(a) Applicability. The applicability of this section
is as follows.
  (1) This section applies to the independent review
of medical necessity disputes that are filed on or after June 1, 2012.
Dispute resolution requests filed prior to June 1, 2012 shall be resolved
in accordance with the statutes and rules in effect at the time the
request was filed.
  (2) When applicable, retrospective medical necessity
disputes shall be governed by the provisions of Labor Code §413.031(n)
and related rules.
  (3) All independent review organizations (IROs) performing
reviews of health care under the Labor Code and Insurance Code, regardless
of where the independent review activities are located, shall comply
with this section. The Insurance Code, the Labor Code and related
rules govern the independent review process.
(b) IRO Certification. Each IRO performing independent
review of health care provided in the workers' compensation system
shall be certified pursuant to Insurance Code Chapter 4202 and Chapter
12 of this title (relating to Independent Review Organizations).
(c) Professional licensing requirements. Notwithstanding
Insurance Code Chapter 4202, an IRO that uses doctors to perform reviews
of health care services provided under this section may only use doctors
licensed to practice in Texas that hold the appropriate credentials
under Chapter 180 of this title (relating to Monitoring and Enforcement).
Personnel employed by or under contract with the IRO to perform independent
review shall also comply with the personnel and credentialing requirements
under Chapter 12 of this title.
(d) Conflicts. Conflicts of interest will be reviewed
by the department consistent with the provisions of the Insurance
Code §4202.008, Labor Code §413.032(b), §§12.203,
12.204, and 12.206 of this title (relating to Conflicts of Interest
Prohibited, Prohibitions of Certain Activities and Relationships of
Independent Review Organizations and Individuals or Entities Associated
with Independent Review Organizations, and Notice of Determinations
Made by Independent Review Organizations, respectively), and any other
related rules. Notification of each IRO decision must include a certification
by the IRO that the reviewing health care provider has certified that
no known conflicts of interest exist between that health care provider
and the injured employee, the injured employee's employer, the insurance
carrier, the utilization review agent, any of the treating health
care providers, or any of the health care providers utilized by the
insurance carrier to review the case for determination prior to referral
to the IRO.
(e) Monitoring. The division will monitor IROs under
Labor Code §§413.002, 413.0511, and 413.0512. The division
shall report the results of the monitoring of IROs to the department
on at least a quarterly basis. The division will make inquiries, conduct
audits, receive and investigate complaints, and take all actions permitted
by the Labor Code and other applicable law against an IRO or personnel
employed by or under contract with an IRO to perform independent review
to determine compliance with applicable law, this section, and other
applicable division rules.
(f) Requestors. The following parties may be requestors
in medical necessity disputes:
  (1) In network disputes:
    (A) health care providers, or qualified pharmacy processing
agents acting on behalf of a pharmacy, as described in Labor Code §413.0111,
for preauthorization, concurrent, and retrospective medical necessity
dispute resolution;
    (B) injured employees or a person acting on behalf
of an injured employee for preauthorization, concurrent, and retrospective
medical necessity dispute resolution; and
    (C) subclaimants in accordance with §§140.6,
140.7, or 140.8 of this title, as applicable.
  (2) In non-network disputes:
    (A) health care providers, or qualified pharmacy processing
agents acting on behalf of a pharmacy, as described in Labor Code §413.0111,
for preauthorization, concurrent, and retrospective medical necessity
dispute resolution;
    (B) injured employees or injured employee's representative
for preauthorization and concurrent medical necessity dispute resolution;
and, for retrospective medical necessity dispute resolution when reimbursement
was denied for health care paid by the injured employee; and
    (C) subclaimants in accordance with §140.6 of
this title (relating to Subclaimant Status: Establishment, Rights,
and Procedures), §140.7 of this title (relating to Health Care
Insurer Reimbursement under Labor Code §409.0091), or §140.8
of this title (relating to Procedures for Health Care Insurers to
Pursue Reimbursement of Medical Benefits under Labor Code §409.0091),
as applicable.
(g) Requests. A request for independent review must
be filed in the form and manner prescribed by the department. The
department's IRO request form may be obtained from:
  (1) the department's website at http://www.tdi.texas.gov/;
or
  (2) the Managed Care Quality Assurance Office, Mail
Code 103-6A, Texas Department of Insurance, P.O. Box 149104, Austin,
Texas 78714-9104.
(h) Timeliness. A requestor shall file a request for
independent review with the insurance carrier that actually issued
the adverse determination or the insurance carrier's utilization review
agent (URA) that actually issued the adverse determination no later
than the 45th calendar day after receipt of the insurance carrier's
denial of an appeal. The insurance carrier shall notify the department
of a request for an independent review within one working day from
the date the request is received by the insurance carrier or its URA.
In a preauthorization or concurrent review dispute request, an injured
employee with a life-threatening condition, as defined in §133.305
of this subchapter (relating to MDR--General), is entitled to an immediate
review by an IRO and is not required to comply with the procedures
for an appeal to the insurance carrier.
