Adopted Rules Title 28

TITLE 28. INSURANCE

PART 2. TEXAS DEPARTMENT OF INSURANCE, DIVISION OF WORKERS' COMPENSATION

CHAPTER 133. GENERAL MEDICAL PROVISIONS

INTRODUCTION. The Texas Department of Insurance, Division of Workers’ Compensation (DWC) adopts amended 28 TAC §§133.10, 133.20, 133.200, and 133.502, concerning billing and reimbursement for certain workers' compensation-specific services, including designated doctor examinations, required medical examinations, work status reports, and maximum medical improvement (MMI) evaluations and impairment rating (IR) examinations by treating and referred doctors. The amendments implement Texas Labor Code Chapters 408 and 413, which govern workers' compensation benefits, including medical examinations required to establish benefit entitlements, and medical review to ensure compliance with DWC rules for health care, including medical policies and fee guidelines. The DWC medical advisor recommended the amendments to the commissioner of workers' compensation under Labor Code §413.0511(b). The amendments to §§133.10, 133.20, and 133.502 are adopted with three changes to the proposed text published in the December 29, 2023, issue of the Texas Register (48 TexReg 8153). The changes clarify the effective dates in §§133.10(l), 133.20(o), and 133.502(g). These rules will be republished. Section 133.200 is adopted without changes and will not be republished.

REASONED JUSTIFICATION. Amending §§133.10, 133.20, 133.200, and 133.502 is necessary to attract and retain designated doctors, required medical examination doctors, and doctors that perform MMI evaluations and IR examinations by addressing billing and reimbursement issues, reducing disputes, and decreasing the administrative burden of participating in the program. Labor Code Chapter 408 entitles an employee that sustains a compensable injury to all health care reasonably required by the nature of the injury as and when needed. Specifically, the employee is entitled to health care that cures or relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment. To help determine the health care that meets those standards, the designated doctor program established under Chapter 408 provides for commissioner-ordered medical examinations to resolve any question about the impairment caused by the compensable injury, the attainment of MMI, the extent of the employee's compensable injury, whether the injured employee's disability is a direct result of the work-related injury, the ability of the employee to return to work, or other similar issues. Maintaining a viable program that ensures that injured employees can access examinations in a timely way is essential to meeting the statutory mandate of providing health care for injured employees.

Having too few doctors in the program has a negative impact on the doctors that remain in the system, on injured employees, and on insurance carriers. When there are too few doctors able to conduct the examinations needed to determine benefit levels, injured employees must often wait longer and travel farther to attend an examination, which can delay dispute resolution and other essential processes. DWC last adjusted reimbursement rates for workers' compensation-specific services in January 2008 (33 TexReg 364). Over the past 14 years, DWC has experienced a decline in the numbers of doctors providing workers' compensation-specific services. This decline has been particularly pronounced among designated doctors certified under Labor Code §408.1225 and providing designated doctor examinations as Labor Code §408.0041 requires, and especially among licensed medical doctors and doctors of osteopathy. In December 2022, for the entire state of Texas, there were only 63 available medical doctors, 10 doctors of osteopathic medicine, 177 doctors of chiropractic, and no doctors of podiatry, dental science, or optometry. Yet in that month, there were 1,259 designated doctor appointments for those 250 designated doctors to cover.

DWC held stakeholder meetings in March, September, and December 2022 to discuss issues with declining participation in the designated doctor program, including issues with billing logistics and reimbursement rates. DWC invited public comments on three separate informal drafts posted on DWC's website in August 2022, November 2022, and June 2023. In addition, DWC conducted a stakeholder survey to gather information about anticipated implementation costs and benefits in September 2023. DWC considered the comments it received at the meetings and on the informal drafts when drafting the proposal. DWC also considered comments it received in a public hearing on the proposal on January 23, 2024, as well as written comments it received by the January 29, 2024, deadline, when drafting this adoption order.

In April 2023, after gathering data about the program and soliciting input from system participants about how to maintain and increase participation in the designated doctor program and allow better access to specialized examinations, DWC adopted amendments to Chapter 127 of this title, concerning designated doctor procedures and requirements, and §180.23 of this title, concerning division-required training for doctors. Those rules addressed certification, training, and procedures for designated doctors and were required to address administrative and logistical inefficiencies, and to improve access to examinations, to make participation in the program possible and attractive for more doctors. They were one part of the project to ensure the designated doctor program's viability, in compliance with the Labor Code. After their adoption, DWC saw a near-immediate increase in the numbers of doctors applying to the program, which was very encouraging.

However, the common theme throughout the input-gathering process about how to improve the program was billing and reimbursement for certain workers' compensation-specific services, especially designated doctor examinations. Nearly every comment DWC received mentioned some combination of issues about the fees for designated doctor examinations--that they were insufficient, had not been adjusted for inflation or other economic factors in over a decade, did not take into account missed appointments or the time spent reviewing injured employees' medical records, and other similar issues. In adopting the amendments to Chapter 127 and §180.23, DWC stated that billing and reimbursement issues would be addressed in a separate rule project. As a result, the changes in this rule proposal are another part of the project and are necessary to account for past and future inflation, examination complexity, and other economic factors that affect participation in the designated doctor program.

The amendments to §§133.10, 133.20, 133.200, and 133.502 require an assignment number in the prior authorization field of the medical billing forms to identify designated doctor-associated billing. DWC expects the format of the assignment number to be 12345678DD01. The numbers on the left would be the DWC claim number. The "DD" would denote a designated doctor-associated examination. The numbers on the right would indicate whether it is the first, second, third, and so forth, ordered examination for the claim. The DWC-provided assignment number is for identification purposes and does not create a preauthorization or utilization review requirement. The current rules do not provide a billing mechanism to distinguish designated doctor examinations or any additional testing or referral evaluations that result from a designated doctor examination. This produces confusion and delays in payment. For example, under Labor Code §408.1225, insurance carriers must pay for designated doctor examinations, and §127.10(c) of this title requires a designated doctor to perform additional testing and refer an injured employee to other health care providers when necessary to resolve the issue in question. Any required additional testing or referral is not subject to preauthorization requirements and cannot be denied retrospectively based on medical necessity, extent of injury, or compensability. However, if the insurance carrier cannot easily see that an examination is a designated doctor examination or a referral from a designated doctor examination, processing the bill could be unnecessarily delayed, which creates additional work and expense. Requiring an assignment number in the preauthorization field addresses this problem by linking the designated doctor examination and any additional testing or referral evaluations to the DWC-provided assignment number that distinguishes them as designated doctor examinations.

In addition, the amendments clarify that the 95-day period for timely submission of a designated doctor examination bill, where the designated doctor has referred the injured employee for additional testing or evaluation, begins on the date of service for the additional testing or evaluation. This ensures that any delays in scheduling or performing the additional testing or evaluation do not penalize the designated doctor by making compliance with the billing timeline impossible, which could make the bill unpayable. It gives the designated doctor time to complete the examination report.

The amendments also correct a typographical error in a rule reference and include nonsubstantive editorial and formatting changes throughout that make updates for plain language and agency style to improve the rule's clarity.

