76R11861 CMR-F
By Brimer H.B. No. 2545
Substitute the following for H.B. No. 2545:
By Brimer C.S.H.B. No. 2545
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to workers' compensation medical benefits, claims
1-3 regarding those benefits, and requirements imposed on health care
1-4 providers who provide services relating to those benefits.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 408.022, Labor Code, is amended by
1-7 amending Subsection (b) and adding Subsection (f) to read as
1-8 follows:
1-9 (b) If an employee is dissatisfied with the employee's
1-10 initial choice of a doctor from the commission's list, on written
1-11 application to and approval by [the employee may notify] the
1-12 commission, the employee may [and request authority to] select a
1-13 second treating [an alternate] doctor. The employee's application
1-14 for a second treating doctor must be made for a good cause, as
1-15 provided by this section and rules adopted by the commission, and
1-16 the application may not be made to secure a new impairment rating
1-17 or medical report. Evidence that the initial treating doctor has
1-18 certified that the employee has reached maximum medical improvement
1-19 or has cleared the employee to return to work creates a presumption
1-20 that the employee's application for a second treating doctor is not
1-21 made for a good cause. A third or subsequent change of treating
1-22 doctor may be granted by the commission only in exceptional
1-23 circumstances unless the doctor is agreed upon by the employee and
1-24 the insurance carrier. The request for a change in treating doctors
2-1 [notification] must be in writing stating the reasons for the
2-2 change, except a request [notification] may be made by telephone
2-3 when a medical necessity exists for immediate change.
2-4 (f) An employer or an employer's designee may offer an
2-5 employee the option of selecting a doctor from a list developed by
2-6 the employer or the employer's designee for treatment of a
2-7 work-related compensable injury. An employer or an employer's
2-8 designee may offer an incentive to an employee to choose a medical
2-9 provider from the identified list. The employer shall notify the
2-10 employee in writing of the right to select a doctor at the time the
2-11 employer notifies the employee of the provisions of this
2-12 subsection.
2-13 SECTION 2. Section 408.023, Labor Code, is amended to read
2-14 as follows:
2-15 Sec. 408.023. LIST OF APPROVED DOCTORS. (a) Each doctor
2-16 licensed in this state on January 1, 1993, is on the commission's
2-17 list of approved doctors unless subsequently deleted and not
2-18 reinstated. The name of a doctor shall be placed on the list of
2-19 approved doctors when that doctor becomes licensed in this state.
2-20 A doctor not licensed in this state but licensed in another state
2-21 or jurisdiction who treats employees may apply to the commission to
2-22 be included on the list.
2-23 (b) Each doctor performing functions under this subtitle,
2-24 including required medical examinations under Section 408.004 and
2-25 medical utilization review evaluations for insurance carriers, must
2-26 be on the list of approved doctors to perform services under this
2-27 subtitle or to receive payment for services.
3-1 (c) The commission may grant exceptions to the requirement
3-2 imposed under Subsection (b) as necessary to ensure that employees
3-3 have access to medical care. The commission may allow an
3-4 out-of-state doctor to perform utilization review services on
3-5 behalf of an insurance carrier if the doctor or insurance carrier
3-6 agrees to make the doctor available for civil or administrative
3-7 proceedings as if the doctor were a resident of this state.
3-8 (d) Before January 1, 2000, the commission shall complete an
3-9 inventory of doctors on the list of approved doctors and identify
3-10 doctors who elect to remain on the list. The commission shall
3-11 allow a doctor in good standing to reapply to be on the list. The
3-12 commission shall make available to doctors on the list information
3-13 relating to reimbursement for services, required medical
3-14 utilization monitoring, and required education and training
3-15 necessary to conduct certain medical services under this subtitle.
3-16 The commission shall update the list of approved doctors as
3-17 necessary.
