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A BILL TO BE ENTITLED
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AN ACT
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relating to retrospective utilization review and utilization |
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review to determine the experimental or investigational nature of a |
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health care service. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Sections 1305.004(a)(1), (10), and (23), |
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Insurance Code, are amended to read as follows: |
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(1) "Adverse determination" has the meaning assigned |
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by Chapter 4201 [means a determination, made through utilization
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review or retrospective review, that the health care services
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furnished or proposed to be furnished to an employee are not
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medically necessary or appropriate]. |
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(10) "Independent review" means a system for final |
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administrative review by an independent review organization of the |
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medical necessity and appropriateness, or the experimental or |
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investigational nature, of health care services being provided, |
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proposed to be provided, or that have been provided to an employee. |
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(23) "Screening criteria" means the written policies, |
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medical protocols, and treatment guidelines used by an insurance |
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carrier or a network as part of utilization review [or
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retrospective review]. |
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SECTION 2. Section 1305.053, Insurance Code, is amended to |
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read as follows: |
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Sec. 1305.053. CONTENTS OF APPLICATION. Each certificate |
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application must include: |
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(1) a description or a copy of the applicant's basic |
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organizational structure documents and other related documents, |
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including organizational charts or lists that show: |
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(A) the relationships and contracts between the |
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applicant and any affiliates of the applicant; and |
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(B) the internal organizational structure of the |
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applicant's management and administrative staff; |
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(2) biographical information regarding each person |
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who governs or manages the affairs of the applicant, accompanied by |
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information sufficient to allow the commissioner to determine the |
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competence, fitness, and reputation of each officer or director of |
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the applicant or other person having control of the applicant; |
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(3) a copy of the form of any contract between the |
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applicant and any provider or group of providers, and with any third |
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party performing services on behalf of the applicant under |
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Subchapter D; |
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(4) a copy of the form of each contract with an |
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insurance carrier, as described by Section 1305.154; |
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(5) a financial statement, current as of the date of |
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the application, that is prepared using generally accepted |
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accounting practices and includes: |
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(A) a balance sheet that reflects a solvent |
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financial position; |
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(B) an income statement; |
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(C) a cash flow statement; and |
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(D) the sources and uses of all funds; |
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(6) a statement acknowledging that lawful process in a |
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legal action or proceeding against the network on a cause of action |
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arising in this state is valid if served in the manner provided by |
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Chapter 804 for a domestic company; |
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(7) a description and a map of the applicant's service |
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area or areas, with key and scale, that identifies each county or |
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part of a county to be served; |
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(8) a description of programs and procedures to be |
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utilized, including: |
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(A) a complaint system, as required under |
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Subchapter I; |
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(B) a quality improvement program, as required |
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under Subchapter G; and |
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(C) the utilization review program [and
|
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retrospective review programs] described in Subchapter H; |
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(9) a list of all contracted network providers that |
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demonstrates the adequacy of the network to provide comprehensive |
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health care services sufficient to serve the population of injured |
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employees within the service area and maps that demonstrate that |
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the access and availability standards under Subchapter G are met; |
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and |
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(10) any other information that the commissioner |
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requires by rule to implement this chapter. |
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SECTION 3. Section 1305.154(c), Insurance Code, is amended |
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to read as follows: |
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(c) A network's contract with a carrier must include: |
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(1) a description of the functions that the carrier |
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delegates to the network, consistent with the requirements of |
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Subsection (b), and the reporting requirements for each function; |
