28 Tex. Admin. Code § 134.600 – Preauthorization, Concurrent Review, and Voluntary Certification of Health Care

(a) The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:
1. (1) Ambulatory surgical services: surgical services provided in a facility that operates primarily to provide surgical services to patients who do not require overnight hospital care.
2. (2) Concurrent review: a review of on-going health care listed in subsection (q) of this section for an extension of treatment beyond previously approved health care listed in subsection (p) of this section.
3. (3) Diagnostic study: any test used to help establish or exclude the presence of disease/injury in symptomatic individuals. The test may help determine the diagnosis, screen for specific disease/injury, guide the management of an established disease/injury, and formulate a prognosis.
4. (4) Division exempted program: a Commission on Accreditation of Rehabilitation Facilities (CARF) accredited work conditioning or work hardening program that has requested and been granted an exemption by the division from preauthorization and concurrent review requirements except for those provided by subsections (p)(4) and (q)(2) of this section.
5. (5) Final adjudication: the commissioner has issued a final decision or order that is no longer subject to appeal by either party.
6. (6) Outpatient surgical services: surgical services provided in a freestanding surgical center or a hospital outpatient department to patients who do not require overnight hospital care.
7. (7) Preauthorization: prospective approval obtained from the insurance carrier by the requestor or injured employee prior to providing the health care treatment or services (health care).
8. (8) Requestor: the health care provider or designated representative, including office staff or a referral health care provider/health care facility that requests preauthorization, concurrent review, or voluntary certification.
9. (9) Work conditioning and work hardening: return-to-work rehabilitation programs as defined in this chapter.
(b) When division-adopted treatment guidelines conflict with this section, this section prevails.
(c) The insurance carrier is liable for all reasonable and necessary medical costs relating to the health care:
1. (1) listed in subsection (p) or (q) of this section only when the following situations occur:
  1. (A) an emergency, as defined in Chapter 133 of this title (relating to General Medical Provisions);
  2. (B) preauthorization of any health care listed in subsection (p) of this section that was approved prior to providing the health care;
  3. (C) concurrent review of any health care listed in subsection (q) of this section that was approved prior to providing the health care; or
  4. (D) when ordered by the commissioner;
2. (2) or per subsection (r) of this section when voluntary certification was requested and payment agreed upon prior to providing the health care for any health care not listed in subsection (p) of this section.
(d) The insurance carrier is not liable under subsection (c)(1)(B) or (C) of this section if there has been a final adjudication that the injury is not compensable or that the health care was provided for a condition unrelated to the compensable injury.
(e) The insurance carrier shall designate accessible direct telephone and facsimile numbers and may designate an electronic transmission address for use by the requestor or injured employee to request preauthorization or concurrent review during normal business hours. The direct number shall be answered or the facsimile or electronic transmission address responded to by the insurance carrier within the time limits established in subsection (i) of this section.
(f) The requestor or injured employee shall request and obtain preauthorization from the insurance carrier prior to providing or receiving health care listed in subsection (p) of this section. Concurrent review shall be requested prior to the conclusion of the specific number of treatments or period of time preauthorized and approval must be obtained prior to extending the health care listed in subsection (q) of this section. The request for preauthorization or concurrent review shall be sent to the insurance carrier by telephone, facsimile, or electronic transmission and, include the:
1. (1) name of the injured employee;
2. (2) specific health care listed in subsection (p) or (q) of this section;
3. (3) number of specific health care treatments and the specific period of time requested to complete the treatments;
4. (4) information to substantiate the medical necessity of the health care requested;
5. (5) accessible telephone and facsimile numbers and may designate an electronic transmission address for use by the insurance carrier;
6. (6) name of the requestor and requestor's professional license number or national provider identifier, or injured employee's name if the injured employee is requesting preauthorization;
7. (7) name, professional license number or national provider identifier of the health care provider who will render the health care if different than paragraph (6) of this subsection and if known;
8. (8) facility name, and the facility's national provider identifier if the proposed health care is to be rendered in a facility; and
9. (9) estimated date of proposed health care.
(g) A health care provider may submit a request for health care to treat an injury or diagnosis that is not accepted by the insurance carrier in accordance with Labor Code §408.0042.
1. (1) The request shall be in the form of a treatment plan for a 60 day timeframe.
2. (2) The insurance carrier shall review requests submitted in accordance with this subsection for both medical necessity and relatedness.
3. (3) If denying the request, the insurance carrier shall indicate whether the denial is based on medical necessity and/or unrelated injury/diagnosis in accordance with subsection (m) of this section.
4. (4) The requestor or injured employee may file an extent of injury dispute upon receipt of an insurance carrier's response which includes a denial due to unrelated injury/diagnosis, regardless of the issue of medical necessity.
5. (5) Requests which include a denial due to unrelated injury/diagnosis may not proceed to medical dispute resolution based on the denial of unrelatedness. However, requests which include a denial based on medical necessity may proceed to medical dispute resolution for the issue of medical necessity in accordance with subsection (o) of this section.
