HBA-DMD C.S.H.B. 2545 76(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 2545
By: Brimer
Business & Industry
4/16/1999
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Currently, the criteria used by the Texas Workers' Compensation Commission
(commission) when determining whether to approve or deny an injured
worker's request for a change of the treating doctor is ambiguous.  As a
result, the commission routinely allows the first change to be made without
detailed scrutiny even though a change of doctors is prohibited by the
Workers' Compensation Act if the change is used to circumvent the
prohibition against changing doctors for the purpose of securing a new
impairment rating or medical report.   

Currently, an insurance carrier is required to pay the fee for services
provided by a health care provider (provider) within 45 days after
receiving the charge, unless the insurance carrier disputes the charge, in
which case the insurance carrier is required to pay 50 percent of the fee
within 45 days after receiving the charge. The commission's fee guidelines
have not been reviewed since 1996, although the commission is required to
review the guidelines every two years.   

Also, providers are currently prohibited from pursuing a private claim
against a workers' compensation claimant for a health care service provided
to the claimant, but a collection agency is not prohibited from doing so.  

C.S.H.B. 2545 requires the commission to determine whether an independent
medical consultation would be beneficial when deciding whether changing an
employee's doctor is medically necessary and to notify the employee, within
10 days, of the commission's decision pertaining to the change of the
employee's doctor.  This bill requires the insurance carrier to pay the fee
which is charged for a service rendered no later than 31 days after
receiving the charge, unless the amount is disputed, in which case the
insurance carrier is required to pay 50 percent of the amount within 31
days.  It prohibits a provider or any other person from pursuing a private
claim against a workers' compensation claimant for the cost of a health
care service provided to the claimant, with exceptions. 
This bill also establishes a medical quality review panel to assist in or
direct the review of treatment, evaluation, utilization to review
practices, and regulation of medical service providers and reviewers.  

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the Texas Workers' Compensation
Commission in SECTION 2 (Section 408.023, Labor Code) and that rulemaking
authority previously delegated to the Texas Workers' Compensation
Commission is modified in SECTION 5 (Section 413.013, Labor Code) of this
bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 408.022(b), Labor Code, as follows:

(b) Authorizes an employee to select an alternate doctor, if the employee
is dissatisfied with the initial choice of a doctor from the list approved
by the Texas Workers' Compensation Commission (commission), after a written
application to and being granted approval by the commission, rather than
authorizing the employee to notify the commission and request authority, to
select a second treating doctor, rather than an alternate doctor. Provides
that the employee's application for a second treating doctor must be made
for a good cause, as provided by this section and rules adopted by the
commission, and the applicant is prohibited from being made to secure a new
impairment rating or medical report. Provides that evidence that the
initial treating doctor has certified that the employee has reached maximum
medical improvement or has cleared the employee to return to work creates a
presumption that the employee's application for a second treating doctor is
not made for good cause. Authorizes a third or subsequent change of
treating doctor to be granted by the commission only in exceptional
circumstances unless the doctor is agreed upon by the employee and the
insurance carrier. Makes conforming and nonsubstantive changes. 

(f) Authorizes an employer or an employer's designee to offer an employee
the option of selecting a doctor from a list developed by the employer or
the employer's designee for treatment of a work-related compensable injury.
Authorizes an employer or an employer's designee to offer an incentive to
an employee to choose a medical provider from the identified list. Requires
the employer to notify the employee in writing of the right to select a
doctor at the time the employer notifies the employee of the provisions of
this subsection. 

SECTION 2.  Amends Section 408.023, Labor Code, as follows:

(b) Provides that each doctor performing functions under this subtitle
(Texas Workers' Compensation Act), including required medical examinations
under Section 408.004, (Required Medical Examinations; Administrative
Violation), Labor Code, and medical utilization review evaluations for
insurance carriers, must be on the list of approved doctors to perform
services under this subtitle or to receive payment for services. 

(c) Authorizes the commission to grant exceptions to the requirement
imposed under Subsection (b) as necessary to ensure that employees have
access to medical care. Authorizes the commission to allow an out-of-state
doctor to perform utilization review services on behalf of an insurance
carrier if the doctor or insurance carrier agrees to make the doctor
available for civil or administrative proceedings as if the doctor were a
resident of this state. 