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(2) a statement that the network and any management |
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contractor or third party to which the network delegates a function |
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will perform all delegated functions in full compliance with all |
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requirements of this chapter, the Texas Workers' Compensation Act, |
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and rules of the commissioner or the commissioner of workers' |
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compensation; |
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(3) a provision that the contract: |
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(A) may not be terminated without cause by either |
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party without 90 days' prior written notice; and |
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(B) must be terminated immediately if cause |
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exists; |
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(4) a hold-harmless provision stating that the |
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network, a management contractor, a third party to which the |
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network delegates a function, and the network's contracted |
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providers are prohibited from billing or attempting to collect any |
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amounts from employees for health care services under any |
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circumstances, including the insolvency of the carrier or the |
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network, except as provided by Section 1305.451(b)(6); |
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(5) a statement that the carrier retains ultimate |
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responsibility for ensuring that all delegated functions and all |
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management contractor functions are performed in accordance with |
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applicable statutes and rules and that the contract may not be |
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construed to limit in any way the carrier's responsibility, |
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including financial responsibility, to comply with all statutory |
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and regulatory requirements; |
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(6) a statement that the network's role is to provide |
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the services described under Subsection (b) as well as any other |
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services or functions delegated by the carrier, including functions |
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delegated to a management contractor, subject to the carrier's |
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oversight and monitoring of the network's performance; |
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(7) a requirement that the network provide the |
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carrier, at least monthly and in a form usable for audit purposes, |
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the data necessary for the carrier to comply with reporting |
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requirements of the department and the division of workers' |
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compensation with respect to any services provided under the |
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contract, as determined by commissioner rules; |
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(8) a requirement that the carrier, the network, any |
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management contractor, and any third party to which the network |
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delegates a function comply with the data reporting requirements of |
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the Texas Workers' Compensation Act and rules of the commissioner |
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of workers' compensation; |
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(9) a contingency plan under which the carrier would, |
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in the event of termination of the contract or a failure to perform, |
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reassume one or more functions of the network under the contract, |
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including functions related to: |
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(A) payments to providers and notification to |
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employees; |
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(B) quality of care; |
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(C) utilization review; |
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[(D) retrospective review;] and |
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(D) [(E)] continuity of care, including a plan |
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for identifying and transitioning employees to new providers; |
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(10) a provision that requires that any agreement by |
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which the network delegates any function to a management contractor |
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or any third party be in writing, and that such an agreement require |
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the delegated third party or management contractor to be subject to |
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all the requirements of this subchapter; |
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(11) a provision that requires the network to provide |
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to the department the license number of a management contractor or |
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any delegated third party who performs a function that requires a |
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license as a utilization review agent under Chapter 4201 or any |
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other license under this code or another insurance law of this |
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state; |
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(12) an acknowledgment that: |
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(A) any management contractor or third party to |
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whom the network delegates a function must perform in compliance |
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with this chapter and other applicable statutes and rules, and that |
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the management contractor or third party is subject to the |
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carrier's and the network's oversight and monitoring of its |
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performance; and |
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(B) if the management contractor or the third |
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party fails to meet monitoring standards established to ensure that |
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functions delegated to the management contractor or the third party |
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under the delegation contract are in full compliance with all |
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statutory and regulatory requirements, the carrier or the network |
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may cancel the delegation of one or more delegated functions; |
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(13) a requirement that the network and any management |
