1. (a) Applicability. This rule is to be applied as follows.

   1. (1) This rule applies to the independent review of prospective or retrospective medical necessity disputes (a review of health care requiring preauthorization or concurrent review, or retrospective review of health care provided) for which the dispute resolution request was filed on or after January 1, 2003. Dispute resolution requests filed prior to January 1, 2003 shall be resolved in accordance with the rules in effect at the time the request was filed. When applicable, retrospective medical necessity disputes shall be governed by the provisions of §133.309 of this title (relating to Alternate Medical Necessity Dispute Resolution by Case Review Doctor), effective for dispute resolution requests filed on or after October 1, 2004. All independent review organizations (IROs) performing reviews of health care under the Texas Workers' Compensation Act (the Act), regardless of where the independent review activities are based, shall comply with this rule.

   2. (2) The review of medical necessity by an IRO will be determined in the following priority:

      1. (A) prospective medical necessity disputes;
      2. (B) employee reimbursement disputes; and
      3. (C) retrospective medical necessity disputes.

2. (b) TDI Rules. Each IRO performing independent review of health care provided in the workers' compensation system shall be certified by TDI pursuant to Art. 21.58C, of the Texas Administrative Code, and must comply with TDI rules regarding General Provisions and Certification of IROs, Title 28, Part 1, Chapter 12, Subchapters A and B. In addition, TDI rules in Title 28, Part 1, Chapter 12, Subchapters C through F apply to workers' compensation cases except as modified or noted below:

   1. (1) Where the word "patient" is used in those TDI rules, it shall mean the injured employee.
   2. (2) Where any of the terms "health insurance carrier," "health maintenance organization," or "managed care entity" is used in those TDI rules, it shall mean the carrier or its agent.
   3. (3) The Texas Labor Code and commission rules govern the independent review process and related substantive areas, including: requests, filing, notification, time deadlines, parties, billing, payment, appeal from an adverse IRO decision, and other matters addressed in this rule.
   4. (4) A provider who has been removed from the commission Approved Doctor List is not eligible to direct or conduct independent reviews of workers' compensation cases.
   5. (5) The provisions regarding a "life-threatening condition" are not applicable because in the workers' compensation system, emergency health care does not require prospective approval.
   6. (6) In addition to confidentiality requirements in those TDI rules, an IRO shall preserve the confidentiality of claim file information that is confidential pursuant to the Texas Labor Code.
   7. (7) Conflicts of interest will not be screened by TDI; the commission shall screen for conflicts of interest to the extent reasonably possible. (Notification of each IRO decision must include a certification by the IRO that the reviewing provider has certified that no known conflicts of interest exist between that provider and any of the treating providers or any of the providers who reviewed the case for determination prior to referral to the IRO.)
   8. (8) The commission will monitor the activity, quality and outcomes of IRO decisions.

3. (c) Parties. The following persons are allowed to be requestors and respondents in medical necessity dispute resolution:

   1. (1) In a retrospective necessity dispute - the provider who was denied payment for health care rendered, the employee denied reimbursement for health care for which the employee paid, and the carrier.
   2. (2) In a prospective preauthorization dispute - persons or entities as established in §134.600 of this title (relating to Procedure for Requesting Pre-Authorization of Specific Treatments and Services).
   3. (3) In a prospective concurrent review dispute - the provider and the carrier.
4. (d) Requests. A request for independent review of a medical necessity dispute shall be timely filed by the requestor with the division.

5. (e) Timeliness. A person or entity who fails to timely file a request waives the right to independent review or medical dispute resolution. The commission shall deem a request to be filed on the date the division receives the request, and timeliness shall be determined as follows:

   1. (1) A request for retrospective necessity dispute resolution of a medical bill pursuant to §133.304, of this title (relating to Medical Payments and Denials), shall be considered timely if it is filed with the division no later than one (1) year after the date(s) of service in the dispute.
   2. (2) A request for prospective necessity dispute resolution shall be considered timely if it is filed with the division no later than the 45th day after the date the carrier denied approval of the party's request for reconsideration of denial of health care that requires preauthorization or concurrent review pursuant to the provisions of §134.600.