Section 133.10. The amendments to §133.10 require an assignment number in the prior authorization field of the 1500 Health Insurance Claim Form Version 02/12 (CMS-1500), Uniform Bill 04 (UB-04), Statement of Pharmacy Services (DWC Form-066), and 2006 American Dental Association Dental Claim Form (ADA 2006) for DWC-ordered designated doctor examinations, and for additional testing or evaluation that a designated doctor refers. They also clarify the dates that apply to the additional testing or evaluation. Amending §133.10 is necessary to better identify that a bill is for a designated doctor examination, and to help associate a bill for additional testing or evaluation that occurs as a result of a designated doctor examination with the original designated doctor examination. These amendments will help insurance carriers and bill review agents identify these types of bills and associate them with the proper examination types, and they will increase the likelihood that the bills will be paid without unnecessary administrative delay.

Section 133.20. The amendments to §133.20 clarify that the 95-day period for timely submission of a bill for additional testing or evaluation under §127.10 of this title begins on the date of service of the additional testing or evaluation. They also require a designated doctor that refers an injured employee for additional testing or evaluation to provide the assignment number to the health care provider performing the testing or evaluation, and they require a designated doctor or a health care provider performing additional testing or evaluation to include the assignment number on the medical bill to conform with amended §133.10. Amending §133.20 is necessary to ensure consistency in billing deadlines, to allow the designated doctor time to complete the designated doctor report after receiving the results from the additional testing or evaluation, and to prevent the designated doctor from being penalized unfairly if scheduling or performing the additional testing or evaluation takes more than a few weeks.

Section 133.200. The amendments to §133.200 correct an incorrect reference to §133.10. Amending §133.200 is necessary to ensure the reference's accuracy.

Section 133.502. The amendments to §133.502 apply the requirement to include the assignment number in the prior authorization field in §133.10 and §133.20 to professional, institutional or hospital, dental, and pharmacy electronic medical bills. Amending §133.502 is necessary to ensure consistency in billing between paper and electronic formats, and to allow DWC to better identify designated doctor and designated doctor referral billing in the DWC database of medical charges.

SUMMARY OF COMMENTS AND AGENCY RESPONSE.

Commenters: DWC received 30 written comments by the January 29, 2024, deadline, and three oral comments at the January 23, 2024, hearing. Because DWC published the Chapter 133 proposal and the Chapter 134 proposal at the same time and discussed both proposals in the hearing, some commenters submitted comments specifically on both proposals, while others acknowledged both proposals but only commented specifically on one. Twenty-two individuals acknowledged both proposals in their comments but did not specifically state a position on the Chapter 133 proposal. Commenters specifically in support of the Chapter 133 proposal were: the Office of Injured Employee Counsel; the Texas Chiropractic Association; the Insurance Council of Texas; Texas Independent Evaluators, LLC; and three individuals. Commenters specifically in support of the Chapter 133 proposal with changes were: Texas Mutual Insurance Company. No commenters were against the Chapter 133 proposal.

Comments on Chapter 133. Seven commenters stated that they supported the proposal. One commenter expressed support and appreciation for DWC’s efforts to provide free training for insurance carriers and health care providers on the new billing requirements and reimbursement rates.

Agency Response to Comments on Chapter 133. DWC appreciates the comments.

Comments on Chapter 133 (assignment number). One commenter stated that the assignment number was for clarity purposes. One commenter stated that they support and appreciate DWC’s clarification on the format for designated doctor order numbers, which will allow insurance carriers to distinguish a designated doctor order number in the preauthorization field of a medical bill from a preauthorization number.

Agency Response to Comments on Chapter 133. DWC appreciates the comments and agrees.

Comment on §133.20 (95-day period). One commenter asked DWC to clarify the start of the 95-day period for timely submission of a designated doctor exam bill.

Agency Response to Comment on §133.20 (95-day period). DWC appreciates the comment. Under §133.10, when a designated doctor refers an injured employee for additional testing or evaluation, the "From" date is the date of the designated doctor examination, and the "To" date is the date of service of the additional testing or evaluation. Under §133.20, the 95-day period for timely submission of a bill for additional testing or evaluation begins on the date of service of the additional testing or evaluation (the "To" date in the dates of service field in the CMS-1500/field 24A).

Comment on Chapter 133 (effective dates). One commenter recommended that references to effective dates throughout Chapter 133 be changed to say "effective for services provided on or after (insert final effective date)" to correspond with the applicability date references in §134.209(b) of this title.

Agency Response to Comment on Chapter 133 (effective dates). DWC appreciates the comment and has added to the text in §§133.10(l), 133.20(o), and 133.502(g) to clarify the effective dates for medical bills submitted as a result of an examination that was ordered or referred as the result of an order issued on or after the effective date of the rule.

Comment on §133.10 (health care provider type). One commenter recommended that DWC add a health care provider type "AP" for advanced practice registered nurse to the list of provider types in §133.10(i).

Agency Response to Comment on §133.10 (health care provider type). DWC appreciates the suggestion but declines to make the change because it is out of scope for this rule. If DWC later initiates a rule project to review all of the health care provider types in §133.10, DWC will consider recommendations for additions or deletions at that time.

Comment on §133.10 and §133.502 (pharmacy). One commenter recommended that DWC remove any new billing guidance for additional designated doctor-ordered testing or evaluation services on pharmacy bills. The commenter requested, alternatively, that DWC provide clarification regarding how an insurance carrier would treat such a bill received from a pharmacy.

Agency Response to Comment on §133.10 and §133.502 (pharmacy). DWC appreciates the suggestion but declines to make the change. It is conceivable that a pharmacy provider could need to complete and bill for designated doctor-ordered testing or evaluation services, and omitting pharmacy providers from the billing guidance could inadvertently create confusion in that situation. An insurance carrier would handle the bill through its normal billing process. DWC will address general questions about the normal billing process through training.

Comment on §133.20 (reference to §126.9). One commenter recommended that DWC revise §133.20(l) to include a reference to §126.9 of this title as an additional condition under which a health care provider may bill an injured employee.

Agency Response to Comment on §133.20 (reference to §126.9). DWC appreciates the suggestion but declines to make the change because it is out of scope for this rule. If DWC later initiates a rule project to review the conditions under which a health care provider may bill an injured employee, DWC will consider recommendations for additions or deletions at that time.

SUBCHAPTER B. HEALTH CARE PROVIDER BILLING PROCEDURES

28 TAC §133.10, §133.20

STATUTORY AUTHORITY. The commissioner of workers’ compensation adopts the amendments to §133.10 and §133.20 under Labor Code §§408.004, 408.0041, 408.021, 408.023, 408.0251, 408.0252, 408.1225, 413.007, 413.011, 413.012, 413.015, 413.0511, 413.053, 402.00111, 402.00116, and 402.061.

Labor Code §408.004 provides that the commissioner may require an employee to submit to medical examinations to resolve any question about the appropriateness of the health care the employee receives, or at the request of the insurance carrier after the insurance carrier has tried and failed to get the employee's permission and concurrence for the examination. It also requires the insurance carrier to pay for those examinations, as well as the reasonable expenses incident to the employee in submitting to them.

