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ADVISORY 2003-11

SUBJECT: Medical Fee Guideline, 28 TAC 134.202

In order to address inquiries regarding 28 TAC 134.202, Medical Fee Guideline and Section 3(d), Article 21.52, Texas Insurance Code, this Advisory clarifies that in the Texas workers' compensation system medical necessity prevails.

The 2002 Medical Fee Guideline at 134.202(a)(4) provides, "Specific provisions contained in the Texas Workers' Compensation Act (the Act), or Texas Workers' Compensation Commission (commission) rules, including this rule, shall take precedence over any conflicting provision adopted by or utilized by CMS in administering the Medicare program."

Texas Labor Code 413.011(c) provides, "This section may not be interpreted in a manner that would discriminate in the amount or method of payment or reimbursement for services in a manner prohibited by Section 3(d), Article 21.52, Insurance Code..."

A payment policy used in the Medicare program must not be utilized for Medical Fee Guideline purposes if it will result in discrimination prohibited by Insurance Code, Article 21.52, Section 3(d).

If the health care is medically necessary, then 134.202 requires reimbursement in accordance with the Act and Commission rules. The health care practitioner should be reimbursed in accordance with the Medicare payment policies that apply to that same service when performed by the most similar practitioner type. For example, a licensed professional counselor would be reimbursed in accordance with the Medicare payment policies applicable for a clinical psychologist billing the same CPT code.

Signed on this 25th day of July, 2003

Richard F. Reynolds, Executive Director


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