(d) Requires the commission, before January 1, 2000, to complete an
inventory of doctors on the list of approved doctors and identify doctors
who elect to remain on the list. Requires the commission to allow a doctor
in good standing to reapply to be on the list. Requires the commission to
make available to doctors on the list information relating to reimbursement
for services, required medical utilization monitoring, and required
education and training necessary to conduct certain medical services under
this subtitle. Requires the commission to update the list of approved
doctors as necessary.  

(e) Requires the commission to establish criteria for imposing sanctions on
a doctor as provided by this section as a condition of continued approved
doctor practice privileges, which is authorized to include a sanction by
the Medicare or Medicaid program for any other noncompliance with that
program in professional practice or billing. Authorizes the criteria to
include evidence from the commission's medical records that the doctor's
evaluations or impairment ratings are unjustifiably, rather than
substantially, different from those the commission finds to be fair and
unreasonable.  Authorizes the criteria to include professional failure to
practice medicine in an acceptable manner, an administrative or criminal
conviction, referrals made in violation of Section 413.041 (Disclosure),
Labor Code, and other relevant factors as identified by the executive
director of the commission (executive director) in consultation with the
medical quality review panel (review panel) as provided by Section 413.013.
Redesignated from Subsection (b).  

(f) Requires the executive director of the commission to delete a doctor
from the approved doctor list if the doctor is deceased, retired from
practice, requested deletion, or is no longer allowed to practice because
of suspension or revocation of the doctor's license, notwithstanding
Section 402.072 (Sanctions), Labor Code. 

(g) Authorizes the executive director, on a recommendation by the review
panel provided  by Section 413.013 and after notice and the opportunity for
a hearing, to impose sanctions on a health care provider or an insurance
carrier utilization review agent. Specifies the sanctions that the
executive director is authorized to impose on a health care provider or on
an insurance carrier.   

(h) Provides that the required monitoring imposed under Subsection (g) must
be reasonably related to the severity of the conduct and is prohibited from
being punitive in nature. 

(i) Authorizes the findings of fact and conclusions of law of a court, the
State Office of Administrative Hearings, or a licensing or regulatory
authority to be used as the basis for action under this section. Requires
the commission, by rule, to establish procedures under which a doctor is
authorized to apply for reinstatement to the list or for restoration of
privileges removed based on sanctions.  

(j) Provides that the commission action under this section is binding
during any appeal of an act by the commission, the State Office of
Administrative Hearings, a court, or a licensing or regulatory authority. 

SECTION 3.  Amends Section 408.027, Labor Code, by amending Subsections (a)
and (b), as follows: 

(a) Requires an insurance carrier to pay the fee which is charged for a
service rendered by a health care provider (provider) no later than 30,
rather than 45, days after the insurance carrier receives the charge unless
the amount of the payment or the entitlement to payment is disputed.  

(b)  Requires an insurance carrier, if the insurance carrier disputes the
amount charged by a provider and requests an audit of the services
rendered, to pay 50 percent of the lesser of the allowed fee or the fee
charged, rather than to pay 50 percent of the amount charged by the
provider, no later than 30, rather than 45, days after the insurance
carrier receives the statement of charge.  

SECTION 4.  Amends Section 413.012, Labor Code, to require the fees
provided in the guideline be increased by three percent each year, if the
medical policies and fee guidelines are not received within the required
two-year period for review and revision of medical policies and fee
guidelines, until the medical policy or fee guideline is revised,
readopted, or repealed. 

SECTION 5.  Amends Section 413.013, Labor Code, as follows:

Sec. 413.013. New Title: COMMISSION MEDICAL QUALITY REVIEWS REQUIRED;
PANELISTS; ACTIVITIES; IMMUNITY FOR GOOD FAITH ACTIONS. (a) Requires the
commission, with advice from the Research and Oversight Council on Workers'
Compensation, to appoint a seven-member review panel, independent of the
medical advisory committee created under Section 413.005 (Medical Advisory
Committee), Labor Code, to assist in or direct the review of treatment,
evaluation, utilization to review practices, and regulation of medical
service providers and reviewers under this subtitle.  

(b) Sets forth the composition of the review panel.

(c) Authorizes the medical advisor to the commission to cast the deciding
vote in the event of a tie among the members of the review panel. 