6. (f) Request (General). A request for independent review must be filed in the form, format, and manner prescribed by the commission. The requestor shall file two copies of the request with the division by any mail service or personal delivery, the division will forward one copy of the request to the insurance carrier via its Austin representative, the representative shall sign for the request. Each copy of the request shall be legible, shall include only a single copy of each document, and shall include:

   1. (1) A designation that the request is for review by Independent Review Organization;
   2. (2) Written notices of adverse determinations (both initial and reconsideration) of prospective or retrospective necessity disputes, if in the possession of the requestor;
   3. (3) Documentation of the request for and response to reconsideration, or, if the respondent failed to respond to a request for reconsideration, convincing evidence of carrier receipt of that request;

   4. (4) For medical necessity disputes:

      1. (A) for retrospective necessity disputes, a table of disputed health care denied for lack of medical necessity, which includes complete details of the dispute issues in accordance with §133.304; or
      2. (B) for prospective necessity disputes, a detailed description of the health care requiring preauthorization and/or concurrent review and approval in accordance with §134.600;
   5. (5) A list of any and all providers that have examined or provided health care to the employee during the course of the workers' compensation claim;
   6. (6) list of all providers that participated in the review or determination by the carrier, if known by the requestor; and
   7. (7) if the carrier has raised a dispute pertaining to liability for the claim, compensability, or extent of injury, in accordance with §124.2 of this title (relating to Carrier Reporting and Notification Requirements), the request for an IRO will be held in abeyance until those disputes have been resolved by a final decision of the commission.

7. (g) Carrier Notification to the Commission. The carrier shall complete the remaining sections of the request form and shall provide any missing information required on the form, which shall include:

   1. (1) The respondent information;
   2. (2) A list of any additional providers that have examined, provided, or rendered health care to the employee at any time during the course of the worker's compensation claim;
   3. (3) Notices of adverse determinations of prospective or retrospective medical necessity, not provided by the requestor; and
   4. (4) A list of all providers that participated in the review or determination by the carrier, if known by the requestor.
8. (h) Response. The carrier shall file the response to the request with the division and the requestor by facsimile or other electronic means within seven (7) calendar days of receipt of the request for review by the IRO for prospective preauthorization disputes and 14 calendar days for retrospective medical necessity disputes.

9. (i) Dismissal. A dismissal does not constitute a decision. The commission may dismiss a request for medical necessity dispute resolution if:

   1. (1) The requestor informs the commission, or the commission otherwise determines, that the dispute no longer exists;
   2. (2) The individual or entity requesting medical necessity dispute resolution is not a proper party to the dispute per subsection (c) of this section;
   3. (3) The commission determines that the medical bills in the dispute have not been properly submitted to the carrier for reconsideration pursuant to §133.304;
   4. (4) The fee disputes for the date(s) of health care in dispute have been previously adjudicated by the commission;
   5. (5) The request for dispute resolution is untimely;
   6. (6) The requestor fails to remit the fee for an IRO review;
   7. (7) The request for medical dispute resolution does not contain all the components required by the TWCC-60 form and by subsection (e) or (f) of this section. The requestor may amend and resubmit the request to include all the required components as long as the amended request is filed within the timeframes required by subsection (d) of this section, and the request was not previously dismissed for lack of an IRO fee payment; or
   8. (8) The commission determines that good cause exists to dismiss the request.
10. (j) TWCC Notification of Parties. The commission shall review the request for IRO review, assign an IRO with which no conflict of interest exists, and notify the parties and the IRO of the assignment, by a verifiable means of delivery. The commission will assign disputes on a rotating basis to the IROs certified by TDI, in accordance with Insurance Code article 21.58C and TDI rules. The commission may assign disputes in accordance with the priorities established in this rule and in a manner other than a rotating basis if necessary because of insufficient IRO capacity.

11. (k) IRO Notification of Parties. The IRO shall also notify the parties of the assignment and require that documentation be sent directly to the assigned IRO and received not later than the seventh day after the party's receipt of the IRO notice. The documentation shall include:

    1. (1) Any medical records of the injured employee relevant to the review;
    2. (2) Any documents used by the utilization review agent or carrier in making the decision, to be reviewed by the IRO; and
    3. (3) Any supporting documentation submitted to the utilization review agent or carrier.
12. (l) Confidentiality. No IRO or provider is required to obtain the written consent of the injured employee as a prerequisite to obtaining or releasing medical records relevant to the review in a workers' compensation medical dispute. The IRO shall preserve confidentiality of individual medical records as required by law.
13. (m) Additional Information. The IRO may request additional relevant information from either party or from other providers whose records are relevant to the dispute, to review the medical issues in a dispute. The party shall deliver the requested information to the IRO as directed. The additional information must be received by the IRO within 14 days of receipt of the request for additional information. If the provider requested to submit records is not a party to the dispute, then copy expenses for the requested records shall be reimbursed by the carrier pursuant to §133.106 of this title (relating to Fair and Reasonable Fees for Required Reports and Records). Reimbursement for copies may not be permitted for a party to the dispute.
14. (n) Designated Doctor Exam. In performing a review of medical necessity, an IRO may request that the commission order an examination by a designated doctor and order the employee to attend the examination. The IRO request to the commission must be made no later than 10 days after the IRO receives notification of assignment of the IRO. The treating doctor and carrier shall forward a copy of all medical records, diagnostic reports, films, and other medical documents to the designated doctor appointed by the commission, to arrive no later than three days prior to the scheduled examination. Communication with the designated doctor is prohibited regarding issues not related to the medical dispute. The designated doctor shall complete a report and file it with the IRO, on the form and in the manner prescribed by the commission, no later than seven working days after completing the examination. The designated doctor report shall address all issues the commission instructed the doctor to address.
15. (o) Time Frame for IRO Decision. The IRO will review and render a decision on retrospective medical necessity disputes by the 30th day after the IRO receipt of the dispute. The IRO will review and render a decision on prospective necessity disputes by the 20th day after the IRO receipt of the dispute. If a designated doctor examination has been requested by the IRO, the above time frames begin from the date of the IRO receipt of the designated doctor report.

