PART 2. TEXAS DEPARTMENT OF INSURANCE, DIVISION OF WORKERS' COMPENSATION
CHAPTER 133. GENERAL MEDICAL PROVISIONS
SUBCHAPTER B. HEALTH CARE PROVIDER BILLING PROCEDURES
INTRODUCTION. The Texas Department of Insurance, Division of Workers' Compensation (DWC) adopts amendments to 28 TAC §133.30, concerning Telemedicine and Telehealth Services. Section 133.30 implements Texas Labor Code §413.011, which requires DWC to adopt health care reimbursement policies and guidelines that reflect the standardized reimbursement structures found in other health care delivery systems with minimal modifications. The amendments are adopted with a change to correct an editorial error in the proposed text published in the June 23, 2023, issue of the Texas Register (48 TexReg 3396). The rule will be republished.
REASONED JUSTIFICATION. Amending §133.30 is necessary to conform the section to Texas Occupations Code Chapter 111, which was amended to define "teledentistry dental service" by House Bill (HB) 2056, 87th Legislature, Regular Session (2021). Section 133.30 sets billing requirements when a health care provider provides telemedicine and telehealth services.
Section 133.30 has definitions for "telemedicine services" and "telehealth services" and requires health care providers to bill for "telemedicine services" and "telehealth services" using the applicable Medicare payment policies and requirements of Chapter 133 of this title. DWC adopts the amendments that add a definition for "teledentistry services" and add Medicaid payment policies to the list of applicable payment policies that health care providers must use to bill for telemedicine, telehealth, and teledentistry services.
SUMMARY OF COMMENTS AND AGENCY RESPONSE.
Commenters: DWC received one written comment, no oral comments, and no requests for a hearing. The Office of Injured Employee Counsel (OIEC) commented in support of the proposal.
Comment on §133.30: "OIEC supports the proposed amendments to conform with the statutory changes of Texas Occupations Code Chapter 111 as amended by the Texas Legislature under House Bill (HB) 2056 and effective September 1, 2021. OIEC also supports the Division's actions to expand access to teledentistry services. The Division's proposal should benefit the injured employees of Texas."
Agency Response to Comment on §133.30: DWC thanks OIEC for the comment.
STATUTORY AUTHORITY. The commissioner of workers' compensation adopts the amendments to 28 TAC §133.30 under Labor Code §§402.00111, 402.00116, 402.061, 408.027, and 413.011; Insurance Code §§1305.003 and 1305.153; and Occupations Code §111.001.
Labor Code §402.00111 provides that the commissioner of workers' compensation shall exercise all executive authority, including rulemaking authority, under Title 5 of the Labor Code.
Labor Code §402.00116 provides that the commissioner of workers' compensation shall administer and enforce this title, other workers' compensation laws of this state, and other laws granting jurisdiction to or applicable to DWC or the commissioner.
Labor Code §402.061 provides that the commissioner of workers' compensation shall adopt rules as necessary to implement and enforce the Workers' Compensation Act.
Labor Code §408.027 addresses payment of health care providers. Labor Code §408.027(g) provides that, despite any other provision in Title 5, Subtitle A, Labor Code or Insurance Code Chapter 1305, §408.027 applies to health care provided through a workers' compensation health care network established under Chapter 1305. Subsection (g) also requires the commissioner to adopt rules as necessary to implement §408.027.
Labor Code §413.011 requires the commissioner to adopt health care reimbursement policies and guidelines that reflect the standardized reimbursement structures found in other health care delivery systems with minimal modifications to those reimbursement methodologies as necessary to meet occupational injury requirements. To match these standardizations, §413.011 requires the commissioner to adopt the current reimbursement methodologies, models, and values or weights the federal Centers for Medicare and Medicaid Services uses. This includes applicable payment policies related to coding, billing, and reporting.
Insurance Code §1305.003(b) states that Chapter 1305 prevails if there is a conflict between the Workers' Compensation Act and Chapter 1305 regarding:
- the provision of medical benefits for injured employees;
- the establishment and regulation of fees for medical treatments and services;
- the time frames for payment of medical bills;
- the operation and regulation of workers' compensation health care networks;
- the regulation of providers who contract with those networks; or
- the resolution of disputes about medical benefits provided through those networks.
Insurance Code §1305.153(a) states that the amount of reimbursement for services provided by a network provider is determined by the contract between the network and the provider or group of providers.