3-18 (e) The commission shall establish criteria for deleting a
3-19 doctor from the list of approved doctors and for imposing sanctions
3-20 on a doctor as provided by this section as a condition of continued
3-21 approved doctor practice privileges. The criteria may include
3-22 anything the commission considers relevant, including:
3-23 (1) a sanction [sanctions] of the doctor by the
3-24 commission for a violation [violations] of Chapter 413 or Chapter
3-25 415;
3-26 (2) a sanction [sanctions] by the Medicare or Medicaid
3-27 program for:
4-1 (A) substandard medical care;
4-2 (B) overcharging; [or]
4-3 (C) overutilization of medical services; or
4-4 (D) any other noncompliance with that program in
4-5 professional practice or billing;
4-6 (3) evidence from the commission's medical records
4-7 that the doctor's charges, fees, diagnoses, [or] treatments,
4-8 evaluations, or impairment ratings are unjustifiably
4-9 [substantially] different from those the commission finds to be
4-10 fair and reasonable; [and]
4-11 (4) suspension of the doctor's license by an [the]
4-12 appropriate licensing authority;
4-13 (5) professional failure to practice medicine in an
4-14 acceptable manner consistent with the public health and welfare;
4-15 (6) an administrative or criminal conviction;
4-16 (7) referrals made in violation of Section 413.041;
4-17 and
4-18 (8) other relevant factors as identified by the
4-19 executive director in consultation with the medical quality review
4-20 panel as provided by Section 413.013.
4-21 (f) Notwithstanding Section 402.072, the executive director
4-22 of the commission shall delete a doctor from the approved doctor
4-23 list if the doctor is deceased, retired from practice, requested
4-24 deletion, or is no longer allowed to practice because of suspension
4-25 or revocation of the doctor's license.
4-26 (g) Notwithstanding Section 402.072, the executive director
4-27 may, on a recommendation by the medical quality review panel
5-1 provided by Section 413.013 and after notice and the opportunity
5-2 for a hearing, impose sanctions on a health care provider or an
5-3 insurance carrier utilization review agent under this section. The
5-4 sanctions the executive director may impose on a health care
5-5 provider or on an insurance carrier include:
5-6 (1) reduction of the health care provider's allowable
5-7 reimbursement;
5-8 (2) required peer review monitoring and audits of the
5-9 health care provider's practice or the utilization review agent's
5-10 decisions;
5-11 (3) mandatory preauthorization of all or certain
5-12 medical services;
5-13 (4) temporary suspension or deletion from the approved
5-14 doctor list or the designated doctor list, or restrictions on
5-15 appointment as a required medical examination doctor under Section
5-16 408.004; and
5-17 (5) other reasonable restrictions or requirements,
5-18 including the cost of monitoring as considered necessary to protect
5-19 the public from the offending conduct.
5-20 (h) The required monitoring imposed under Subsection (g)
5-21 must be reasonably related to the severity of the conduct and may
5-22 not be punitive in nature.
5-23 (i) The findings of fact and conclusions of law of a court,
5-24 the State Office of Administrative Hearings, or a licensing or
5-25 regulatory authority may be used as the basis for action under this
5-26 section. [(c)] The commission shall by rule establish procedures
5-27 under which [for] a doctor may [to] apply for reinstatement to the
6-1 list or for restoration of privileges removed based on sanctions.
6-2 (j) The commission action under this section is binding
6-3 during any appeal of an act by the commission, the State Office of
6-4 Administrative Hearings, a court, or a licensing or regulatory
6-5 authority.
6-6 SECTION 3. Section 408.027, Labor Code, is amended by
6-7 amending Subsections (a) and (b) to read as follows:
6-8 (a) An insurance carrier shall pay the fee charged for a
6-9 service rendered by a health care provider not later than the 30th
6-10 [45th] day after the date the insurance carrier receives the charge
6-11 unless the amount of the payment or the entitlement to payment is
6-12 disputed.
