1. (a) This section is in addition to and does not affect other sanctions provided by statute or by rules adopted under §415.023(b) or other Rules and it establishes:

   1. (1) the grounds (conduct, actions, inactions, and events) that will require the Executive Director to delete a doctor from the Approved Doctor List (ADL);
   2. (2) the grounds that allow the commission to delete a doctor from the ADL or otherwise issue a sanction against a carrier or doctor;
   3. (3) the evidence the commission may consider as establishing the grounds to delete a doctor or issue a sanction (including the evidence that conclusively establishes the grounds); and
   4. (4) the types of sanctions the commission may recommend or impose.

2. (b) The Executive Director shall delete from the ADL a doctor:

   1. (1) who fails to meet the registration and certification requirements (which also includes required testing/training) of §180.20 of this title (relating to Commission Approved Doctor List);
   2. (2) who is deceased;
   3. (3) who requests to be removed from the ADL; or
   4. (4) whose license to practice in this state is revoked, suspended, or not renewed by the appropriate licensing or certification authority. This includes, but is not limited to, suspensions or revocations that are stayed, deferred, or probated and voluntarily relinquishment of the license to practice.

3. (c) Except as provided by subsection (e) of this section, the Medical Advisor (as defined by Texas Labor Code §413.0511) shall recommend deletion of a doctor from the ADL if any of the following occurs:

   1. (1) significant violation(s) of the Statute, Rules, or a commission decision or order or agreement including, but not limited to:

      1. (A) committing a willful or intentional violation(s) of the Statute, Rules, or a commission decision or order or agreement;
      2. (B) having an uncorrected pattern of practice of violating the Statute, Rules, or commission decisions or orders or agreements;

   2. (2) significant violation of other statutes or regulations not administered by the commission but relevant to the provision of and payments for health care including, but not limited to:

      1. (A) committing an offense that results in the doctor being sanctioned by the Medicare or Medicaid program;

      2. (B) being convicted of a violation of state or federal statutes relating to:

         1. (i) dangerous drugs, controlled substances, or any other drug-related offense;
         2. (ii) fraud;
         3. (iii) moral turpitude; or
         4. (iv) conduct that either resulted in physical harm to or otherwise endangered a person;
      3. (C) committing an act that results in suspension, revocation of license, or issuance of a practice restriction(s) or other limitation(s) by the appropriate licensing or certification authority (even if stayed, deferred, or probated);
      4. (D) being convicted of a criminal offense that indicates an unwillingness or inability to provide quality treatment or to abide by the Statute, Rules or a commission decision or order;

   3. (3) professional failure to practice medicine or provide health care, including chiropractic care, in an acceptable manner consistent with the public health, safety, and welfare, including but not limited to:

      1. (A) engaging in any negligent practice resulting in death, significant injury, or substantial probability of death or significant injury to the provider's patient(s);

      2. (B) providing substandard clinical care as evidenced by:

         1. (i) excessive or deficient care;
         2. (ii) an excessive complication rate such as having to repeat surgeries or treat post-operative infections in excess of relevant benchmarks;
         3. (iii) practicing beyond the doctor's scope of licensure or certification; or
         4. (iv) having three or more final adverse malpractice judgments against the doctor during the doctor's career;
      3. (C) having an uncorrected pattern of practice of failing to timely and appropriately release employees to return to work as compared to relevant benchmarks or based upon the work release guidelines adopted by the commission;
      4. (D) being excluded or removed from participation in other health plans for cause;
      5. (E) losing hospital privileges for cause;
      6. (F) abusing drugs, alcohol, or other substances;
      7. (G) having a medical or other condition that impacts the doctor's judgment or ability to safely practice medicine;
      8. (H) willfully over-prescribing potentially dangerous medications such as narcotics or doing so as a pattern of practice;

   4. (4) having a significant (uncorrected or willful) pattern of practice relating to the delivery or evaluation of health care that the commission finds is not fair and reasonable or that the commission determines does not meet professionally recognized standards of health care including, but not limited to:

