel at the toll-free telephone number.
(d) An HMO providing routine vision services or dental health care services as a single health care service plan is not required to comply with subsection (c) of this section with respect to those services. An HMO that is exempt from subsection (c) of this section, as described in this subsection, shall:
(1) have appropriate personnel reasonably available at a toll-free telephone number to accept telephone requests for verification and to provide determinations of previously requested verifications between 8:00 a.m. and 5:00 p.m. central time Monday through Friday on each day that is not a legal holiday;
(2) have a telephone system capable of accepting or recording incoming inquiries after 5:00 p.m. central time Monday through Friday and all day on Saturday, Sunday, and legal holidays. The HMO must acknowledge each of those calls not later than the next business day after the call is received.
(e) Any request for verification shall contain the following information:
(1) patient name;
(2) patient ID number, if included on an identification card issued by the HMO or preferred provider carrier;
(3) patient date of birth;
(4) name of enrollee or subscriber, if included on an identification card issued by the HMO or preferred provider carrier;
(5) patient relationship to enrollee or subscriber;
(6) presumptive diagnosis, if known, otherwise presenting symptoms;
(7) description of proposed procedure(s) or procedure code(s);
(8) place of service code where services will be provided and, if place of service is other than provider's office or provider's location, name of hospital or facility where proposed service will be provided;
(9) proposed date of service;
(10) group number, if included on an identification card issued by the HMO or preferred provider carrier;
(11) if known to the provider, name and contact information of any other carrier, including the name, address and telephone number, name of enrollee, plan or ID number, group number (if applicable), and group name (if applicable);
(12) name of provider providing the proposed services; and
(13) provider's federal tax ID number.
(f) Receipt of a written request or a written response to a request for verification under this section is subject to the provisions of §21.2816 of this title (relating to Date of Receipt).
(g) If necessary to verify proposed medical care or health care services, an HMO or preferred provider carrier may, within one day of receipt of the request for verification, request information from the preferred provider in addition to the information provided in the request for verification. An HMO or preferred provider carrier may make only one request for additional information from the requesting preferred provider under this section.
(h) A request for information under subsection (g) of this section must:
(1) be specific to the verification request;
(2) describe with specificity the clinical and other information to be included in the response;
(3) be relevant and necessary for the resolution of the request; and
(4) be for information contained in or in the process of being incorporated into the enrollee's medical or billing record maintained by the preferred provider.
(i) On receipt of a request for verification from a preferred provider, the HMO or preferred provider carrier shall issue a verification or declination. An HMO or preferred provider carrier shall issue the verification or declination within the following time periods.
(1) Except as provided in paragraphs (2) and (3) of this subsection, an HMO or preferred provider carrier shall provide a verification or declination in response to a request for verification without delay, and as appropriate to the circumstances of the particular request, but not later than five days after the date of receipt of the request for verification. If the request is received outside of the period requiring the availability of appropriate personnel as required in subsections (c) and (d) of this section, the determination must be provided within five days from the beginning of the next time period requiring such personnel.
(2) If the request is related to a concurrent hospitalization, the response must be sent to the preferred provider without delay but not later than 24 hours after the HMO or preferred provider carrier received the request for verification. If the request is received outside of the period requiring the availability of appropriate personnel as required in subsections (c) and (d) of this section, the determination must be provided within 24 hours from the beginning of the next time period requiring such personnel.
(3) If the request is related to post-stabilization care or a life-threatening condition, the response must be sent to the preferred provider without delay but not later than one hour after the HMO or preferred provider carrier received the request for verification. If the request is received outside of the period requiring the availability of appropriate personnel as required in subsections (c) and (d) of this section, the determination must be provided within one hour from the beginning of the next time period requiring such personnel.
(j) If the request involves services for which preauthorization is required, the HMO or preferred provider carrier shall follow the procedures set forth in §19.1723 of this title (relating to Preauthorization) and respond regarding the preauthorization request in compliance with that section.
(k) A verification or declination may be delivered via telephone call, in writing or by other means, including the Internet, as agreed to by the preferred provider and the HMO or preferred provider carrier. If the verification or declination is delivered via telephone call, the HMO or preferred provider carrier shall, within three calendar days of providing a verbal response, provide a written response which must include, at a minimum:
(1) enrollee name;
(2) enrollee ID number;
(3) requesting provider's name;
(4) hospital or other facility name, if applicable;
(5) a specific description, including relevant procedure codes, of the services that are verified or declined;
(6) if the services are verified, the effective period for the verification, which shall not be less than 30 days from the date of verification;
(7) if the services are verified, any applicable deductibles, copayments, or coinsurance for which the enrollee is responsible;
(8) if the verification is declined, the specific reason for the declination;
(9) a unique verification number that allows the HMO or preferred provider carrier to match the verification and subsequent claims related to the proposed service; and
(10) a statement that the proposed services are being verified or declined pursuant to Title 28 Texas Administrative Code §19.1724.
(l) An HMO or preferred provider carrier that issues a verification may not deny or otherwise reduce payment to the preferred provider for those medical care or health care services if provided on or before the expiration date for the verification, which shall not be less than 30 days, unless the preferred provider has materially misrepresented the proposed medical or health care services or has substantially failed to perform the medical or health care services as verified.
(m) The provisions of this section may not be waived, voided, or nullified by contract.