Insurance Code §1305.153(d) states that, subject to Insurance Code §1305.153(a), billing by, and reimbursement to, contracted and out-of-network providers are subject to the requirements of the Workers' Compensation Act and DWC's applicable rules, consistent with Chapter 1305. The paragraph further states that this subsection may not be construed to require application of a rule on reimbursement if that application would negate the reimbursement amounts the network negotiated.
Occupations Code §111.001(2-a) defines "teledentistry dental service" as a health care service delivered by a dentist, or a health professional acting under the delegation and supervision of a dentist, acting within the scope of the dentist's or health professional's license or certification to a patient at a different physical location than the dentist or health professional using telecommunications or information technology.
§133.30.Telemedicine, Telehealth, and Teledentistry Services.
(a) This section applies to medical billing and reimbursement for telemedicine, telehealth, and teledentistry services provided on or after September 1, 2021, to injured employees in the Texas workers' compensation system, including injured employees subject to a workers' compensation health care network established under Insurance Code Chapter 1305.
(b) For the purposes of this section:
(1) "telemedicine services" means telemedicine medical services as defined in Occupations Code §111.001;
(2) "telehealth services" means telehealth services as defined in Occupations Code §111.001; and
(3) "teledentistry services" means teledentistry dental services as defined in Occupations Code §111.001.
(c) Except as provided in subsection (d) of this section, a health care provider must bill for telemedicine, telehealth, and teledentistry services according to applicable:
(1) Medicare payment policies, as defined in §134.203 of this title (relating to Medical Fee Guideline for Professional Services);
(2) Medicaid payment policies, in accordance with the dental fee guideline in §134.303 of this title (relating to 2005 Dental Fee Guideline); and
(3) provisions of Chapter 133 of this title.
(d) A health care provider may bill and be reimbursed for telemedicine, telehealth, or teledentistry services regardless of where the injured employee is located at the time the telemedicine, telehealth, or teledentistry services are provided.
(e) The provisions of this section take precedence over any conflicting provisions adopted or used by:
(1) the Centers for Medicare and Medicaid Services in administering the Medicare program; and
(2) the Texas Health and Human Services Commission in administering the Texas Medicaid Program.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 2, 2023.
TRD-202302727
Kara Mace
General Counsel
Texas Department of Insurance, Division of Workers' Compensation
Effective date: August 22, 2023
Proposal publication date: June 23, 2023
For further information, please call: (512) 804-4703
SUBCHAPTER C. MEDICAL QUALITY REVIEW PANEL
INTRODUCTION. The Texas Department of Insurance, Division of Workers' Compensation (DWC) adopts amended 28 TAC §§180.64, 180.66, 180.68, 180.72, and 180.76, concerning the Medical Quality Review Panel (MQRP), under Texas Labor Code §§413.05115, 413.0512, 413.05121, and 413.05122. DWC also adopts the repeal of 28 TAC §180.78, concerning the effective date of the subchapter, because it is no longer necessary.
The amendments to §180.64 and §180.72 and the repeal of §180.78 are adopted without changes to the proposed text published in the June 16, 2023, issue of the Texas Register (48 TexReg 3171) and will not be republished. The amendments to §§180.66, 180.68, and 180.76 are adopted with minor changes to the proposed text published in the June 16, 2023, issue of the Texas Register (48 TexReg 3171) and will be republished.
REASONED JUSTIFICATION. Amending §§180.64, 180.66, 180.68, 180.72, and 180.76 is necessary to conform with related rules and practices, clarify the amount of notice to which a respondent is entitled before an informal settlement conference (ISC), and clarify that DWC may conduct an ISC remotely or in person. The amendments also make editorial changes for plain language and agency style.
Labor Code §413.05115 requires the commissioner to adopt criteria for the medical case review process, in consultation with the medical advisor. Labor Code §413.0512 requires the medical advisor to establish a medical quality review panel of health care providers to assist the medical advisor in performing the duties §413.0511 requires.
The MQRP assists DWC's medical advisor in conducting medical case reviews as part of the medical quality review process to ensure that injured employees in the workers' compensation system get timely, cost-effective, appropriate, medically necessary health care to help them recover and return to work. Labor Code §413.05121 requires the medical advisor to establish the Quality Assurance Panel, also referred to as arbiters, within the MQRP. Labor Code §413.05122 requires the commissioner, after consulting with the medical advisor, to adopt rules concerning the operation of the MQRP.
