SECTION 133.309. Alternate Medical Necessity Dispute Resolution by Case Review Doctor

(a) Definitions. The following terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise:

(1) case review doctor--a commission selected doctor from the commission's Approved Doctor List assigned to conduct retrospective review of health care for medical necessity under this subsection.

(2) claim-specific--pertaining to one injured employee, a single workers' compensation claim filed by that injured employee, and a single insurance carrier (carrier), as defined in §133.1(a)(10) of this title (relating to Definitions for Chapter 133, Benefits--Medical Benefits), that has accepted liability for the claim.

(3) retrospective medical necessity dispute--a dispute regarding health care provided to an injured employee by a health care provider (HCP), as defined in §133.1(a)(9) of this title, for which reimbursement has been denied to an injured employee or HCP by the carrier based upon the carrier's determination that the health care is not medically necessary.

(b) Applicability.

(1) Alternate Medical Necessity Dispute Resolution by Case Review Doctor (AMDR) is the exclusive process to resolve claim-specific retrospective medical necessity disputes, wherein:

(A) the sum of disputed billed charges on a single bill is less than the tier one fee as established for the review of health care by an Independent Review Organization (IRO) (pursuant to Article 21.58C of the Texas Insurance Code); or

(B) the sum of disputed billed charges on multiple bills is less than the tier one fee as established for the review of health care by an IRO. Multiple billings may not include bills from more than one HCP.

(2) This rule applies to AMDR requests filed with the commission on or after October 1, 2004.

(3) The AMDR process is expressly limited to the resolution of retrospective medical necessity disputes as defined in paragraph (1)(A) and (B) of this subsection.

(4) This process shall not be utilized for the purpose of reviewing or appealing an IRO decision or a State Office of Administrative Hearings (SOAH) decision, nor pending decisions before those bodies, regarding retrospective medical necessity disputes.

(5) For medical services in which the sum of disputed billed charges, as determined in accordance with paragraph (1) of this subsection, is greater than or equal to the tier one fee for an IRO review or for requests received prior to October 1, 2004, the requesting party must file a separate request that adheres to the medical dispute process outlined in §133.308 of this title (relating to Medical Dispute Resolution By Independent Review Organizations).

(6) All disputes involving issues other than medical necessity shall be filed separately and processed under §133.307 of this title (relating to Medical Dispute Resolution of a Medical Fee Dispute) and/or §141.1 of this title (relating to Requesting and Setting a Benefit Review Conference).

(7) Where any terms or parts of this section or its application to any person or circumstance are determined by a court of competent jurisdiction to be invalid, the invalidity does not affect other provisions or applications of this section that can be given affect without the invalidated provision or application.

(c) Effect of Other Disputes.

(1) If, by the fifteenth day after the carrier receives the first written notice of the injury, the carrier has not disputed liability or compensability of the claimed injury, the carrier is liable for all medically necessary care that is provided for the claimed injury until the carrier timely disputes liability or compensability of that injury. A request for AMDR regarding the medical necessity of health care that was provided to treat the claimed injury prior to the carrier's dispute shall proceed to an AMDR final decision and order.

(2) If, by the sixtieth day after the carrier receives the first written notice of the injury, or a later day if there is a finding of evidence that could not reasonably have been discovered earlier, the carrier still has not disputed liability or compensability of the claimed injury, the carrier is liable for all medically necessary care that is provided for the claimed injury. A request for AMDR regarding the medical necessity of health care provided to treat the claimed injury shall proceed to an AMDR final decision and order.

(3) If the carrier timely disputes liability for the subject claim, denies compensability of the injury, or denies compensability of the body parts or conditions for which the health care in dispute was provided, AMDR will not proceed until after final adjudication by the commission finds liability and compensability for the injury.

(4) A request for AMDR regarding the medical necessity of health care provided for body parts or conditions already accepted by the carrier as to liability or compensability, or already adjudicated as to liability or compensability, shall proceed to a final decision and order.

(d) Parties. The following individuals shall be parties to an AMDR:

(1) the HCP who has been denied reimbursement for health care rendered;

(2) the prescribing/referring doctor, if that doctor is not the HCP who provided the care in dispute;

(3) the injured employee, if denied reimbursement for health care paid by the injured employee; and

(4) the carrier. The carrier participates in this process as a responding party and shall not be considered a requesting party.