Labor Code §408.0041 provides that, at the request of an insurance carrier or an employee, or on the commissioner's own order, the commissioner may order a medical examination to resolve any question about the impairment caused by the compensable injury, the attainment of MMI, the extent of the employee's compensable injury, whether the injured employee's disability is a direct result of the work-related injury, the ability of the employee to return to work, or other similar issues.

Labor Code §408.021 entitles an employee that sustains a compensable injury to all health care reasonably required by the nature of the injury as and when needed. The employee is specifically entitled to health care that cures or relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment.

Labor Code §408.023 requires in part that the commissioner by rule establish reasonable requirements for doctors, and health care providers financially related to those doctors, regarding training, IR testing, and disclosure of financial interests; and for monitoring of those doctors and health care providers. It also requires a doctor, including a doctor who contracts with a workers' compensation health care network, to comply with the IR training and testing requirements in the rule if the doctor intends to provide MMI certifications or assign IRs.

Labor Code §408.0251 requires the commissioner of workers' compensation, in cooperation with the commissioner of insurance, to adopt rules about the electronic submission and processing of medical bills by health care providers to insurance carriers and establish exceptions. It also requires insurance carriers to accept electronically submitted medical bills in accordance with the rules, and it allows the commissioner of workers' compensation to adopt rules about the electronic payment of medical bills by insurance carriers to health care providers.

Labor Code §408.0252 provides that the commissioner of workers' compensation may, by rule, identify areas of this state in which access to health care providers is less available, and adopt appropriate standards, guidelines, and rules about the delivery of health care in those areas.

Labor Code §408.1225 requires the commissioner of workers' compensation to develop a process for certifying designated doctors, which requires DWC to evaluate designated doctors' educational experience, previous training, and demonstrated ability to perform the specific designated doctor duties in §408.0041. It also requires standard training and testing for designated doctors.

Labor Code §413.007 requires DWC to maintain a statewide database of medical charges, actual payments, and treatment protocols that may be used by the commissioner in adopting the medical policies and fee guidelines, and by DWC in administering the medical policies, fee guidelines, or rules. The database must contain information necessary to detect practices and patterns in medical charges, actual payments, and treatment protocols, and must be able to be used in a meaningful way to allow DWC to control medical costs.

Labor Code §413.011 requires the commissioner to adopt health care reimbursement policies and guidelines that reflect the standardized reimbursement structures found in other health care delivery systems with minimal modifications to those reimbursement methodologies as needed to meet occupational injury requirements. It requires the commissioner to adopt the most current methodologies, models, and values or weights used by the federal Centers for Medicare and Medicaid Services (CMS), including applicable payment policies relating to coding, billing, and reporting; and allows the commissioner to modify documentation requirements as needed to meet the requirements of §413.053. It also requires the commissioner, in determining the appropriate fees, to develop one or more conversion factors or other payment adjustment factors taking into account economic indicators in health care and the requirements of §413.011(d); and requires the commissioner to provide for reasonable fees for the evaluation and management of care as required by §408.025(c) and commissioner rules. The commissioner may not adopt the Medicare fee schedule or conversion factors or other payment adjustment factors based solely on those factors as developed by the federal CMS. Fee guidelines must be fair and reasonable, and designed to ensure the quality of medical care and achieve medical cost control. They may not provide for payment of a fee that exceeds the fee charged for similar treatment of an injured individual of an equivalent standard of living and paid by that individual or by someone acting on that individual's behalf. When establishing the fee guidelines, §413.011 requires the commissioner to consider the increased security of payment that Subtitle A, Title 5, Labor Code affords. It allows network contracts under Insurance Code §1305.006. It specifically authorizes the commissioner and the commissioner of insurance to adopt rules as necessary to implement §413.011.

Labor Code §413.012 requires the medical policies and fee guidelines to be reviewed and revised at least every two years to reflect fair and reasonable fees and to reflect medical treatment or ranges of treatment that are reasonable and necessary at the time the review and revision is conducted.

Labor Code §413.015 requires insurance carriers to pay appropriate charges for medical services under Subtitle A, Title 5, Labor Code, and requires the commissioner by rule to review and audit those payments to ensure compliance with the adopted medical policies and fee guidelines. The insurance carrier must pay the expenses of the review and audit.

Labor Code §413.0511 requires DWC to employ or contract with a medical advisor. The medical advisor must be a doctor, as defined in §401.011. The medical advisor's duties include making recommendations about the adoption of rules and policies to: develop, maintain, and review guidelines as provided by §413.011, including rules about IRs; reviewing compliance with those guidelines; regulating or performing other acts related to medical benefits as required by the commissioner; and determining minimal modifications to the reimbursement methodology and model used by the Medicare system as needed to meet occupational injury requirements.

Labor Code §413.053 requires the commissioner by rule to establish standards of reporting and billing governing both form and content.

Labor Code §402.00111 provides that the commissioner of workers' compensation shall exercise all executive authority, including rulemaking authority under Title 5 of the Labor Code.

Labor Code §402.00116 provides that the commissioner of workers' compensation shall administer and enforce this title, other workers' compensation laws of this state, and other laws granting jurisdiction to or applicable to DWC or the commissioner.

Labor Code §402.061 provides that the commissioner of workers' compensation shall adopt rules as necessary to implement and enforce the Texas Workers' Compensation Act.

§133.10.Required Billing Forms/Formats.

(a) Health care providers, including those providing services for a certified workers' compensation health care network as defined in Insurance Code Chapter 1305 or to political subdivisions with contractual relationships under Labor Code §504.053(b)(2), must submit medical bills for payment in an electronic format in accordance with §133.500 and §133.501 of this title (relating to Electronic Formats for Electronic Medical Bill Processing and Electronic Medical Bill Processing), unless the health care provider or the billed insurance carrier is exempt from the electronic billing process in accordance with §133.501 of this title.

(b) Except as provided in subsection (a) of this section, health care providers, including those providing services for a certified workers' compensation health care network as defined in Insurance Code Chapter 1305 or to political subdivisions with contractual relationships under Labor Code §504.053(b)(2), must submit paper medical bills for payment on:

(1) the 1500 Health Insurance Claim Form Version 02/12 (CMS-1500);

(2) the Uniform Bill 04 (UB-04); or

(3) applicable forms prescribed for pharmacists, dentists, and surgical implant providers specified in subsections (c), (d), and (e) of this section.

(c) Pharmacists and pharmacy processing agents must submit bills using the division form DWC-066. A pharmacist or pharmacy processing agent may submit bills using an alternate billing form if:

(1) the insurance carrier has approved the alternate billing form prior to submission by the pharmacist or pharmacy processing agent; and

(2) the alternate billing form provides all information required on the division form DWC-066.

(d) Dentists must submit bills for dental services using the 2006 American Dental Association (ADA) Dental Claim form.

(e) Surgical implant providers requesting separate reimbursement for implantable devices must submit bills using:

(1) the form prescribed in subsection (b)(1) of this section when the implantable device reimbursement is sought under §134.402 of this title (relating to Ambulatory Surgical Center Fee Guideline); or

(2) the form prescribed in subsection (b)(2) of this section when the implantable device reimbursement is sought under §134.403 or §134.404 of this title (relating to Hospital Facility Fee Guideline--Outpatient and Hospital Facility Fee Guideline--Inpatient).