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contractor or third party to which the network delegates a function |
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provide all necessary information to allow the carrier to provide |
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information to employees as required by Section 1305.451; and |
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(14) a provision that requires the network, in |
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contracting with a third party directly or through another third |
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party, to require the third party to permit the commissioner to |
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examine at any time any information the commissioner believes is |
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relevant to the third party's financial condition or the ability of |
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the network to meet the network's responsibilities in connection |
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with any function the third party performs or has been delegated. |
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SECTION 4. The heading to Subchapter H, Chapter 1305, |
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Insurance Code, is amended to read as follows: |
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SUBCHAPTER H. UTILIZATION REVIEW[; RETROSPECTIVE REVIEW] |
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SECTION 5. Section 1305.351, Insurance Code, is amended to |
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read as follows: |
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Sec. 1305.351. UTILIZATION REVIEW [AND RETROSPECTIVE
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REVIEW] IN NETWORK. (a) The requirements of Chapter 4201 apply to |
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utilization review conducted in relation to claims in a workers' |
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compensation health care network. In the event of a conflict |
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between Chapter 4201 and this chapter, this chapter controls. |
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(b) Any screening criteria used for utilization review [or
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retrospective review] related to a workers' compensation health |
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care network must be consistent with the network's treatment |
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guidelines. |
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(c) The preauthorization requirements of Section 413.014, |
|
Labor Code, and commissioner of workers' compensation rules adopted |
|
under that section, do not apply to health care provided through a |
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workers' compensation network. If a network or carrier uses a |
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preauthorization process within a network, the requirements of this |
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subchapter and commissioner rules apply. A network or an insurance |
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carrier may not require preauthorization of treatments and services |
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for a medical emergency. |
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(d) Notwithstanding Section 4201.152, a utilization review |
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agent or an insurance carrier that uses doctors to perform reviews |
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of health care services provided under this chapter, including |
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utilization review [and retrospective review], or peer reviews |
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under Section 408.0231(g), Labor Code, may only use doctors |
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licensed to practice in this state. |
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SECTION 6. Section 1305.353(a), Insurance Code, is amended |
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to read as follows: |
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(a) The entity performing utilization review [or
|
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retrospective review] shall notify the employee or the employee's |
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representative, if any, and the requesting provider of a |
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determination made in a utilization review [or retrospective
|
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review]. |
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SECTION 7. Sections 4201.002(1) and (13), Insurance Code, |
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are amended to read as follows: |
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(1) "Adverse determination" means a determination by a |
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utilization review agent that health care services provided or |
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proposed to be provided to a patient are not medically necessary or |
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are experimental or investigational. |
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(13) "Utilization review" includes [means] a system |
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for prospective, [or] concurrent, or retrospective review of the |
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medical necessity and appropriateness of health care services and |
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a system for prospective, concurrent, or retrospective review to |
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determine the experimental or investigational nature of health care |
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services [being provided or proposed to be provided to an
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individual in this state]. The term does not include a review in |
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response to an elective request for clarification of coverage. |
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SECTION 8. Section 4201.051, Insurance Code, is amended to |
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read as follows: |
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Sec. 4201.051. PERSONS PROVIDING INFORMATION ABOUT SCOPE OF |
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COVERAGE OR BENEFITS. This chapter does not apply to a person who: |
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(1) provides information to an enrollee about scope of |
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coverage or benefits provided under a health insurance policy or |
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health benefit plan; and |
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(2) does not determine whether a particular health |
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care service provided or to be provided to an enrollee is: |
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(A) medically necessary or appropriate; or |
|
(B) experimental or investigational. |
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SECTION 9. Section 4201.206, Insurance Code, is amended to |
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read as follows: |
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Sec. 4201.206. OPPORTUNITY TO DISCUSS TREATMENT BEFORE |
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ADVERSE DETERMINATION. Subject to the notice requirements of |
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Subchapter G, before an adverse determination is issued by a |
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utilization review agent who questions the medical necessity or |