(e) Timeliness. A request shall be filed with and received by the commission no later than one year from the disputed health care's date of service.

(1) A request by a HCP may be submitted only after exhaustion of the reconsideration process as established in §133.304 of this title (relating to Medical Payments and Denials).

(2) A request by an injured employee shall be initiated by contacting the commission in any manner for assistance with the AMDR requirements. The injured employee's initial contact establishes the date used to determine timeliness. The injured employee is not required to request reconsideration under §133.304 of this title prior to requesting AMDR.

(3) A party who fails to timely file a request waives the right to AMDR.

(f) Request by HCPs.

(1) Two copies of the request for AMDR shall be submitted to the commission in the form and manner prescribed by the commission.

(2) Each copy of the request shall be legible and shall include:

(A) a designation that the request is for AMDR;

(B) a copy of all medical bill(s) as originally submitted for reconsideration in accordance with §133.304 of this title;

(C) copies of written notices of adverse determinations from a carrier (both initial and on reconsideration) such as an explanation of benefits indicating that reimbursement is denied due to the health care not being medically necessary, or, if the carrier failed to respond to the request (either initial or on reconsideration), verifiable evidence or documentation of the carrier's receipt of the request; and

(D) a maximum of five single-sided documents, which may include a summary, supporting the medical necessity of disputed care, clearly identified as the documentation to be reviewed by the case review doctor. The prescribing/referring doctor shall provide the required documentation to the requesting HCP.

(g) Request by Injured Employee. Requests by the injured employee shall be legible and shall include:

(1) a designation that the request is for AMDR;

(2) documentation or evidence (such as itemized receipts) of the amount the injured employee paid the HCP;

(3) a copy of any written notice, if in the possession of the requestor, of adverse determinations from a carrier such as an explanation of benefits indicating that reimbursement is denied due to the health care not being medically necessary, or, if the carrier failed to respond to the request for reimbursement, verifiable evidence or documentation of the carrier's receipt of the request; and

(4) a maximum of five single-sided documents, which may include a summary, supporting the medical necessity of disputed care, clearly identified as the documentation to be reviewed by the case review doctor. The prescribing/referring doctor shall provide the required documentation to the injured employee.

(h) Assignment. The commission, within 10 days of receipt of a complete request for AMDR, shall assign a case review doctor to review and resolve the disputed medical necessity. The case review doctor will be selected, at the commission's discretion, from among commission-approved doctors having appropriate qualifications. The case review doctor shall be considered a doctor performing medical case review for purposes of §413.054 of the Act. The doctors utilized by the commission for this process will be of sufficient number to service the volume of AMDR requests. The case review doctor shall:

(1) be of the same or similar licensure as the prescribing/referring or performing doctor;

(2) have no known conflicts of interest with any of the providers known by the case review doctor to have examined, treated or reviewed records for the injured employee's injury claim;

(3) not have previously treated or examined the injured employee within the past 12 months, nor have examined or treated the injured employee with regard to a medical condition being evaluated in the AMDR request; and

(4) preserve the confidentiality of individual medical records as required by law. Written consent from the injured employee is not required for the case review doctor to obtain medical records relevant to the review.

(i) Notification Order.

(1) The commission, also within 10 days of receipt of a complete request for AMDR, shall issue written notification to the parties which:

(A) indicates the case reviewer's name, license number, practice address, telephone number and fax number;

(B) explains the purpose of the case review;

(C) orders the requestor to pay the case review fee to the case review doctor no later than 14 days from the date of the order, unless the requestor is an injured employee, in which case the carrier is ordered to pay the case review fee; and

(D) advises the carrier to forward a written response to the case review doctor.

(2) The commission's notice to the carrier shall also include a copy of the AMDR request. The notice shall be forwarded to the carrier through its Austin representative. The carrier is deemed to have received the notification order and request for AMDR in accordance with §102.5(d) of this title (regarding General Rules for Written Communication to and from the Commission).

(3) Once the notification order has been issued, withdrawals by any party are not permitted.