Section 180.64 concerns the MQRP application process. The amendment to subsection (g) updates the language with the current MQRP membership term of 10 years, as 28 TAC §180.62(e) provides.
Section 180.66 concerns medical case review. The amendment replaces an obsolete reference to recertification with a current reference to renewal to reflect recent amendments to 28 TAC Chapter 127 that updated the certification and renewal process.
Section 180.68 concerns the medical quality review process. The amendment to subsection (a) replaces an obsolete reference to recertification with a current reference to renewal to reflect recent amendments to 28 TAC Chapter 127 that updated the certification and renewal process.
Section 180.72 concerns conflicts of interest. The amendment to subsection (d) deletes an obsolete reference to the associate medical advisor and clarifies that, if the medical advisor must recuse himself due to a conflict of interest, the commissioner will delegate the medical advisor's duties for that case to an arbiter.
Section 180.76 concerns the rights and responsibilities of persons involved in the medical quality review process. The amendments clarify that a person subject to the medical quality review process has the right to 45 days' written notice of an ISC; that DWC may, at its discretion, conduct the ISC remotely or in person; and that the copies of documents that the person has the right to receive are documents that pertain to the substance of the case and that were given to the arbiters to review for that case. The amendments also update an obsolete reference to DWC's attorneys and contain editorial changes for plain language and agency style to make the rule easier to read.
Section 180.78 concerns a 2013 effective date for Subchapter C. That date is now long past. Repealing §180.78 is necessary to ensure that the rules in the subchapter are relevant, which reduces clutter and confusion.
SUMMARY OF COMMENTS AND AGENCY RESPONSE.
Commenters: DWC received two written comments, no requests for a hearing, and no oral comments. Commenters in support of the proposal with changes were: Texas Mutual Insurance Company. One individual commented against the proposal.
Comment on §180.66 and §180.68. A commenter recommended that the term "recertification" be replaced with "renewal" instead of being deleted in those sections.
Agency Response to Comment on §180.66 and §180.68. DWC appreciates the comment and has made those changes.
Comment on §180.76. A commenter recommended that the section specifically state that a request to reschedule an ISC be decided by the attorney presiding over the ISC.
Agency Response to Comment on §180.76. DWC appreciates the comment and has changed the proposed text of "the division" to "the division's presiding attorney."
Comment on Unspecified Sections. A commenter stated, "I want to know when a company do not follow the instructions of their own doctors and just push hurt employees under the bus, will changing the rules do any good when they don't follow the first set."
Agency Response to Comment on Unspecified Sections. DWC appreciates the comment. The comment does not request revisions to the proposed text, but instead refers to potential compliance issues in the system. DWC may refer any potential compliance issues to the Audits and Investigations program area.
28 TAC §§180.64, 180.66, 180.68, 180.72, 180.76
STATUTORY AUTHORITY. DWC adopts §§180.64, 180.66, 180.68, 180.72, and 180.76 under Labor Code §§413.0511, 413.05115, 413.0512, 413.05121, 413.05122, 402.00111, 402.00116, and 402.061.
Labor Code §413.0511 requires DWC to have a medical advisor and describes the medical advisor's duties, including making recommendations about rules and policies to regulate medical matters in the workers' compensation system.
Labor Code §413.05115 requires the commissioner to adopt criteria for the medical case review process, in consultation with the medical advisor.
Labor Code §413.0512 requires the medical advisor to establish a medical quality review panel of health care providers to assist the medical advisor in performing the duties §413.0511 requires.
Labor Code §413.05121 requires the medical advisor to establish the Quality Assurance Panel within the MQRP.
Labor Code §413.05122 requires the commissioner, after consulting with the medical advisor, to adopt rules concerning the operation of the MQRP.
Labor Code §402.00111 provides that the commissioner of workers' compensation shall exercise all executive authority, including rulemaking authority under Title 5 of the Labor Code.
Labor Code §402.00116 provides that the commissioner of workers' compensation shall administer and enforce this title, other workers' compensation laws of this state, and other laws granting jurisdiction to or applicable to DWC or the commissioner.
Labor Code §402.061 provides that the commissioner of workers' compensation shall adopt rules as necessary to implement and enforce the Texas Workers' Compensation Act.