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appropriateness, or the experimental or investigational nature, of |
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a health care service [issues an adverse determination], the agent |
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shall provide the health care provider who ordered the service a |
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reasonable opportunity to discuss with a physician the patient's |
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treatment plan and the clinical basis for the agent's |
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determination. |
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SECTION 10. Section 4201.401, Insurance Code, is amended by |
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adding Subsection (c) to read as follows: |
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(c) The utilization review agent shall comply with the |
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independent review organization's determination regarding the |
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experimental or investigational nature of health care items and |
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services for an enrollee. |
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SECTION 11. Section 4201.456, Insurance Code, is amended |
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to read as follows: |
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Sec. 4201.456. OPPORTUNITY TO DISCUSS TREATMENT BEFORE |
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ADVERSE DETERMINATION. Subject to the notice requirements of |
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Subchapter G, before an adverse determination is issued by a |
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specialty utilization review agent who questions the medical |
|
necessity or appropriateness, or the experimental or |
|
investigational nature, of a health care service [issues an adverse
|
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determination], the agent shall provide the health care provider |
|
who ordered the service a reasonable opportunity to discuss the |
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patient's treatment plan and the clinical basis for the agent's |
|
determination with a health care provider who is of the same |
|
specialty as the agent. |
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SECTION 12. Section 401.011(38-a), Labor Code, is amended |
|
to read as follows: |
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(38-a) "Retrospective review" means the utilization |
|
review process of reviewing the medical necessity and |
|
reasonableness of health care that has been provided to an injured |
|
employee [has the meaning assigned by Chapter 1305, Insurance
|
|
Code]. |
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SECTION 13. Section 408.0043(a), Labor Code, is amended to |
|
read as follows: |
|
(a) This section applies to a person, other than a |
|
chiropractor or a dentist, who performs health care services under |
|
this title as: |
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(1) a doctor performing peer review; |
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(2) a doctor performing a utilization review of a |
|
health care service provided to an injured employee[, including a
|
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retrospective review]; |
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(3) a doctor performing an independent review of a |
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health care service provided to an injured employee[, including a
|
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retrospective review]; |
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(4) a designated doctor; |
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(5) a doctor performing a required medical |
|
examination; or |
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(6) a doctor serving as a member of the medical quality |
|
review panel. |
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SECTION 14. Section 408.0044(a), Labor Code, is amended to |
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read as follows: |
|
(a) This section applies to a dentist who performs dental |
|
services under this title as: |
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(1) a doctor performing peer review of dental |
|
services; |
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(2) a doctor performing a utilization review of a |
|
dental service provided to an injured employee[, including a
|
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retrospective review]; |
|
(3) a doctor performing an independent review of a |
|
dental service provided to an injured employee[, including a
|
|
retrospective review]; or |
|
(4) a doctor performing a required dental examination. |
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SECTION 15. Section 408.0045(a), Labor Code, is amended to |
|
read as follows: |
|
(a) This section applies to a chiropractor who performs |
|
chiropractic services under this title as: |
|
(1) a doctor performing peer review of chiropractic |
|
services; |
|
(2) a doctor performing a utilization review of a |
|
chiropractic service provided to an injured employee[, including a
|
|
retrospective review]; |
|
(3) a doctor performing an independent review of a |
|
chiropractic service provided to an injured employee[, including a
|
|
retrospective review]; |
|
(4) a designated doctor providing chiropractic |
|
services; |
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(5) a doctor performing a required |
|
medical examination; or |
|
(6) a chiropractor serving as a member of the medical |
|
quality review panel. |
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SECTION 16. Section 408.023(h), Labor Code, is amended to |
|
read as follows: |
|
(h) Notwithstanding Section 4201.152, Insurance Code, a |
|
utilization review agent or an insurance carrier that uses doctors |
|
to perform reviews of health care services provided under this |
|
subtitle, including utilization review [and retrospective review], |
|
may only use doctors licensed to practice in this state. |
|
SECTION 17. Section 413.031(e-3), Labor Code, is amended to |
|
read as follows: |
|
(e-3) Notwithstanding Subsections (d) and (e) of this |
|
section or Chapters 4201 and 4202, Insurance Code, a doctor, other |
|
than a dentist or a chiropractor, who performs a utilization review |
|
or an independent review[, including a retrospective review,] of a |
|
health care service provided to an injured employee is subject to |
|
Section 408.0043. A dentist who performs a utilization review or |
|
an independent review[, including a retrospective review,] of a |
|
dental service provided to an injured employee is subject to |
|
Section 408.0044. A chiropractor who performs a utilization |
|
review or an independent review[, including a retrospective
|
|
review,] of a chiropractic service provided to an injured employee |
|
is subject to Section 408.0045. |
|
SECTION 18. The following laws are repealed: |
|
(1) Section 1305.004(a)(21), Insurance Code; |
|
(2) Section 1305.352, Insurance Code; and |
|
(3) Subchapter K, Chapter 4201, Insurance Code. |
|
SECTION 19. This Act applies only to a health benefit plan |
|
delivered, issued for delivery, or renewed on or after January 1, |
|
2010. A health benefit plan delivered, issued for delivery, or |
|
renewed before January 1, 2010, is governed by the law as it existed |
|
immediately before the effective date of this Act, and that law is |
|
continued in effect for that purpose. |
|
SECTION 20. The change in law made by this Act applies only |
|
to a claim for workers' compensation benefits based on a |
|
compensable injury that occurs on or after the effective date of |
|
this Act. A claim based on a compensable injury that occurs before |
|
that date is governed by the law in effect on the date the |
|
compensable injury occurred, and the former law is continued in |
|
effect for that purpose. |
|
SECTION 21. This Act takes effect September 1, 2009. |