(f) All information submitted on required paper billing forms must be legible and completed in accordance with this section. The parenthetical information following each term in this section refers to the applicable paper medical billing form and the field number corresponding to the medical billing form.

(1) The following data content or data elements are required for a complete professional or noninstitutional medical bill related to Texas workers' compensation health care:

(A) patient's Social Security number (CMS-1500/field 1a) is required;

(B) patient's name (CMS-1500/field 2) is required;

(D) employer's name (CMS-1500/field 4) is required;

(E) patient's address (CMS-1500/field 5) is required;

(F) patient's relationship to subscriber (CMS-1500, field 6) is required;

(G) employer's address (CMS-1500, field 7) is required;

(H) workers' compensation claim number assigned by the insurance carrier (CMS-1500/field 11) is required when known; the billing provider must leave the field blank if the workers' compensation claim number is not known by the billing provider;

(I) date of injury and "431" qualifier (CMS-1500, field 14) are required;

(J) name of referring provider or other source is required when another health care provider referred the patient for the services; no qualifier indicating the role of the provider is required (CMS-1500, field 17);

(K) referring provider's state license number (CMS-1500/field 17a) is required when there is a referring doctor listed in CMS-1500/field 17; the billing provider must enter the '0B' qualifier and the license type, license number, and jurisdiction code (for example, 'MDF1234TX');

(L) referring provider's National Provider Identifier (NPI) number (CMS-1500/field 17b) is required when CMS-1500/field 17 contains the name of a health care provider eligible to receive an NPI number;

(M) diagnosis or nature of injury (CMS-1500/field 21) is required; at least one diagnosis code and the applicable ICD indicator must be present;

(N) prior authorization number (CMS-1500/field 23) is required in the following situations:

(i) Preauthorization, concurrent review, or voluntary certification was approved, and the insurance carrier provided an approval number to the requesting health care provider. Include the approval number in the prior authorization field (CMS-1500/field 23).

(ii) The division ordered a designated doctor examination and provided an assignment number. Include the assignment number in the prior authorization field (CMS-1500/field 23).

(iii) The designated doctor referred the injured employee for additional testing or evaluation, and the division provided an assignment number. Include the assignment number in the prior authorization field (CMS-1500/field 23).

(O) date or dates of service (CMS-1500, field 24A) is required;

(i) If the designated doctor referred the injured employee for additional testing or evaluation, the "From" date is the date of the designated doctor examination, and the "To" date is the date of service of the additional testing or evaluation.

(ii) If the designated doctor did not refer the injured employee for additional testing or evaluation, the "From" and "To" dates are the date of the designated doctor examination.

(P) place of service code or codes (CMS-1500, field 24B) is required;

(Q) procedure/modifier code (CMS-1500, field 24D) is required;

(R) diagnosis pointer (CMS-1500, field 24E) is required;

(S) charges for each listed service (CMS-1500, field 24F) is required;

(T) number of days or units (CMS-1500, field 24G) is required;

(U) rendering provider's state license number (CMS-1500/field 24j, shaded portion) is required when the rendering provider is not the billing provider listed in CMS-1500/field 33; the billing provider must enter the '0B' qualifier and the license type, license number, and jurisdiction code (for example, 'MDF1234TX');

(V) rendering provider's NPI number (CMS-1500/field 24j, unshaded portion) is required when the rendering provider is not the billing provider listed in CMS-1500/field 33 and the rendering provider is eligible for an NPI number;

(W) supplemental information (shaded portion of CMS-1500/fields 24d - 24h) is required when the provider is requesting separate reimbursement for surgically implanted devices or when additional information is necessary to adjudicate payment for the related service line;

(X) billing provider's federal tax ID number (CMS-1500/field 25) is required;

(Y) total charge (CMS-1500/field 28) is required;

(Z) signature of physician or supplier, the degrees or credentials, and the date (CMS-1500/field 31) is required, but the signature may be represented with a notation that the signature is on file and the typed name of the physician or supplier;

(AA) service facility location information (CMS-1500/field 32) is required;

(BB) service facility NPI number (CMS-1500/field 32a) is required when the facility is eligible for an NPI number;

(CC) billing provider name, address, and telephone number (CMS-1500/field 33) is required;

(DD) billing provider's NPI number (CMS-1500/Field 33a) is required when the billing provider is eligible for an NPI number; and

(EE) billing provider's state license number (CMS-1500/field 33b) is required when the billing provider has a state license number; the billing provider must enter the '0B' qualifier and the license type, license number, and jurisdiction code (for example, 'MDF1234TX').

(2) The following data content or data elements are required for a complete institutional medical bill related to Texas workers' compensation health care:

(A) billing provider's name, address, and telephone number (UB-04/field 01) is required;

(B) patient control number (UB-04/field 03a) is required;

(D) billing provider's federal tax ID number (UB-04/field 05) is required;

(E) statement covers period (UB-04/field 06) is required;

(F) patient's name (UB-04/field 08) is required;

(G) patient's address (UB-04/field 09) is required;

(H) patient's date of birth (UB-04/field 10) is required;

(I) patient's gender (UB-04/field 11) is required;

(J) date of admission (UB-04/field 12) is required when billing for inpatient services;

(K) admission hour (UB-04/field 13) is required when billing for inpatient services other than skilled nursing inpatient services;

(L) priority (type) of admission or visit (UB-04/field 14) is required;

(M) point of origin for admission or visit (UB-04/field 15) is required;

(N) discharge hour (UB-04/field 16) is required when billing for inpatient services with a frequency code of "1" or "4" other than skilled nursing inpatient services;

(O) patient discharge status (UB-04/field 17) is required;

(P) condition codes (UB-04/fields 18 - 28) are required when there is a condition code that applies to the medical bill;

(Q) occurrence codes and dates (UB-04/fields 31 - 34) are required when there is an occurrence code that applies to the medical bill;

(R) occurrence span codes and dates (UB-04/fields 35 and 36) are required when there is an occurrence span code that applies to the medical bill;

(S) value codes and amounts (UB-04/fields 39 - 41) are required when there is a value code that applies to the medical bill;

(T) revenue codes (UB-04/field 42) are required;

(U) revenue description (UB-04/field 43) is required;

(V) HCPCS/Rates (UB-04/field 44):

(i) HCPCS codes are required when billing for outpatient services and an appropriate HCPCS code exists for the service line item; and

(ii) accommodation rates are required when a room and board revenue code is reported;

(W) service date (UB-04/field 45) is required when billing for outpatient services;

(X) service units (UB-04/field 46) is required;

(Y) total charge (UB-04/field 47) is required;

(Z) date bill submitted, page numbers, and total charges (UB-04/field 45/line 23) is required;

(AA) insurance carrier name (UB-04/field 50) is required;

(BB) billing provider NPI number (UB-04/field 56) is required when the billing provider is eligible to receive an NPI number;

(CC) billing provider's state license number (UB-04/field 57) is required when the billing provider has a state license number; the billing provider must enter the license number and jurisdiction code (for example, '123TX');

(DD) employer's name (UB-04/field 58) is required;

(EE) patient's relationship to subscriber (UB-04/field 59) is required;

(FF) patient's Social Security number (UB-04/field 60) is required;

(GG) workers' compensation claim number assigned by the insurance carrier (UB-04/field 62) is required when known, the billing provider must leave the field blank if the workers' compensation claim number is not known by the billing provider;

(HH) preauthorization number (UB-04/field 63) is required when:

(i) preauthorization, concurrent review, or voluntary certification was approved, and the insurance carrier provided an approval number to the health care provider; or

(ii) a designated doctor referred the injured employee for additional testing or evaluation, and the division provided an assignment number to the designated doctor.