6-13 (b) If an insurance carrier disputes the amount charged by a
6-14 health care provider and requests an audit of the services
6-15 rendered, the insurance carrier shall pay 50 percent of the lesser
6-16 of the allowed fee or the fee charged [amount charged by the health
6-17 care provider] not later than the 30th [45th] day after the date
6-18 the insurance carrier receives the statement of charge.
6-19 SECTION 4. Section 413.012, Labor Code, is amended to read
6-20 as follows:
6-21 Sec. 413.012. MEDICAL POLICY AND GUIDELINE UPDATES REQUIRED.
6-22 (a) The medical policies and fee guidelines shall be reviewed and
6-23 revised at least every two years to reflect fair and reasonable
6-24 fees and to reflect medical treatment or ranges of treatment that
6-25 are reasonable or necessary at the time the review and revision is
6-26 conducted.
6-27 (b) If the medical policies and fee guidelines are not
7-1 reviewed within the period prescribed by Subsection (a), the fees
7-2 provided in the guideline shall be increased by three percent each
7-3 year until the medical policy or fee guideline is revised,
7-4 readopted, or repealed.
7-5 SECTION 5. Section 413.013, Labor Code, is amended to read
7-6 as follows:
7-7 Sec. 413.013. COMMISSION MEDICAL QUALITY REVIEWS REQUIRED;
7-8 PANELISTS; ACTIVITIES; IMMUNITY FOR GOOD FAITH ACTIONS [PROGRAMS].
7-9 (a) The commission, with advice from the Research and Oversight
7-10 Council on Workers' Compensation, shall appoint a seven-member
7-11 medical quality review panel, independent of the medical advisory
7-12 committee created under Section 413.005, to assist in or direct the
7-13 review of treatment, evaluation, utilization review practices, and
7-14 regulation of medical service providers and reviewers under this
7-15 subtitle.
7-16 (b) The medical quality review panel consists of:
7-17 (1) three doctors representing the medical community,
7-18 including two physicians and one doctor of chiropractic;
7-19 (2) three doctors representing the insurance or
7-20 employer community who are experienced in medical utilization or
7-21 medical finance; and
7-22 (3) a nonvoting attorney representative to advise the
7-23 panel.
7-24 (c) The medical advisor to the commission may cast the
7-25 deciding vote in the event of a tie among the members of the
7-26 medical quality review panel.
7-27 (d) Each doctor member of the medical quality review panel
8-1 must possess recognized experience in treatment of patients and as
8-2 a peer reviewer of medical services.
8-3 (e) The medical quality review panel may consult with other
8-4 specialty providers as necessary to support reviews of medical
8-5 issues.
8-6 (f) The commission shall contract with persons with
8-7 recognized expertise for clinical reviews, medical practice
8-8 outcomes, and research analysis to accomplish the requirements of
8-9 this section.
8-10 (g) The commission, in consultation with the medical quality
8-11 review panel, may employ reasonable sampling techniques to
8-12 accomplish practice pattern identification and monitoring functions
8-13 required under this subtitle.
8-14 (h) The commission may use the following measurement factors
8-15 for the identification and monitoring of medical treatment,
8-16 required medical examinations, designated doctor opinions, and
8-17 insurance carrier utilization review services:
8-18 (1) the number, total cost, and duration of treatments
8-19 or services, recommended or provided, per employee treated;
8-20 (2) the elapsed time between:
8-21 (A) the date of first medical treatment and the
8-22 certification of maximum medical improvement; or
8-23 (B) the date of first medical treatment and the
8-24 date the employee is released to modified or full duty work;
8-25 (3) the number of recommended medical services denied
8-26 or disputed by the insurance carrier;
8-27 (4) the variation between the doctor's findings on
9-1 maximum medical improvement and the final impairment rating
9-2 compared to the final or adopted determinations; and
9-3 (5) other significant medical practice or satisfaction
9-4 outcome measures as identified by the commission.