(h) Except for requests submitted in accordance with subsection (g) of this section, the insurance carrier shall approve or deny requests based solely upon the medical necessity of the health care required to treat the injury, regardless of:
1. (1) unresolved issues of compensability, extent of or relatedness to the compensable injury;
2. (2) the insurance carrier's liability for the injury; or
3. (3) the fact that the injured employee has reached maximum medical improvement.
(i) The insurance carrier shall contact the requestor or injured employee by telephone, facsimile, or electronic transmission with the decision to approve or deny the request as follows:
1. (1) within three working days of receipt of a request for preauthorization; or
2. (2) within three working days of receipt of a request for concurrent review, except for health care listed in subsection (q)(1) of this section, which is due within one working day of the receipt of the request.
(j) The insurance carrier shall send written notification of the approval or denial of the request within one working day of the decision to the:
1. (1) injured employee;
2. (2) injured employee's representative; and
3. (3) requestor, if not previously sent by facsimile or electronic transmission.
(k) The insurance carrier's failure to comply with any timeframe requirements of this section shall result in an administrative violation.
(l) The insurance carrier shall not withdraw a preauthorization or concurrent review approval once issued. The approval shall include:
1. (1) the specific health care;
2. (2) the approved number of health care treatments and specific period of time to complete the treatments; and
3. (3) a notice of any unresolved dispute regarding the denial of compensability or liability or an unresolved dispute of extent of or relatedness to the compensable injury.
(m) The insurance carrier shall afford the requestor a reasonable opportunity to discuss the clinical basis for a denial with the appropriate doctor or health care provider performing the review prior to the issuance of a preauthorization or concurrent review denial. The denial shall include:
1. (1) the clinical basis for the denial;
2. (2) a description or the source of the screening criteria that were utilized as guidelines in making the denial;
3. (3) the principle reasons for the denial, if applicable;
4. (4) a plain language description of the complaint and appeal processes, if denial was based on Labor Code §408.0042, include notification to the injured employee and health care provider of entitlement to file an extent of injury dispute in accordance with Chapter 141 of this title (relating to Dispute Resolution--Benefit Review Conference); and
5. (5) after reconsideration of a denial, the notification of the availability of an independent review.
(n) The insurance carrier shall not condition an approval or change any elements of the request as listed in subsection (f) of this section, unless the condition or change is mutually agreed to by the health care provider and insurance carrier and is documented.
(o) If the initial response is a denial of preauthorization or concurrent review, the requestor or injured employee may request reconsideration.
1. (1) The requestor or injured employee may within 30 days of receipt of a written initial denial request the insurance carrier to reconsider the denial and shall document the reconsideration request.
2. (2) The insurance carrier shall respond to the request for reconsideration of the denial:
  1. (A) as soon as practicable but not later than the 30th day after receiving a request for reconsideration of denied preauthorization; or
  2. (B) within three working days of receipt of a request for reconsideration of denied concurrent review, except for health care listed in subsection (q)(1) of this section, which is due within one working day of the receipt of the request.
3. (3) In addition to the requirements in this section, the insurance carrier's reconsideration procedures shall include a provision that the period during which the reconsideration is to be completed shall be based on the medical or clinical immediacy of the condition, procedure, or treatment.
4. (4) The requestor or injured employee may appeal the denial of a reconsideration request regarding medical necessity by filing a dispute in accordance with Labor Code §413.031 and related division rules.
5. (5) A request for preauthorization for the same health care shall only be resubmitted when the requestor provides objective clinical documentation to support a substantial change in the injured employee's medical condition or that demonstrates that the injured employee has met clinical prerequisites for the requested health care that had not been previously met before submission of the previous request. The insurance carrier shall review the documentation and determine if any substantial change in the injured employee's medical condition has occurred or if all necessary clinical prerequisites have been met. A frivolous resubmission of a preauthorization request for the same health care constitutes an administrative violation.