      1. (A) having unjustifiable differences between the doctor's diagnoses or treatments and acceptable standards of care;
      2. (B) having unjustifiable differences between the doctor's billing practices and the commission's Rules or Fee Guidelines such as by submitting medical bills that demonstrate a pattern of practice of inappropriate coding or which is abusive or violates Rules and Guidelines, including but not limited to, such practices as upcoding and unbundling as defined in §133.1 (relating to Definitions for chapter 133) and that, if relied upon by the carrier, has the potential of unlawfully increasing the doctor's reimbursement;
      3. (C) administering improper, unreasonable, or medically unnecessary health care and/or seeking approval for same;
      4. (D) failing to fulfill responsibilities set out in §180.22 of this title (relating to Health Care Provider Roles and Responsibilities);
      5. (E) submitting medical bills that demonstrate a pattern of practice of coding or billing for noncompensable injuries, conditions, or body areas;
      6. (F) improperly or unjustifiably denying requests for preauthorization or concurrent review or issuing peer review or utilization review opinions improperly or unjustifiably denying payment for reasonable and necessary health care (as evidenced by denial rates significantly higher than relevant benchmarks);
      7. (G) certifying maximum medical improvement (MMI) and/or assigning impairment ratings in violation of the Statute and Rules, including, but not limited to, not complying with the applicable AMA Guides when assigning an impairment rating;
      8. (H) making improper or unjustifiable recommendations regarding the reasonableness and medical necessity of care provided or proposed to be provided to an employee;
      9. (I) making unnecessary referrals;

   5. (5) dishonest conduct including but not limited to:

      1. (A) submitting a false statement or misrepresentation, or omitting pertinent facts when claiming payment under the Texas Workers' Compensation Act or when supplying information used to determine the right to payment under the Texas Workers' Compensation Act;
      2. (B) submitting a false statement, incorrect information, or misrepresentation, or omitting pertinent facts that, if relied upon by the carrier, has the potential of unlawfully increasing the doctor's reimbursement;
      3. (C) submitting a false statement, incorrect information, or misrepresentation, or omitting pertinent facts that, if relied upon by the insurance carrier, has the potential to result in approval of requests for health care that is not reasonable and necessary or the denial of health care that is reasonable and necessary;

      4. (D) submitting a false statement or misrepresentation or omitting pertinent facts to the commission that could affect the commission's decision to:

         1. (i) include the doctor on the ADL (per §180.20 of this title);
         2. (ii) certify the doctor for a specific certification level (per §180.23 of this title (relating to commission Approved Training for Doctors /Certification Levels)); or
         3. (iii) otherwise allow the doctor to provide health care in the Texas workers' compensation system;
      5. (E) practicing without credentials or practicing with falsified credentials;
   6. (6) refusing to refund monies improperly paid to the doctor in compliance with an order; or
   7. (7) other activities that warrant deletion.

4. (d) The Medical Advisor may recommend a sanction against a doctor or a carrier or the deletion or suspension of a doctor from the ADL if any of the following occurs:

   1. (1) violation of the Statute, Rules, or a commission decision or order or agreement;
   2. (2) violation of other statutes or regulations not administered by the commission but relevant to the provision of and payments for health care;
   3. (3) conduct relating to the delivery, evaluation, or remuneration of health care that the commission finds is not fair and reasonable or that the commission determines does not meet professionally recognized standards of health care;
   4. (4) refusing to pay monies owed under the Statute or Rules to a health care provider for reasonable and necessary health care related to the compensable injury; or
   5. (5) other activities that warrant sanction.