16. (p) IRO Notification of Decision.

    1. (1) Notification of decision by the independent review organization must include:

       1. (A) the specific reasons, including the clinical basis, for decision;
       2. (B) a description and the source of the screening criteria that were utilized;
       3. (C) a description of the qualifications of the reviewing physician or provider; and
       4. (D) a certification by the IRO that the reviewing provider has certified that no known conflicts of interest exist between that provider and any of the treating providers or any of the providers who reviewed the case for decision prior to referral to the IRO.
    2. (2) The notification in a retrospective necessity dispute must be mailed or otherwise transmitted to the commission not later than the 30th day after the IRO receipt of the dispute.
    3. (3) The notification in a prospective necessity dispute must be delivered to the parties not later than the 20th day after the IRO receipt of the dispute.
    4. (4) The notification to the commission shall also include certification of the date and means by which the decision was sent to the parties.
    5. (5) An IRO decision is deemed to be a commission decision and order.
    6. (6) If an IRO decision finds that medical necessity exists for care that the carrier denied, and the carrier utilized the opinion of a peer review or other case review to issue its denial, the review and its rationale shall not be used on subsequent denials in that claim as the IRO has already found it unconvincing for the disputed health care.
17. (q) Commission Posting. The commission shall post the IRO decision on the commission Internet website after confidential information has been redacted.

18. (r) IRO Fees. IRO fees shall be paid as follows.

    1. (1) Upon receipt of an IRO assignment:

       1. (A) in a prospective dispute or an employee reimbursement dispute, the carrier shall remit payment to the assigned IRO at the same time the carrier files the documentation requested by the IRO;
       2. (B) in a retrospective dispute, the requestor shall remit payment to the assigned IRO at the same time the requestor files the documentation requested by the IRO.

    2. (2) Upon receipt of an IRO decision in a retrospective necessity dispute other than an employee reimbursement dispute, and in a concurrent review prospective necessity dispute, the commission shall review the decision to determine the prevailing party and, if applicable, will order the nonprevailing party to refund the IRO fee to the party who prevailed by CCH or SOAH decision.

       1. (A) If the IRO decision as to the main issue in dispute is a finding of medical necessity, the requestor is the prevailing party.
       2. (B) If the IRO decision does not find medical necessity with respect to the main issue in dispute, the respondent is the prevailing party.
       3. (C) if the IRO decision does not clearly determine the prevailing party, the commission shall determine the allowable fees for the health care in dispute, and the party who prevailed as to the majority of the fees for the disputed health care is the prevailing party.
    3. (3) The IRO shall bill copy expenses to the party liable for the independent review; provided, however, that no copy costs shall be paid to the requestor.
    4. (4) The injured employee shall not be required to pay any portion of the cost of a review.
    5. (5) Designated doctor examinations ordered by the commission at the request of an IRO, shall be paid by the party who is liable for the IRO fee in accordance with the appropriate fee guideline.
    6. (6) IRO fees will be paid in the same amounts as those set by TDI rules for tier one and tier two fees. In addition to the specialty classifications established as tier two fees in TDI rules, independent review by a doctor of chiropractic shall be paid the tier two fee.
    7. (7) If the fee has not been received by the IRO within 7 days of the party's receipt of notice from the IRO, the IRO shall notify the commission and the commission shall issue an order to pay the IRO fee.
    8. (8) Failure to pay or refund the IRO fee may result in enforcement action as allowable by statute and rules, removal from the commission Approved Doctor List, and/or restriction of future requests for independent review.
    9. (9) A party required to pay or refund the IRO fee to the other party is liable for that fee upon receipt of the order from the commission regardless of whether an appeal of the IRO decision has been or will be filed.
    10. (10) If the IRO decision is subsequently reversed or differently decided at a CCH or by a SOAH decision, the commission shall order a refund of the IRO fee to be paid the party who prevailed by CCH or SOAH decision within 10 days of receipt of the order.
    11. (11) The requestor may be liable for the IRO fee if the request is withdrawn or the review is terminated prior to completion.
    12. (12) The fees provided for IRO review may include a second review of dispute issues if the initial decision is determined by the commission to be incomplete. The amended or corrected decision shall be filed with the division within 5 days of the IRO receipt of such notice from the commission.
19. (s) Defense. It is a defense for the carrier if the carrier timely complies with the IRO decision with respect to the medical necessity or appropriateness of health care for an injured employee. If a previously timely filed request for fee dispute resolution exists at the time the IRO issues a decision of medical necessity, the carrier is not required to pay for the disputed health care until the commission has resolved the medical fee dispute. If there is no previously pending request for medical fee resolution, the carrier shall immediately comply with the IRO decision.
20. (t) Unresolved Fee Disputes. If an unresolved fee dispute issue exists at the time the commission receives the IRO decision in a dispute, the commission shall then proceed to resolve the medical fee dispute in accordance with commission rules.