(II) principal diagnosis code and present on admission indicator (UB-04/field 67) are required;

(JJ) other diagnosis codes (UB-04/field 67A - 67Q) are required when these conditions exist or subsequently develop during the patient's treatment;

(KK) admitting diagnosis code (UB-04/field 69) is required when the medical bill involves an inpatient admission;

(LL) patient's reason for visit (UB-04/field 70) is required when submitting an outpatient medical bill for an unscheduled outpatient visit;

(MM) principal procedure code and date (UB-04/field 74) is required when submitting an inpatient medical bill and a procedure was performed;

(NN) other procedure codes and dates (UB-04/fields 74A - 74E) are required when submitting an inpatient medical bill and other procedures were performed;

(OO) attending provider's name and identifiers (UB-04/field 76) are required for any services other than nonscheduled transportation services, the billing provider must report the NPI number for an attending provider eligible for an NPI number and the state license number by entering the '0B' qualifier and the license type, license number, and jurisdiction code (for example, 'MDF1234TX');

(PP) operating physician's name and identifiers (UB-04/field 77) are required when a surgical procedure code is included on the medical bill; the billing provider must report the NPI number for an operating physician eligible for an NPI number and the state license number by entering the '0B' qualifier and the license type, license number, and jurisdiction code (for example, 'MDF1234TX'); and

(QQ) remarks (UB-04/field 80) is required when separate reimbursement for surgically implanted devices is requested.

(3) The following data content or data elements are required for a complete pharmacy medical bill related to Texas workers' compensation health care:

(A) dispensing pharmacy's name and address (DWC-066/field 1) is required;

(B) date of billing (DWC-066/field 2) is required;

(D) billing pharmacy's or pharmacy processing agent's name and address (DWC-066/field 4) is required when different from the dispensing pharmacy (DWC-066/field 1);

(E) invoice number (DWC-066/field 5) is required;

(F) payee's federal employer identification number (DWC-066/field 6) is required;

(G) insurance carrier's name (DWC-066/field 7) is required;

(H) employer's name and address (DWC-066/field 8) is required;

(I) injured employee's name and address (DWC-066/field 9) is required;

(J) injured employee's Social Security number (DWC-066/field 10) is required;

(K) date of injury (DWC-066/field 11) is required;

(L) injured employee's date of birth (DWC-066/field 12) is required;

(M) prescribing doctor's name and address (DWC-066/field 13) is required;

(N) prescribing doctor's NPI number (DWC-066/field 14) is required;

(O) workers' compensation claim number assigned by the insurance carrier (DWC-066/field 15) is required when known; the billing provider must leave the field blank if the workers' compensation claim number is not known by the billing provider;

(P) dispensed as written code (DWC-066/field 19) is required;

(Q) date filled (DWC-066/field 20) is required;

(R) generic National Drug Code (NDC) code (DWC-066/field 21) is required when a generic drug was dispensed or if dispensed as written code '2' is reported in DWC-066/field 19;

(S) name brand NDC code (DWC-066/field 22) is required when a name brand drug is dispensed;

(T) quantity (DWC-066/field 23) is required;

(U) days supply (DWC-066/field 24) is required;

(V) amount paid by the injured employee (DWC-066/field 26) is required if applicable;

(W) drug name and strength (DWC-066/field 27) is required;

(X) prescription number (DWC-066/field 28) is required;

(Y) amount billed (DWC-066/field 29) is required;

(Z) preauthorization number (DWC-066/field 30) is required when:

(i) preauthorization, voluntary certification, or an agreement was approved, and the insurance carrier provided an approval number to the requesting health care provider; or

(ii) a designated doctor referred the injured employee for additional testing or evaluation, and the division provided an assignment number to the designated doctor.

(AA) for billing of compound drugs, refer to the requirements in §134.502 of this title (relating to Pharmaceutical Services).

(4) The following data content or data elements are required for a complete dental medical bill related to Texas workers' compensation health care:

(A) type of transaction (ADA 2006 Dental Claim Form/field 1);

(B) preauthorization number (ADA 2006 Dental Claim Form/field 2) is required when:

(i) preauthorization, concurrent review, or voluntary certification was approved, and the insurance carrier provided an approval number to the health care provider; or

(ii) a designated doctor referred the injured employee for additional testing or evaluation, and the division provided an assignment number to the designated doctor.

(D) employer's name and address (ADA 2006 Dental Claim Form/field 12) is required;

(E) workers' compensation claim number assigned by the insurance carrier (ADA 2006 Dental Claim Form/field 15) is required when known; the billing provider must leave the field blank if the workers' compensation claim number is not known by the billing provider;

(F) patient's name and address (ADA 2006 Dental Claim Form/field 20) is required;

(G) patient's date of birth (ADA 2006 Dental Claim Form/field 21) is required;

(H) patient's gender (ADA 2006 Dental Claim Form/field 22) is required;

(I) patient's Social Security number (ADA 2006 Dental Claim Form/field 23) is required;

(J) procedure date (ADA 2006 Dental Claim Form/field 24) is required;

(K) tooth number or numbers or letter or letters (ADA 2006 Dental Claim Form/field 27) is required;

(L) procedure code (ADA 2006 Dental Claim Form/field 29) is required;

(M) fee (ADA 2006 Dental Claim Form/field 31) is required;

(N) total fee (ADA 2006 Dental Claim Form/field 33) is required;

(O) place of treatment (ADA 2006 Dental Claim Form/field 38) is required;

(P) treatment resulting from (ADA 2006 Dental Claim Form/field 45) is required; the provider must check the box for occupational illness/injury;

(Q) date of injury (ADA 2006 Dental Claim Form/field 46) is required;

(R) billing provider's name and address (ADA 2006 Dental Claim Form/field 48) is required;

(S) billing provider's NPI number (ADA 2006 Dental Claim Form/field 49) is required if the billing provider is eligible for an NPI number;

(T) billing provider's state license number (ADA 2006 Dental Claim Form/field 50) is required when the billing provider is a licensed health care provider; the billing provider must enter the license type, license number, and jurisdiction code (for example, 'DS1234TX');

(U) billing provider's federal tax ID number (ADA 2006 Dental Claim Form/field 51) is required;

(V) rendering dentist's NPI number (ADA 2006 Dental Claim Form/field 54) is required when different than the billing provider's NPI number (ADA 2006 Dental Claim Form/field 49) and the rendering dentist is eligible for an NPI number;

(W) rendering dentist's state license number (ADA 2006 Dental Claim Form/field 55) is required when different than the billing provider's state license number (ADA 2006 Dental Claim Form/field 50); the billing provider must enter the license type, license number, and jurisdiction code (for example, 'MDF1234TX'); and

(X) rendering provider's and treatment location address (ADA 2006 Dental Claim Form/field 56) is required when different from the billing provider's address (ADA Dental Claim Form/field 48).