5. (e) A carrier or doctor (sanctionee) may enter into a progressive disciplinary agreement with the commission if the commission believes such an agreement will achieve the goals of improving medical quality and cost containment in the Texas workers' compensation system. An agreement reached under this section may be entered into before or after formal notification under §180.27 of this title (relating to Sanctions Process/Appeals/Restoration/Reinstatement) and:

   1. (1) may include any sanction(s) authorized by the Statute and Rules or agreed to by the commission and the sanctionee;
   2. (2) shall include a description of the action(s)/behavior(s) which was the grounds for the sanction(s) and not include language in which the sanctionee denies the grounds,
   3. (3) shall describe: what sanction(s) was agreed upon, the duration of the agreement, the specific goal(s) of the agreement, the way that progress towards the goal(s) shall be measured, and the consequences of failing to meet the goals or breaking the agreement; and

   4. (4) shall provide that the sanctionee shall pay the commission for costs associated with:

      1. (A) the review that resulted in the sanction; and
      2. (B) monitoring compliance with the agreement and the progress towards the goal(s) of the agreement.

6. (f) The evidence the commission may consider to establish the grounds for the recommendation or imposition of a sanction of a carrier or doctor or the suspension or the deletion of a doctor from the ADL or designated doctor list (DDL) include, but are not limited to:

   1. (1) the findings of fact and legal conclusions made by a federal, state, or local court, an administrative law judge, an Independent Review Organization (whether considering a Texas workers' compensation matter or a matter from another health care system), or appropriate licensing, certification, or regulatory authority on a matter in which the doctor or carrier was, or had the opportunity to be, a party;
   2. (2) a plea of guilty or nolo contendere (no contest) by the carrier or doctor that has been accepted by a federal, state, or local court, an administrative law judge, an Independent Review Organization (whether considering a Texas workers' compensation matter or matter from another health care system), or appropriate licensing, certification, or regulatory authority;
   3. (3) the findings of experts working for or with the commission to evaluate a doctor or carrier (this includes, but is not limited to, members of the Medical Quality Review Panel or an Independent Review Organization);
   4. (4) the stipulations of an agreement entered into by the carrier or doctor whom the commission is sanctioning (even if the agreement is not with the commission); or

   5. (5) information or documentation from:

      1. (A) the commission's records;
      2. (B) the records of an appropriate licensing or certification authority;
      3. (C) the records of another regulatory or law enforcement authority; or
      4. (D) the records of a system participant or the general public.
7. (g) The existence of a finding, conclusion, plea, or stipulation under subsections (f)(1), (2), or (4) of this section that establishes the existence of grounds for sanction, deletion, or suspension under this section is conclusive evidence until and unless the finding, conclusion, plea, or stipulation is subsequently overturned.

8. (h) The sanctions that the commission may recommend or impose against a doctor or carrier under this section include, but are not limited to:

   1. (1) reduction of allowable reimbursement to a doctor (such as an automatic percentage reduction on all or some types of health care);
   2. (2) mandatory preauthorization or utilization review of all or certain health care treatments and services (such as mandatory treatment plans);
   3. (3) required supervision or peer review monitoring, reporting, and audit (by the carrier, the commission, or an independent auditor/reviewer);
   4. (4) deletion or suspension from the ADL and/or DDL;
   5. (5) restrictions on appointment (such as reducing the roles the doctor is allowed to play in a claim or reducing the number of workers' compensation claimants the doctor will be allowed to treat except in an emergency);
   6. (6) conditions or restrictions on a carrier regarding actions by carriers under the Statute and Rules in accordance with a memorandum of understanding adopted between the commission and the Texas Department of Insurance regarding Article 21.58A, Insurance Code; and
   7. (7) mandatory participation in training classes or other courses as established or certified by the commission.
9. (i) A doctor who has been deleted or suspended from the ADL shall not directly or indirectly provide services under the Statute or Rules (other than emergency or immediate post-injury medical care) or receive direct or indirect remuneration under the Statute or Rules while suspended or deleted and shall, within seven days of deletion or suspension, notify all employees the doctor is treating that they must receive health care from a different doctor.

Source Note:The provisions of this §180.26 adopted to be effective March 14, 2002, 27 TexReg 1817.