9-5 (i) The medical quality review panel shall review and
9-6 recommend to the executive director appropriate action to add,
9-7 restrict, or remove doctors from the list of approved doctors and
9-8 the list of designated doctors. The panel may also review and
9-9 investigate complaints and recommend to the executive director
9-10 appropriate regulatory action for health care providers. The
9-11 medical quality review panel shall consult with the person under
9-12 review regarding the review findings, and the person reviewed may
9-13 provide a written response for inclusion in the findings of the
9-14 commission. The medical quality review panel may also identify and
9-15 recommend that certain health care providers with acceptable
9-16 practice patterns and self-monitoring mechanisms be granted waivers
9-17 of certain utilization review controls that apply to health care
9-18 providers generally under commission treatment guidelines and rules
9-19 including preauthorization, documentation of procedure filing
9-20 requirements, or similar regulatory requirements.
9-21 (j) The commission shall report to the legislature by
9-22 February 1 and August 31 of each year, describing the activity of
9-23 the medical quality review panel. The report must include:
9-24 (1) aggregate information concerning the number of
9-25 medical quality reviews initiated by the panel;
9-26 (2) a description of the reviews undertaken;
9-27 (3) the findings of the reviews completed;
10-1 (4) the regulatory restrictions or actions pending and
10-2 completed on those reviews;
10-3 (5) the names of those persons who have had their
10-4 privileges to participate in the workers' compensation system
10-5 restricted or suspended;
10-6 (6) the names of those persons who have been granted
10-7 waivers of the regulatory requirements that are applicable to
10-8 providers generally; and
10-9 (7) the cost of the reviews completed.
10-10 (k) The commission shall also provide timely notices to the
10-11 regulated community regarding changes in health care provider
10-12 status.
10-13 (l) Any person, including an employer, insurance carrier,
10-14 health care provider, employee, or an association, who has
10-15 knowledge and evidence of a pattern of prohibited or inappropriate
10-16 medical or utilization review conduct under this subtitle may
10-17 petition the commission for a review under this section.
10-18 (m) If supported by prima facie evidence of grounds for
10-19 removal or restriction of a doctor, a person may petition the
10-20 commission for permission to bring a direct or joint action to
10-21 remove a doctor from the approved doctor list in the manner
10-22 provided for a contested case under Chapter 2001, Government Code,
10-23 and Section 402.073.
10-24 (n) A person acting in good faith and without gross
10-25 negligence who files a complaint or petitions for an administrative
10-26 action under this subtitle to either remove a doctor from the list
10-27 of approved doctors or to impose restrictions on practices, or who
11-1 cooperates with the commission in a review of medical treatments or
11-2 services, is immune from any civil or criminal liability that might
11-3 otherwise be imposed.
11-4 (o) Notwithstanding confidentiality provisions under this
11-5 subtitle or other law, the commission may disclose confidential
11-6 information to appropriate licensing or regulatory authorities and
11-7 appropriate enforcement authorities. The information remains
11-8 confidential by law, and the receiving agency may not disclose the
11-9 information.
11-10 (p) The commission and appropriate licensing or regulatory
11-11 authorities, as identified by the commission, shall adopt
11-12 interagency investigative information and confidentiality
11-13 agreements to ensure adequate coordination of investigative and
11-14 disciplinary actions regarding health care providers and
11-15 confidentiality of information that is confidential by law.
11-16 (q) Confidential information may not be further disclosed
11-17 except:
11-18 (1) in a criminal proceeding;
11-19 (2) in a hearing conducted by or on behalf of the
11-20 commission;
11-21 (3) in a hearing conducted by another licensing or
11-22 regulatory authority, as provided in the interagency agreement; or
11-23 (4) on a finding of good cause in an administrative or
11-24 judicial proceeding involving the enforcement of this subtitle or
11-25 in a disciplinary action under this subtitle.
11-26 (r) Confidential information developed by the commission is
11-27 not subject to discovery or court subpoena in any other action
12-1 other than to enforce the provisions of this subtitle by the
12-2 commission, the appropriate licensing or regulatory agency, or the
12-3 appropriate enforcement authority, or in a criminal proceeding.