(g) If the injured employee does not have a Social Security number as required in subsection (f) of this section, the health care provider must leave the field blank.

(h) Except for facility state license numbers, state license numbers submitted under subsection (f) of this section must be in the following format: license type, license number, and jurisdiction state code (for example 'MDF1234TX').

(i) In reporting the state license number under subsection (f) of this section, health care providers should select the license type that most appropriately reflects the type of medical services they provided to the injured employees. When a health care provider does not have a state license number, the field is submitted with only the license type and jurisdiction code (for example, DMTX). The license types used in the state license format must be one of the following:

(1) AC for Acupuncturist;

(2) AM for Ambulance Services;

(3) AS for Ambulatory Surgery Center;

(4) AU for Audiologist;

(5) CN for Clinical Nurse Specialist;

(6) CP for Clinical Psychologist;

(7) CR for Certified Registered Nurse Anesthetist;

(8) CS for Clinical Social Worker;

(9) DC for Doctor of Chiropractic;

(10) DM for Durable Medical Equipment Supplier;

(11) DO for Doctor of Osteopathy;

(12) DP for Doctor of Podiatric Medicine;

(13) DS for Dentist;

(14) IL for Independent Laboratory;

(15) LP for Licensed Professional Counselor;

(16) LS for Licensed Surgical Assistant;

(17) MD for Doctor of Medicine;

(18) MS for Licensed Master Social Worker;

(19) MT for Massage Therapist;

(20) NF for Nurse First Assistant;

(21) OD for Doctor of Optometry;

(22) OP for Orthotist/Prosthetist;

(23) OT for Occupational Therapist;

(24) PA for Physician Assistant;

(25) PM for Pain Management Clinic;

(26) PS for Psychologist;

(27) PT for Physical Therapist;

(28) RA for Radiology Facility; or

(29) RN for Registered Nurse.

(j) When resubmitting a medical bill under subsection (f) of this section, a resubmission condition code may be reported. In reporting a resubmission condition code, the following definitions apply to the resubmission condition codes established by the Uniform National Billing Committee:

(1) W3 - Level 1 Appeal means a request for reconsideration under §133.250 of this title (relating to Reconsideration for Payment of Medical Bills) or an appeal of an adverse determination under Chapter 19, Subchapter U of this title (relating to Utilization Reviews for Health Care Provided Under Workers' Compensation Insurance Coverage);

(2) W4 - Level 2 Appeal means a request for reimbursement as a result of a decision issued by the division, an independent review organization, or a network complaint process; and

(3) W5 - Level 3 Appeal means a request for reimbursement as a result of a decision issued by an administrative law judge or judicial review.

(k) The inclusion of the appropriate resubmission condition code and the original reference number is sufficient to identify a resubmitted medical bill as a request for reconsideration under §133.250 of this title or an appeal of an adverse determination under Chapter 19, Subchapter U of this title provided the resubmitted medical bill complies with the other requirements contained in the appropriate section.

(l) Effective Date.

(1) This section is effective for medical bills submitted on or after June 1, 2024.

(2) For medical bills submitted as a result of an examination that was ordered or referred as the result of an order issued on or after June 1, 2024, the provisions of subsection (f) of this section are effective on and after June 1, 2024.

§133.20.Medical Bill Submission by Health Care Provider.

(a) The health care provider must submit all medical bills to the insurance carrier except when billing the employer in accordance with subsection (j) of this section.

(b) Except as provided in Labor Code §408.0272(b), (c), or (d), a health care provider must not submit a medical bill later than the 95th day after the date the services are provided.

(1) If a designated doctor refers an injured employee for additional testing or evaluation under §127.10 of this title, the 95-day period for timely submission of the bill begins on the date of service of the additional testing or evaluation.

(2) In accordance with subsection (c) of the statute, the health care provider must submit the medical bill to the correct workers' compensation insurance carrier no later than the 95th day after the date the health care provider is notified of the health care provider's erroneous submission of the medical bill.

(3) A health care provider who submits a medical bill to the correct workers' compensation insurance carrier must include a copy of the original medical bill submitted, a copy of the explanation of benefits (EOB) if available, and sufficient documentation to support why one or more of the exceptions for untimely submission of a medical bill under §408.0272 should be applied. The medical bill submitted by the health care provider to the correct workers' compensation insurance carrier is subject to the billing, review, and dispute processes established by Chapter 133, including §133.307(c)(2)(A) - (H) of this title (relating to MDR of Fee Disputes), which establishes the generally acceptable standards for documentation.

(c) A health care provider must include correct billing codes from the applicable division fee guidelines in effect on the date or dates of service when submitting medical bills.

(d) The health care provider that provided the health care must submit its own bill, unless:

(1) the health care was provided as part of a return-to-work rehabilitation program in accordance with the division fee guidelines in effect for the dates of service;

(2) the health care was provided by an unlicensed individual under the direct supervision of a licensed health care provider, in which case the supervising health care provider must submit the bill;

(3) the health care provider contracts with an agent for purposes of medical bill processing, in which case the health care provider agent may submit the bill; or

(4) the health care provider is a pharmacy that has contracted with a pharmacy processing agent for purposes of medical bill processing, in which case the pharmacy processing agent may submit the bill.

(e) A medical bill must be submitted:

(1) for an amount that does not exceed the health care provider's usual and customary charge for the health care provided in accordance with Labor Code §§413.011 and 415.005; and

(2) in the name of the licensed health care provider that provided the health care or that provided direct supervision of an unlicensed individual who provided the health care.

(f) Health care providers must not resubmit medical bills to insurance carriers after the insurance carrier has taken final action on a complete medical bill and provided an EOB except in accordance with §133.250 of this chapter (relating to Reconsideration for Payment of Medical Bills).

(g) Health care providers may correct and resubmit as a new bill an incomplete bill that has been returned by the insurance carrier.

(h) Not later than the 15th day after receipt of a request for additional medical documentation, a health care provider must submit to the insurance carrier:

(1) any requested additional medical documentation related to the charges for health care rendered; or

(2) a notice the health care provider does not possess requested medical documentation.

(i) The health care provider must indicate on the medical bill if documentation is submitted related to the medical bill.

(j) The health care provider may elect to bill the injured employee's employer if the employer has indicated a willingness to pay the medical bill or bills. Such billing is subject to the following:

(1) A health care provider who elects to submit medical bills to an employer waives, for the duration of the election period, the rights to:

(A) prompt payment, as provided by Labor Code §408.027;

(B) interest for delayed payment as provided by Labor Code §413.019; and

(2) When a health care provider bills the employer, the health care provider must submit an information copy of the bill to the insurance carrier, which clearly indicates that the information copy is not a request for payment from the insurance carrier.

(3) When a health care provider bills the employer, the health care provider must bill in accordance with the division's fee guidelines and §133.10 of this chapter (relating to Required Billing Forms/Formats).