(j) Case Review Fee. The AMDR case review fee is $100.00.

(1) An injured employee is never liable for the AMDR case review fee.

(2) The case review fee shall be initially paid by the requestor, unless the requestor is an injured employee, in which case the carrier pays the case review fee. Untimely payment of the case review fee will result in either:

(A) a dismissal of the requestor's AMDR request; or

(B) the issuance of an order to the carrier requiring payment of the case review fee when the requestor is an injured employee.

(3) Final liability for the AMDR case review fee shall be determined as provided in subsection (n) of this section.

(k) Carrier Response. No later than 14 days from the date of the notification order, the carrier shall submit directly to the case review doctor:

(1) the $100.00 case review fee with an annotation identifying the case review number, when required; and

(2) a written response by facsimile or electronic transmission, either explaining why the disputed health care is not medically necessary, or indicating that no documentation will be submitted for review. The response shall be limited to a maximum of five single-sided documents, which may include a summary, supporting the carrier's position. The carrier may elect to provide this written response. If the carrier elects to not provide a written response, the AMDR process will proceed to a final decision and order.

(l) Case Review. The case review doctor shall review up to five single-sided documents provided by each party.

(1) If a party's documentation exceeds the limit of a maximum of five single-sided documents, the case review doctor shall not review any of the offending party's documentation and the case review doctor shall indicate this in the report.

(2) If the case review doctor does not receive a timely response from the carrier, the case review doctor shall proceed with the review and issue the report required by subsection (m) of this section.

(3) To avoid undue influence on the case review doctor, any communication regarding the AMDR dispute between a party and the case review doctor, before, during, or after the review, is prohibited.

(4) Upon completion of the case review, the case review doctor shall maintain a copy of the report, all documentation submitted by the parties, the date the documentation was received and from whom, and the date and time the report was issued to, and received by, all parties. The case review doctor shall forward to the commission, upon request, copies of the retained information.

(m) Report. No later than five days after the date the carrier's response was due, the case review doctor shall issue a report addressing the medical necessity of the disputed health care.

(1) The report must include:

(A) the specific reasons for the case review doctor's determination, including the clinical basis for the decision;

(B) a description of, and the source of, the screening criteria that were utilized;

(C) a description of the qualifications of the case review doctor; and

(D) a certification by the case review doctor that no known conflicts of interest exist with any of the providers known by the case review doctor to have examined, treated or reviewed records for the injured employee's injury claim. The certification must also include a statement that the case review doctor has not previously treated or examined the injured employee within the past 12 months, nor has the case review doctor examined or treated the injured employee with regard to a medical condition being evaluated in the AMDR request.

(2) The case review doctor shall forward the completed report and a copy of the reviewed carrier's response to all parties and the commission.

(A) This information shall be forwarded to all parties and the commission by facsimile or electronic transmission.

(B) If the party is an injured employee and a facsimile number has not been provided, this information shall be provided by other verifiable means.

(3) Requests for clarification from the parties will not be accepted by the commission or the case review doctor. The commission, at its discretion, may seek clarification from the case review doctor and may require the case review doctor to issue an amended report within three days of the commission's request.

(n) Final Decision and Order. The case review doctor's report is deemed to be a commission decision and order, and is effective the date signed by the case review doctor.

(1) The decision and order is final and is not subject to further review.

(2) If the decision and order indicates that none of the disputed care was medically necessary, the decision and order will direct the prescribing/referring doctor to reimburse the requestor the case review fee only if the requestor is a pharmacy or durable medical equipment provider. No other parties shall reimburse, or be entitled to reimbursement of, the case review fee.

(3) If the decision and order indicates that any of the disputed care was medically necessary it will include an order that the carrier pay, in accordance with the commission's fee guidelines, for the care that was determined by the case review doctor to be medically necessary. The carrier will also be ordered to reimburse the requestor the case review fee.

(4) A party shall comply with the decision and order within 20 days of receipt.

(5) This final decision and order shall not be used by a carrier to prospectively deny future medical care.

(o) Dismissal. The commission may dismiss a request for AMDR if the commission determines that good cause exists.

Source Note: The provisions of this §133.309 adopted to be effective September 12, 2004, 29 TexReg 8567