(i) Dismissal. The department may dismiss a request
for medical necessity dispute resolution if:
  (1) the requestor informs the department, or the department
otherwise determines, that the dispute no longer exists;
  (2) the requestor is not a proper party to the dispute
pursuant to subsection (f) of this section;
  (3) the department determines that the dispute involving
a non-life-threatening condition has not been submitted to the insurance
carrier for an appeal;
  (4) the department has previously resolved the dispute
for the date(s) of health care in question;
  (5) the request for dispute resolution is untimely
pursuant to subsection (h) of this section;
  (6) the request for medical necessity dispute resolution
was not submitted in compliance with the provisions of this subchapter;
or
  (7) the department determines that good cause otherwise
exists to dismiss the request.
(j) IRO Assignment and Notification. The department
shall review the request for IRO review, assign an IRO, and notify
the parties about the IRO assignment consistent with the provisions
of Insurance Code §4202.002(a)(1), §1305.355(a), Chapter
12, Subchapter F of this title (relating to Random Assignment of Independent
Review Organizations), any other related rules, and this subchapter.
(k) Insurance Carrier Document Submission. The insurance
carrier or the insurance carrier's URA shall submit the documentation
required in paragraphs (1) - (6) of this subsection to the IRO not
later than the third working day after the date the insurance carrier
or URA receives the notice of IRO assignment. The documentation shall
include:
  (1) the forms prescribed by the department for requesting
IRO review;
  (2) all medical records of the injured employee in
the possession of the insurance carrier or the URA that are relevant
to the review, including any medical records used by the insurance
carrier or the URA in making the determinations to be reviewed by
the IRO;
  (3) all documents, guidelines, policies, protocols
and criteria used by the insurance carrier or the URA in making the
decision;
  (4) all documentation and written information submitted
to the insurance carrier in support of the appeal;
  (5) the written notification of the initial adverse
determination and the written adverse determination of the appeal
to the insurance carrier or the insurance carrier's URA; and
  (6) any other information required by the department
related to a request from an insurance carrier for the assignment
of an IRO.
(l) Additional Information. The IRO shall request additional
necessary information from either party or from other health care
providers whose records are relevant to the review.
  (1) The party or health care providers with relevant
records shall deliver the requested information to the IRO as directed
by the IRO. If the health care provider requested to submit records
is not a party to the dispute, the insurance carrier shall reimburse
copy expenses for the requested records pursuant to §134.120
of this title (relating to Reimbursement for Medical Documentation).
Parties to the dispute may not be reimbursed for copies of records
sent to the IRO.
  (2) If the required documentation has not been received
as requested by the IRO, the IRO shall notify the department and the
department shall request the necessary documentation.
  (3) Failure to provide the requested documentation
as directed by the IRO or department may result in enforcement action
as authorized by statutes and rules.
(m) Designated Doctor Exam. In performing a review
of medical necessity, an IRO may request that the division require
an examination by a designated doctor and direct the injured employee
to attend the examination pursuant to Labor Code §413.031(g)
and §408.0041. The IRO request to the division must be made no
later than 10 days after the IRO receives notification of assignment
of the IRO. The treating doctor and insurance carrier shall forward
a copy of all medical records, diagnostic reports, films, and other
medical documents to the designated doctor appointed by the division,
to arrive no later than three working days prior to the scheduled
examination. Communication with the designated doctor is prohibited
regarding issues not related to the medical necessity dispute. The
designated doctor shall complete a report and file it with the IRO,
in the form and manner prescribed by the division no later than seven
working days after completing the examination. The designated doctor
report shall address all issues as directed by the division.
(n) Time Frame for IRO Decision. The IRO will render
a decision as follows:
  (1) for life-threatening conditions, no later than
eight days after the IRO receipt of the dispute;
  (2) for preauthorization and concurrent medical necessity
disputes, no later than the 20th day after the IRO receipt of the
dispute;
  (3) for retrospective medical necessity disputes, no
later than the 30th day after the IRO receipt of the IRO fee; and
  (4) if a designated doctor examination has been requested
by the IRO, the above time frames begin on the date of the IRO receipt
of the designated doctor report.
(o) IRO Decision. The decision shall be mailed or otherwise
transmitted to the parties and to representatives of record for the
parties and transmitted in the form and manner prescribed by the department
within the time frames specified in this section.
  (1) The IRO decision must include:
    (A) a list of all medical records and other documents
reviewed by the IRO, including the dates of those documents;
    (B) a description and the source of the screening criteria
or clinical basis used in making the decision;
    (C) an analysis of, and explanation for, the decision,
including the findings and conclusions used to support the decision;
    (D) a description of the qualifications of each physician
or other health care provider who reviewed the decision;
    (E) a statement that clearly states whether or not
medical necessity exists for each of the health care services in dispute;

    (F) a certification by the IRO that the reviewing health
care provider has no known conflicts of interest pursuant to the Insurance
Code Chapter 4202, Labor Code §413.032, and §12.203 of this
title; and
    (G) if the IRO's decision is contrary to the division's
policies or guidelines adopted under Labor Code §413.011, the
IRO must indicate in the decision the specific basis for its divergence
in the review of medical necessity of non-network health care.
  (2) The notification to the department shall also include
certification of the date and means by which the decision was sent
to the parties.
(p) Insurance Carrier Use of Peer Review Report after
an IRO Decision. If an IRO decision determines that medical necessity
exists for health care that the insurance carrier denied and the insurance
carrier utilized a peer review report on which to base its denial,
the peer review report shall not be used for subsequent medical necessity
denials of the same health care services subsequently reviewed for
that compensable injury.
Cont'd...