§180.66.Medical Case Review.
The MQRP may perform medical case review for the medical advisor. Medical case review may be performed for the purposes of the medical quality review process, designated doctor certification and renewal, performance-based oversight, or any other medical case review necessary to assist the medical advisor in performing the medical advisor's duties under the Labor Code.
§180.68.Medical Quality Review Process.
(a) The medical quality review process is medical case review initiated on the basis of complaints, plan-based audits, or monitoring as a result of a consent order and performed in accordance with criteria adopted under Labor Code §413.05115. The medical quality review process does not include medical case review performed for the purpose of:
(1) certification and renewal of designated doctors;
(2) performance-based oversight;
(3) administrative violations that do not require an expert medical opinion; or
(4) complaints about professionalism that do not require an expert medical opinion.
(b) A complaint must be documented in accordance with the provisions of §180.2 of this title (relating to Filing a Complaint).
(c) Nothing in this subchapter prevents referrals of complaints to another licensing or law enforcement authority.
§180.76.Rights and Responsibilities of Persons Involved in the Medical Quality Review Process.
(a) The person subject to the medical quality review process has the right:
(1) to be notified that the person has been selected for the medical quality review process;
(2) to be notified of the disposition of the medical quality review process;
(3) to communicate with the office of the medical advisor at any time during the medical quality review process;
(4) to be represented by legal counsel, including legal counsel at the informal settlement conference (ISC);
(5) to receive written notice of an ISC at least 45 days before the ISC, including the time and place of the ISC and the nature of the allegations; and
(6) to an ISC in accordance with the provisions of this section. The ISC provides persons subject to the medical quality review process an opportunity to discuss and resolve their medical case review with arbiters. The division may, at its discretion, conduct an ISC remotely or in person. An ISC is available under the following conditions:
(A) The case has been referred to enforcement.
(B) The request for an ISC must be in writing.
(C) The division will notify the requester of the scheduled date of the ISC.
(D) The requester has the right to receive copies of all documents that pertain to the substance of the case and that were given to the arbiters for review for that particular case.
(E) All information the requester wishes the arbiters to consider at the ISC must be received by the division no later than 15 days before the ISC. The arbiters may refuse to consider any information not timely received by the division.
(F) The requester may request to reschedule the scheduled date of the ISC for good cause shown, in writing, as determined by the division's presiding attorney. Good cause means circumstances beyond the requester's control that reasonably prevent the requester from attending the ISC and requesting that the ISC be rescheduled any sooner.
(G) If a requester fails to attend an ISC as scheduled, the requester loses the right to an ISC. But failure to attend the ISC does not affect the requester's rights to:
(i) communicate with the office of the medical advisor as paragraph (3) of this subsection provides;
(ii) enter into a consent order with the division; or
(iii) defend an enforcement case at the State Office of Administrative Hearings.
(b) A person subject to a medical case review must:
(1) provide records and information requested from the office of the medical advisor in the format and manner specified by the division;
(2) provide the records and information within the time period specified in the request; and
(3) attach an accurate and completed business records affidavit to the request for records and information.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 2, 2023.
TRD-202302729
Kara Mace
General Counsel
Texas Department of Insurance, Division of Workers' Compensation
Effective date: August 22, 2023
Proposal publication date: June 16, 2023
For further information, please call: (512) 804-4703
STATUTORY AUTHORITY. DWC adopts the repeal of §180.78 under Labor Code §§413.05122, 402.00111, 402.00116, and 402.061.
Labor Code §413.05122 requires the commissioner, after consulting with the medical advisor, to adopt rules concerning the operation of the MQRP.
Labor Code §402.00111 provides that the commissioner of workers’ compensation shall exercise all executive authority, including rulemaking authority under Title 5 of the Labor Code.
Labor Code §402.00116 provides that the commissioner of workers’ compensation shall administer and enforce this title, other workers' compensation laws of this state, and other laws granting jurisdiction to or applicable to DWC or the commissioner.
Labor Code §402.061 provides that the commissioner of workers' compensation shall adopt rules as necessary to implement and enforce the Texas Workers' Compensation Act.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 2, 2023.
TRD-202302730
Kara Mace
General Counsel
Texas Department of Insurance, Division of Workers' Compensation
Effective date: August 22, 2023
Proposal publication date: June 16, 2023
For further information, please call: (512) 804-4703