(4) A health care provider must not submit a medical bill to an employer for charges an insurance carrier has reduced, denied, or disputed.

(k) A health care provider must not submit a medical bill to an injured employee for all or part of the charge for any of the health care provided, except as an informational copy clearly indicated on the bill, or in accordance with subsection (l) of this section. The information copy must not request payment.

(l) The health care provider may only submit a bill for payment to the injured employee in accordance with:

(1) Labor Code §413.042;

(2) Insurance Code §1305.451; or

(3) §134.504 of this title (relating to Pharmaceutical Expenses Incurred by the Injured Employee).

(m) A designated doctor must include the assignment number on the medical bill in accordance with §133.10 of this title (relating to Required Billing Forms/Formats).

(n) A designated doctor who refers the injured employee for additional testing or evaluation under §127.10 must provide the assignment number to the health care provider performing the testing or evaluation. The health care provider performing the testing or evaluation must include the assignment number on the medical bill in accordance with §133.10.

(o) This section is effective for medical bills submitted on or after June 1, 2024, including medical bills submitted as a result of an examination that was ordered or referred as the result of an order issued on or after June 1, 2024.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 23, 2024.

TRD-202400812

Kara Mace

General Counsel

Texas Department of Insurance, Division of Workers' Compensation

Effective date: March 14, 2024

Proposal publication date: December 29, 2023

For further information, please call: (512) 804-4703

SUBCHAPTER C. MEDICAL BILL PROCESSING/AUDIT BY INSURANCE CARRIER

28 TAC §133.200

STATUTORY AUTHORITY. The commissioner of workers’ compensation adopts the amendments to §133.200 under Labor Code §§413.053, 402.00111, 402.00116, and 402.061.

Labor Code §413.053 requires the commissioner by rule to establish standards of reporting and billing governing both form and content.

Labor Code §402.00111 provides that the commissioner of workers' compensation shall exercise all executive authority, including rulemaking authority under Title 5 of the Labor Code.

Labor Code §402.061 provides that the commissioner of workers' compensation shall adopt rules as necessary to implement and enforce the Texas Workers' Compensation Act.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 23, 2024.

TRD-202400813

Kara Mace

General Counsel

Texas Department of Insurance, Division of Workers' Compensation

Effective date: March 14, 2024

Proposal publication date: December 29, 2023

For further information, please call: (512) 804-4703

SUBCHAPTER G. ELECTRONIC MEDICAL BILLING, REIMBURSEMENT, AND DOCUMENTATION

28 TAC §133.502

STATUTORY AUTHORITY. The commissioner of workers’ compensation adopts the amendments to §133.502 under Labor Code §§408.0251, 413.053, 402.00111, 402.00116, and 402.061.

Labor Code §413.053 requires the commissioner by rule to establish standards of reporting and billing governing both form and content.

Labor Code §402.00111 provides that the commissioner of workers' compensation shall exercise all executive authority, including rulemaking authority under Title 5 of the Labor Code.

Labor Code §402.061 provides that the commissioner of workers' compensation shall adopt rules as necessary to implement and enforce the Texas Workers' Compensation Act.

§133.502.Electronic Medical Billing Supplemental Data Requirements.

(a) In addition to the data requirements and standards adopted under §133.500(a) of this title (relating to Electronic Formats for Electronic Medical Bill Processing), all professional, institutional or hospital, and dental electronic medical bills submitted before January 1, 2012, must contain:

(1) the telephone number of the submitter;

(2) the workers' compensation claim number assigned by the insurance carrier or, if that number is not known by the health care provider, a default value of "UNKNOWN";

(3) the injured employee's Social Security number as the subscriber member identification number;

(4) the injured employee's date of injury;

(5) the rendering health care provider's state provider license number;

(6) the referring health care provider's state provider license number;

(7) the billing provider's state provider license number, if the billing provider has a state provider license number;

(8) the attending physician's state medical license number, when applicable;

(9) the operating physician's state medical license number, when applicable;

(10) the claim supplemental information, when electronic documentation is submitted with an electronic medical bill; and

(11) the resubmission condition code, when the electronic medical bill is a duplicate, request for reconsideration, or other resubmission.

(b) In reporting the injured employee Social Security number and the state license numbers under subsection (a) of this section, health care providers must follow the data content and format requirements contained in §133.10 of this title (relating to Required Billing Forms/Formats).

(c) In addition to the data requirements contained in the standards adopted under §133.500(c) of this title, all professional, institutional or hospital, and dental electronic medical bills submitted on or after January 1, 2012, must contain:

(1) the telephone number of the submitter;

(2) the workers' compensation claim number assigned by the insurance carrier or, if that number is not known by the health care provider, a default value of "UNKNOWN";

(3) the injured employee's date of injury;

(4) the claim supplemental information, when electronic documentation is submitted with an electronic medical bill;

(5) the resubmission condition code, when the electronic medical bill is a duplicate, request for reconsideration, or other resubmission; and

(6) for a designated doctor and a health care provider performing a test or evaluation as a result of a designated doctor's referral, the assignment number in the prior authorization field.

(d) In addition to the data requirements contained in the standards adopted under §133.500 of this title, all pharmacy electronic medical bills must contain:

(1) the dispensing pharmacy's National Provider Identification number;

(2) the prescribing doctor's National Provider Identification number; and

(3) for a health care provider performing a test or evaluation as a result of a designated doctor's referral, the assignment number in the prior authorization field.

(e) In reporting the resubmission condition code under this section, the resubmission condition codes must have the definitions specified in §133.10(j) of this title.

(f) This section does not apply to paper medical bills submitted for payment under §133.10(b) of this title.

(g) This section is effective for medical bills submitted on or after June 1, 2024, including medical bills submitted as a result of an examination that was ordered or referred as the result of an order issued on or after June 1, 2024.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 23, 2024.

TRD-202400814

Kara Mace

General Counsel

Texas Department of Insurance, Division of Workers' Compensation

Effective date: March 14, 2024

Proposal publication date: December 29, 2023

For further information, please call: (512) 804-4703

CHAPTER 134. BENEFITS--GUIDELINES FOR MEDICAL SERVICES, CHARGES, AND PAYMENTS

INTRODUCTION. The Texas Department of Insurance, Division of Workers' Compensation (DWC) adopts the repeal of 28 TAC §§134.235, 134.239, and 134.240; and new and amended 28 TAC §§134.209, 134.210, 134.235, 134.239, 134.240, 134.250, and 134.260, concerning medical fee guidelines for certain workers' compensation-specific services, including designated doctor examinations, required medical examinations, work status reports, and maximum medical improvement (MMI) evaluations and impairment rating (IR) examinations by treating and referred doctors. The sections implement Texas Labor Code Chapters 408 and 413, which govern workers' compensation benefits, including medical examinations required to establish benefit entitlements, and medical review to ensure compliance with DWC rules for health care, including medical policies and fee guidelines. The DWC medical advisor recommended the changes to the commissioner of workers' compensation under Labor Code §413.0511(b). The repealed, new and amended sections are adopted without changes to the proposed text published in the December 29, 2023, issue of the Texas Register (48 TexReg 8165). The rules will not be republished.