12-4 (s) An action by the commission under this section does not
12-5 constitute utilization review and is not subject to Article 21.58A,
12-6 Insurance Code. [The commission by rule shall establish:]
12-7 [(1) a program for prospective, concurrent, and
12-8 retrospective review and resolution of a dispute regarding health
12-9 care treatments and services;]
12-10 [(2) a program for the systematic monitoring of the
12-11 necessity of treatments administered and fees charged and paid for
12-12 medical treatments or services, including the authorization of
12-13 prospective, concurrent, or retrospective review under the medical
12-14 policies of the commission to ensure that the medical policies or
12-15 guidelines are not exceeded;]
12-16 [(3) a program to detect practices and patterns by
12-17 insurance carriers in unreasonably denying authorization of payment
12-18 for medical services requested or performed if authorization is
12-19 required by the medical policies of the commission; and]
12-20 [(4) a program to increase the intensity of review for
12-21 compliance with the medical policies or fee guidelines for any
12-22 health care provider that has established a practice or pattern in
12-23 charges and treatments inconsistent with the medical policies and
12-24 fee guidelines.]
12-25 SECTION 6. Section 413.019, Labor Code, is amended to read
12-26 as follows:
12-27 Sec. 413.019. INTEREST EARNED FOR DELAYED PAYMENT, REFUND,
13-1 OR OVERPAYMENT. (a) Interest on an unpaid fee or charge that is
13-2 consistent with the fee guidelines accrues at the rate provided by
13-3 Section 401.023 beginning on the 31st [60th] day after the date the
13-4 health care provider submits the bill to an insurance carrier until
13-5 the date the bill is paid.
13-6 (b) Interest on a refund from a health care provider accrues
13-7 at the rate provided by Section 401.023 beginning on the 31st
13-8 [60th] day after the date the provider receives notice of alleged
13-9 overpayment from the insurance carrier until the date the refund is
13-10 paid.
13-11 SECTION 7. Section 413.042(a), Labor Code, is amended to
13-12 read as follows:
13-13 (a) A health care provider or any other person may not
13-14 pursue a private claim against a workers' compensation claimant for
13-15 all or part of the cost of a health care service provided to the
13-16 claimant by the provider unless:
13-17 (1) the injury is finally adjudicated not compensable
13-18 under this subtitle; or
13-19 (2) the employee violates Section 408.022 relating to
13-20 the selection of a doctor and the doctor did not know of the
13-21 violation at the time the services were rendered.
13-22 SECTION 8. (a) This Act takes effect September 1, 1999, and
13-23 applies only to a claim for workers' compensation medical benefits
13-24 filed on or after that date. A claim that is filed before the
13-25 effective date of this Act is governed by the law in effect on the
13-26 date that the claim was filed, and the former law is continued in
13-27 effect for that purpose.
14-1 (b) The change in law made by this Act to Section 408.023,
14-2 Labor Code, applies only to an action by the commission related to
14-3 a service provided or a violation that occurs on or after the
14-4 effective date of this Act. A service provided or a violation that
14-5 occurs before the effective date of this Act is governed by the law
14-6 in effect on the date that the service was provided or the
14-7 violation occurred, and the former law is continued in effect for
14-8 that purpose.
14-9 (c) The change in law made by this Act to Sections 408.027
14-10 and 413.019, Labor Code, applies only to payment for services
14-11 provided to an injured worker by a health care provider based on a
14-12 charge that is submitted to an insurance carrier for payment on or
14-13 after the effective date of this Act. A charge submitted before
14-14 that date is governed by the law in effect on the date that the
14-15 charge was submitted, and the former law is continued in effect for
14-16 that purpose.
14-17 SECTION 9. The importance of this legislation and the
14-18 crowded condition of the calendars in both houses create an
14-19 emergency and an imperative public necessity that the
14-20 constitutional rule requiring bills to be read on three several
14-21 days in each house be suspended, and this rule is hereby suspended.