21. (u) Appeal. Except with respect to a prospective necessity dispute regarding spinal surgery, a party to a prospective or retrospective necessity dispute may appeal the IRO decision by filing a written request for a SOAH hearing with the commission Chief Clerk of Proceedings, Division of Hearings in accordance with §148.3 of this title (relating to Requesting a Hearing).

    1. (1) The appeal must be filed no later than 20 days from the date the party received the IRO decision.
    2. (2) The party appealing the IRO decision shall deliver a copy of its written request for a hearing to all other parties involved in the dispute.
    3. (3) The commission shall file the request for hearing with SOAH.
    4. (4) The hearing shall be conducted by the State Office of Administrative Hearings within 90 days of receipt of a request for a hearing in the manner provided for a contested case under Chapter 2001, Government Code (the administrative procedure law).
    5. (5) Notwithstanding other provisions of this rule or any other rules, the acquiring, providing, assembling, filing and offering of documents at any de novo hearing (a new hearing based upon evidence admitted at the SOAH hearing) conducted by the State Office of Administrative Hearings on or after March 1, 2003, whether or not previously exchanged, is the responsibility of the requestor and respondent. Admission and use of such documents at the hearing are controlled by the procedural Rules of the State Office of Administrative Hearings. The commission will not file a copy of the record of the service review by the division with SOAH or any party for a hearing scheduled to be conducted by SOAH (or continued to a date) on or after March 1, 2003.
    6. (6) The parties to the dispute must represent themselves before SOAH, and the IRO is not required to participate in the SOAH hearing.
    7. (7) A party who has exhausted the party's administrative remedies under this subtitle and who is aggrieved by a final decision of the State Office of Administrative Hearings may seek judicial review of the decision. Judicial review under this subsection shall be conducted in the manner provided for judicial review of contested cases under Subchapter G, Chapter 2001, Government Code.
    8. (8) The commission shall post the SOAH decision on the commission website after confidential information has been redacted.

22. (v) Spinal Surgery Appeal. A party to a prospective necessity dispute regarding spinal surgery may appeal the IRO decision by requesting a Contested Case Hearing ("CCH").

    1. (1) The written appeal must be filed with the commission Chief Clerk of Proceedings, Division of Hearings, within 10 days after receipt of the IRO decision and must be filed in compliance with §142.5(c) of this title (relating to Sequence of Proceedings to Resolve Benefit Disputes).
    2. (2) The CCH will be scheduled and held within 20 days of commission receipt of the request for a CCH.
    3. (3) The hearing and further appeals shall be conducted in accordance with Chapters 140, 142, and 143 of this title (relating to Dispute Resolution/General Provisions, Benefit Contested Case Hearing, and Review by the Appeals Panel).
    4. (4) The party appealing the IRO decision shall deliver a copy of its written request for a hearing to all other parties involved in the dispute; the IRO is not required to participate in the CCH or any appeal.
23. (w) In all appeals from reviews of prospective or retrospective necessity disputes, the IRO decision has presumptive weight.
24. (x) The commission is entitled to review, inspect, copy, and/or compel production of documents or other information as necessary to carry out the commission's duties and responsibilities under this rule, the Act, and other applicable statutes.
25. (y) If the commission believes that any person is in violation of the Act or this rule, the commission may initiate appropriate compliance and enforcement action. If the commission believes that any person is in violation of the Insurance Code or TDI rules, the commission may initiate appropriate action in accordance with any Memorandum of Understanding between the Texas Department of Insurance and the commission. Nothing in this rule modifies or limits the authority of the department or the commission.

Source Note:The provisions of this §133.308 adopted to be effective January 2, 2002, 26 TexReg 10934; amended to be effective January 1, 2003, 27 TexReg 12282; amended to be effective September 12, 2004, 29 TexReg 8562.