(d) Provides that each doctor of the review panel must possess recognized
experience in treatment of patients and as a peer reviewer of medical
services. 

(e) Authorizes the review panel to consult with other specialty providers
as necessary to support reviews of medical issues.  

 (f) Requires the commission to contract with persons with certain
recognized expertise to accomplish the requirements of this Section. 

(g) Authorizes the commission, in consultation with the review panel, to
employ reasonable sampling techniques to accomplish practice pattern
identification and monitoring functions required under this subtitle. 

(h) Specifies the measurement factors that the commission is authorized to
use for the identification and monitoring of medical treatment, required
medical examinations, designated doctor opinions, and insurance carrier
utilization review services. 

(i) Requires the review panel to review and recommend to the executive
director appropriate action to add, restrict, or remove doctors from the
list of approved doctors and the list of designated doctors. Authorizes the
review panel to also review and investigate complaints and recommend to the
executive director appropriate regulatory action for health care providers.
Requires the review panel to consult with the person under review regarding
the review findings, and the person who is reviewed is authorized to
provide a written response for inclusion in the findings of the commission.
Authorizes the review panel to also identify and recommend that certain
health care providers with acceptable practice patterns and self-monitoring
mechanisms be granted waivers of certain utilization review controls that
apply to health care providers generally under commission treatment
guidelines and rules including preauthorization, documentation of procedure
filing requirements, or similar regulatory requirements.  

(j) Requires the commission to report to the legislature by February 1 and
August 31 of each year, describing the activity of the review panel.
Specifies the provisions to be included in the report. 

(k) Requires the commission to also provide timely notices to the regulated
community regarding changes in health care provider status.  

(l) Authorizes any person, including an employer, insurance carrier, health
care provider, employee, or an association, who has knowledge and evidence
of a pattern of prohibited or inappropriate medical or utilization review
conduct under this subtitle to petition the commission for a review under
this section. 

(m) Authorizes a person to petition the commission for permission to bring
a direct or joint action to remove a doctor from the approved doctor list
in the manner provided for a contested case under Chapter 2001
(Administrative Procedure), Government Code and Section 402.073
(Cooperation with the State Office of Administrative Hearings), Labor Code,
if supported by prima facie evidence of grounds for removal or restriction
of the doctor. 

(n) Provides that a person acting in good faith and without gross
negligence who files a complaint or petitions for an administrative action
to either remove a doctor from the list or approved doctors  or to impose
restrictions on practices, or who cooperates with the commission in a
review of medical treatments or services, is immune from any civil or
criminal liability that might otherwise be imposed. 

(o) Authorizes the commission to disclose confidential information to
appropriate licensing or regulatory authorities and appropriate enforcement
authorities, notwithstanding confidentiality provisions under this subtitle
or other law. Provides that the information remains confidential by law,
and prohibits the receiving agency from disclosing the information. 

(p) Requires the commission and appropriate licensing or regulatory
authorities, to adopted interagency investigative information and
confidentiality agreements in order to ensure adequate coordination of
investigative and disciplinary actions regarding health care providers and
confidentiality of information that is confidential by law. 
 
(q) Specifies the exceptions to the prohibition against confidential
information being disclosed. 

(r) Provides that confidential information developed by the commission is
not subject to discovery or court subpoena in any other action other than
to enforce the provisions of this subtitle by the commission, the
appropriate licensing or regulatory agency, or the appropriate enforcement
authority, or in a criminal proceeding. 

(s) Provides that an action by the commission under this section does not
constitute utilization review and is not subject to Article 21.58A,
Insurance Code. Deletes program requirements established by the commission. 

SECTION 6.  Amends Section 413.019, Labor Code, to provide that interest on
an unpaid fee or charge that is consistent with the fee guidelines accrues
at the rate provided by Section 401.023 (Interest or Discount Rate), Labor
Code, beginning on the 31th, rather than 60th, day after the provider
submits the bill to an insurance carrier until the date the bill is paid.
Makes a conforming change. 

SECTION 7.  Amends Section 413.042(a), Labor Code, as follows:

(a)  Prohibits a provider or any other person, rather than a provider, from
pursuing a private claim against a workers' compensation claimant for all
or part of the cost of a health care service provided to the claimant by
the provider, with certain exceptions.  