(p) Non-emergency health care requiring preauthorization includes:
1. (1) inpatient hospital admissions, including the principal scheduled procedure(s) and the length of stay;
2. (2) outpatient surgical or ambulatory surgical services as defined in subsection (a) of this section;
3. (3) spinal surgery;
4. (4) all work hardening or work conditioning services requested by:
  1. (A) non-exempted work hardening or work conditioning programs; or
  2. (B) division exempted programs if the proposed services exceed or are not addressed by the division's treatment guidelines as described in paragraph (12) of this subsection;
5. (5) physical and occupational therapy services, which includes those services listed in the Healthcare Common Procedure Coding System (HCPCS) at the following levels:
  1. (A) Level I code range for Physical Medicine and Rehabilitation, but limited to:
    1. (i) Modalities, both supervised and constant attendance;
    2. (ii) Therapeutic procedures, excluding work hardening and work conditioning;
    3. (iii) Orthotics/Prosthetics Management;
    4. (iv) Other procedures, limited to the unlisted physical medicine and rehabilitation procedure code; and
  2. (B) Level II temporary code(s) for physical and occupational therapy services provided in a home setting;
  3. (C) except for the first six visits of physical or occupational therapy following the evaluation when such treatment is rendered within the first two weeks immediately following:
    1. (i) the date of injury; or
    2. (ii) a surgical intervention previously preauthorized by the insurance carrier;
6. (6) any investigational or experimental service or device for which there is early, developing scientific or clinical evidence demonstrating the potential efficacy of the treatment, service, or device but that is not yet broadly accepted as the prevailing standard of care;
7. (7) all psychological testing and psychotherapy, repeat interviews, and biofeedback, except when any service is part of a preauthorized or division exempted return-to-work rehabilitation program;
8. (8) unless otherwise specified in this subsection, a repeat individual diagnostic study:
  1. (A) with a reimbursement rate of greater than $350 as established in the current Medical Fee Guideline; or
  2. (B) without a reimbursement rate established in the current Medical Fee Guideline;
9. (9) all durable medical equipment (DME) in excess of $500 billed charges per item (either purchase or expected cumulative rental);
10. (10) chronic pain management/interdisciplinary pain rehabilitation;
11. (11) drugs not included in the applicable division formulary;
12. (12) treatments and services that exceed or are not addressed by the commissioner's adopted treatment guidelines or protocols and are not contained in a treatment plan preauthorized by the insurance carrier. This requirement does not apply to drugs prescribed for claims under §§134.506, 134.530 or 134.540 of this title (relating to Pharmaceutical Benefits);
13. (13) required treatment plans; and
14. (14) any treatment for an injury or diagnosis that is not accepted by the insurance carrier pursuant to Labor Code §408.0042 and §126.14 of this title (relating to Treating Doctor Examination to Define the Compensable Injury).
(q) The health care requiring concurrent review for an extension for previously approved services includes:
1. (1) inpatient length of stay;
2. (2) all work hardening or work conditioning services requested by:
  1. (A) non-exempted work hardening or work conditioning programs; or
  2. (B) division exempted programs if the proposed services exceed or are not addressed by the division's treatment guidelines as described in subsection (p)(12) of this section;
3. (3) physical and occupational therapy services as referenced in subsection (p)(5) of this section;
4. (4) investigational or experimental services or use of devices;
5. (5) chronic pain management/interdisciplinary pain rehabilitation; and
6. (6) required treatment plans.
(r) The requestor and insurance carrier may voluntarily discuss health care that does not require preauthorization or concurrent review under subsections (p) and (q) of this section respectively.
1. (1) Denial of a request for voluntary certification is not subject to dispute resolution for prospective review of medical necessity.
2. (2) The insurance carrier may certify health care requested. The carrier and requestor shall document the agreement. Health care provided as a result of the agreement is not subject to retrospective review of medical necessity.
3. (3) If there is no agreement between the insurance carrier and requestor, health care provided is subject to retrospective review of medical necessity.
(s) An increase or decrease in review and preauthorization controls may be applied to individual doctors or individual workers' compensation claims, by the division in accordance with Labor Code §408.0231(b)(4) and other sections of this title.
(t) The insurance carrier shall maintain accurate records to reflect information regarding requests for preauthorization, or concurrent review approval/denial decisions, and appeals, including requests for reconsideration and requests for medical dispute resolution, if any. The insurance carrier shall also maintain accurate records to reflect information regarding requests for voluntary certification approval/denial decisions. Upon request of the division, the insurance carrier shall submit such information in the form and manner prescribed by the division.
(u) For the purposes of this section, all utilization review must be performed by an insurance carrier that is registered with, or a utilization review agent that is certified by, the Texas Department of Insurance to perform utilization review in accordance with Insurance Code, Chapter 4201 and Chapter 19 of this title (relating to Agents' Licensing). Additionally, all utilization review agents or registered insurance carriers who perform utilization review under this section must comply with Labor Code §504.055 and any other provisions of Chapter 19, Subchapter U of this title (relating to Utilization Reviews for Health Care Provided under Workers' Compensation Insurance Coverage) that relate to the expedited provision of medical benefits to first responders employed by political subdivisions who sustain a serious bodily injury in course and scope of employment.
(v) This section is effective July 1, 2012.

Source Note:The provisions of this §134.600 adopted to be effective December 23, 1991, 16 TexReg 7099; amended to be effective April 1, 1997, 22 TexReg 1317; amended to be effective January 1, 2002, 26 TexReg 9874; amended to be effective January 1, 2003, 27 TexReg 12359; amended to be effective March 14, 2004, 29 TexReg 2349; amended to be effective May 2, 2006, 31 TexReg 3566; amended to be effective July 1, 2012, 37 TexReg 2420.