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Advisory 2003-01

SUBJECT: Voluntary Certification of Health Care and Advisory 98-06

With the passage of HB-2600, Texas Labor Code §413.014 was revised with the addition of a new subsection that stated that the Commission may not prohibit a carrier and a health care provider from voluntarily discussing health care treatment and treatment plans, either prospectively or concurrently, and may not prohibit a carrier from certifying or agreeing to pay for health care consistent with those agreements. As a result of this new language, those provisions of Advisory 98-06 that prohibited carriers from prospectively evaluating health care that did not require preauthorization are no longer effective. To the contrary, the Commission added language to Commission Rule 134.600 that addresses the process for health care providers to request such reviews from carriers.

Advisory 2003-01 rescinds Advisory 98-06. However, the following provisions from Advisory 98-06 remain in effect (with slight clarification based upon the new provisions of HB-2600):

  • If a health care provider or pharmacy contacts an insurance carrier before services are provided, and neither preauthorization nor concurrent review are required for the specific services and there is no agreement to voluntarily precertify the requested services, the carrier must still confirm whether or not coverage exists and should inform the requestor that preauthorization/concurrent review is not required. The confirmation of coverage can be accomplished by informing the requesting person that:

    • The carrier will pay for all reasonable and necessary medical treatment if it is related to the compensable injury, and
    • A workers' compensation policy was/was not in effect for the date of injury;
  • Verification of coverage does not bind the carrier or limit the carrier's ability to retrospectively dispute the reasonableness or necessity of treatment after the carrier receives a bill for the services;
  • A carrier should, when asked to confirm coverage, inform a health care provider about the status of any dispute relating to compensability, liability, or extent of injury that the carrier has filed with the Commission; and
  • A certification of maximum medical improvement does not mean that medical treatment is no longer necessary. An injured employee remains entitled to reasonable and necessary medical treatment after the date of maximum medical improvement.

The Commission is currently monitoring prospective denials of health care that do not require preauthorization and prospective denials of all future health care to determine appropriate means for resolving these disputes and to determine if violations of the Texas Workers' Compensation Act or Commission Rules have occurred. The Commission's Medical Advisor and the Medical Quality Review Panel have begun evaluating individual prospective denials (particularly those that seek to deny all future health care). In cases where denials have been based upon peer reviews, both the peer review doctor and the insurance carrier may be subject to quality of care reviews. The Commission is concerned both that some carriers may not be forwarding appropriate documentation to the peer review doctors, and that some peer review doctors are rendering opinions based upon records that are obviously incomplete (such as when gaps in the record suggest that some treatments or services are not reflected in the record or when the file merely contains bills with little other documentation). As needed, the Commission will provide additional direction by advisory and/or rule for resolving prospective disputes of health care outside the preauthorization and concurrent review process. The Commission may initiate sanction(s) in response to actions that violate the Act, Commission Rules, or quality health care standards.

Signed on this 16th day of January, 2003
Richard F. Reynolds, Executive Director

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