SECTION 8.Effective date: September 1, 1999.
Makes application of this Act prospective, as it applies to a claim for
workers' compensation medical benefits. Makes application of Sections
408.023 and 413.019, Labor Code, as added by this Act, prospective. 

SECTION 9.Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

This substitute redesignates SECTIONS 2-3 and 5-8 from the original bill to
SECTIONS 3-4 and 6-9 of the substitute, respectively. This substitute also
deletes SECTION 4 (proposed Sections 413.014(c)-(e), Labor Code) from the
original bill, relating to the commission's authority to impose additional
reimbursement restrictions and preauthorization requirements on certain
providers and establishing immunity from liability for a person who
performs or assists in performing services for the commission.  

This substitute differs from the original bill in SECTION 1 (Section
408.022, Labor Code), in Subsection (b), by providing that the employee's
application for a second treating doctor must be made for a good cause and
the applicant is prohibited from being made to secure a new impairment
rating or medical report. This substitute also provides that evidence that
the initial treating doctor has certified that the employee has reached
maximum medical improvement or has cleared the employee to return to work
creates a presumption that the employee's application for a second treating
doctor is not made for good cause. This substitute authorizes a third or
subsequent change of treating doctor to be granted by the commission only
in exceptional circumstances unless the doctor is agreed upon by the
employee and the insurance carrier. This substitute also adds new
Subsection (f), relating to the authorization of an employer or employer's
designee to offer an employee the option of selecting a doctor from a list
developed by the employer or employer's designee. In addition, this
substitute makes conforming and nonsubstantive changes.  

This substitute differs from the original bill by adding new SECTION 2
(Section 408.023, Labor Code), relating to the compilation, updating,
removal, and sanctioning of doctors on an approved list of doctors by the
commission, and the commission's authority to grant exceptions to the
requirement that doctors providing certain services must be on the
commission's list. The provisions in SECTION 2 are more fully addressed in
the Section-by-Section Analysis portion of this document. 
 
This substitute differs from the original bill in SECTION 3 (Section
408.027, Labor Code), by requiring an insurance carrier to pay the fee
which is charged for a service rendered by a health care provider
(provider) no later than 30, rather than 20, days after the insurance
carrier receives the charge unless the amount of the payment or the
entitlement to payment is disputed. This substitute also requires an
insurance carrier, if the insurance carrier disputes the amount charged by
a provider and requests an audit of the services rendered, to pay 50
percent of the lesser of the allowed fee or the fee charged, rather than to
pay 50 percent of the amount charged by the provider, no later than 30,
rather than 20, days after the insurance carrier receives the statement of
charge. This substitute deletes proposed Subsection (e), relating to the
payment of a fee by an insurance carrier within a certain time period. 

This substitute differs from the original bill in SECTION 4 (Section
413.012, Labor Code), by providing that the fees provided in the guideline
be increased by three percent each year, if the medical policies and fee
guidelines are not received within the required two-year period for review
and revision of medical policies and fee guidelines, until the medical
policy or fee guideline is readopted, as well as revised or repealed. 

This substitute differs from the original bill in SECTION 5 (Section
413.013, Labor Code), relating to the creation of a medical quality review
panel to assist in or direct the review of treatment, evaluation,
utilization to review practices, and regulation of medical service
providers and reviewers. The provisions in SECTION 5 are more fully
addressed in the Section-by-Section Analysis portion of this document. 

This substitute differs from the original bill in SECTION 6 (Section
413.019, Labor Code), by providing that interest on an unpaid fee or charge
that is consistent with the fee guidelines accrues at the rate provided by
Section 401.023 (Interest or Discount Rate), Labor Code, beginning on the
31th, rather than 20th, day after the provider submits the bill to an
insurance carrier until the date the bill is paid. This substitute also
deletes proposed Subsection (c), which provided that interest on an unpaid
fee or charge consistent with the fee guidelines accrues at a certain rate
beginning 30 days after the provider submits the bill to an insurance
carrier until the date the bill is paid. This substitute makes a conforming
change. 

This substitute differs from the original bill in SECTION 8, by making
application of Sections 408.023, 408.027, and 408.019 prospective, rather
than making application of SECTIONS 2 and 5 prospective, as in the original
bill.