REASONED JUSTIFICATION. The changes in the new and amended sections adjust the billing methodology and reimbursement rates for certain workers' compensation-specific services, including designated doctor examinations, required medical examinations, work status reports, and MMI evaluations and IR examinations by treating and referred doctors. They adjust the fees once by applying the Medicare Economic Index (MEI) percentage adjustment factor for the period 2009 - 2024, and then after the initial adjustment, adjust the fees annually on January 1 by applying the MEI percentage adjustment factor in §134.203(c)(2), which is how most other professional fees are adjusted annually in the system. They round the fees to whole dollars to simplify calculations and reduce errors. They eliminate unnecessary billing modifiers, eliminate a required sequence for modifiers, and replace the diagnosis-related estimate and range of motion billing methods with a single method of billing. They also create a $100 missed appointment fee and a $300 specialist fee. In addition, they eliminate tiering. For designated doctors and required medical examination doctors, all issues addressed within one examination will be paid at the established fee and not reduced.

The changes include restructuring and reorganization to move the requirements for each type of examination into a section that is specific to that type of examination, which will help to reduce the need for system participants to look in multiple different rules to find out what their obligations are. To that end, the changes repeal and replace: §134.235 to address billing and reimbursement for required medical examinations, §134.239 to clarify that the requirements for billing for work status reports align across the ordered examinations, and §134.240 to address billing and reimbursement for designated doctor examinations. The changes amend and restructure §134.250, concerning MMI and IR examinations by treating doctors, to conform with the other sections; and add new §134.260, concerning MMI and IR examinations by referred doctors, to clarify the specific provisions that apply to examinations that are conducted by authorized doctors as a result of a referral from a treating doctor under §130.1 of this title, concerning certification of MMI and evaluation of permanent impairment.

The changes are necessary to attract and retain doctors that perform certain workers' compensation-specific services, including designated doctor examinations, required medical examinations, work status reports, and MMI evaluations and IR examinations by treating and referred doctors, by addressing billing and reimbursement issues, reducing disputes, and by decreasing the administrative burden of participating in the program. Labor Code Chapter 408 entitles an employee that sustains a compensable injury to all health care reasonably required by the nature of the injury as and when needed. Specifically, the employee is entitled to health care that cures or relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment. To help determine the health care that meets those standards, the treating doctor manages and coordinates the injured employee's health care for the compensable injury, including referring the employee to a doctor authorized to determine MMI and to assign IRs when needed. The designated doctor program established under Chapter 408 provides for commissioner-ordered medical examinations to resolve any question about the impairment caused by the compensable injury, the attainment of MMI, the extent of the employee's compensable injury, whether the injured employee's disability is a direct result of the work-related injury, the ability of the employee to return to work, or other similar issues. Maintaining a viable program that ensures that injured employees can access examinations in a timely way is essential to meeting the statutory mandate of providing health care for injured employees.

Having too few doctors in the program has a negative impact on the doctors that remain in the system, injured employees, and insurance carriers. When there are too few doctors able to conduct the examinations needed to determine benefit levels, injured employees must often wait longer and travel farther to attend an examination, which can delay dispute resolution and other essential processes. DWC last adjusted reimbursement rates for workers' compensation-specific services in January 2008 (33 TexReg 364). Over the past 14 years, DWC has experienced a decline in the numbers of doctors providing workers' compensation-specific services. This decline has been particularly pronounced among designated doctors certified under Labor Code §408.1225 and providing designated doctor examinations as Labor Code §408.0041 requires, and especially among licensed medical doctors and doctors of osteopathy. In December 2022, for the entire state of Texas, there were only 63 available medical doctors, 10 doctors of osteopathic medicine, 177 doctors of chiropractic, and no doctors of podiatry, dental science, or optometry. Yet in that month, there were 1,259 designated doctor appointments for those 250 designated doctors to cover.

However, the common theme throughout the input-gathering process about how to improve the program was billing and reimbursement for certain workers' compensation-specific services, especially designated doctor examinations. Nearly every comment DWC received mentioned some combination of issues about the fees for designated doctor examinations--that they were insufficient, had not been adjusted for inflation or other economic factors in over a decade, did not take into account missed appointments or the time spent reviewing injured employees' medical records, and other similar issues. In adopting the amendments to Chapter 127 and §180.23, DWC stated that billing and reimbursement issues would be addressed in a separate rule project. As a result, the changes in this rule proposal are another part of the project, and are necessary to account for past and future inflation, examination complexity, and other economic factors that affect participation in the designated doctor program.

Labor Code Chapter 408 governs workers' compensation benefits. It entitles an injured employee that sustains a compensable injury to all health care reasonably required by the nature of the injury as and when needed. It requires a variety of workers' compensation-specific services, including required medical examinations; designated doctor examinations; MMI evaluations and IR examinations; and return-to-work and evaluation of medical care examinations.

Labor Code Chapter 413, Subchapter B, Medical Services and Fees, requires in part that the commissioner of workers' compensation adopt health care reimbursement policies and guidelines, develop one or more conversion factors or other payment adjustment factors, and provide for reasonable fees for the evaluation and management of care. Fee guidelines must be fair and reasonable and designed to ensure the quality of medical care and to achieve effective medical cost control. Medical policies and guidelines must be designed to ensure the quality of medical care and to achieve effective medical cost control; designed to enhance a timely and appropriate return to work; and consistent with §§413.013, 413.020, 413.052, and 413.053.

The changes are necessary to comply with the mandates for administering the workers' compensation benefit and fee system in Labor Code Chapters 408 and 413. They also include nonsubstantive editorial and formatting changes throughout that make updates for plain language and agency style to improve the rule's clarity.

Section 134.209. The amendments to §134.209 add references to new §134.260 and clarify that the new and amended sections apply to workers' compensation-specific codes, services, and programs provided on or after June 1, 2024. Amending §134.209 is necessary to conform §134.209 to the new and amended sections and ensure that the rules are accurate.

Section 134.210. The amendments to §134.210 clarify that reimbursement for a missed appointment under §134.240 does not qualify for the 10% incentive payment for services performed in designated workers' compensation underserved areas. The amendments provide that fees established in §§134.235, 134.240, 134.250, and 134.260 of this title will be:

- adjusted once by applying the MEI percentage adjustment factor for the period 2009 - 2024;

- adjusted annually by applying the MEI percentage adjustment factor in §134.203(c)(2);

- rounded to whole dollars; and

- effective on January 1 of each new calendar year.

The amendments clarify that, for services provided under §§134.235, 134.240, 134.250, or 134.260, health care providers must bill and be reimbursed the maximum allowable reimbursement (MAR).

In addition, the amendments simplify the modifiers that health care providers must use when billing professional medical services for correct coding, reporting, billing, and reimbursement based on procedure codes. The amendments add modifier 25 and specify that it must be added to Current Procedural Terminology (CPT) code 99456 for designated doctor examinations involving one or more of the diagnoses listed in §127.130(b)(9)(B) - (I) of this title, including traumatic brain injuries, spinal cord injuries and diagnoses, severe burns, complex regional pain syndrome, joint dislocation, one or more fractures with vascular injury, one or more pelvis fractures, multiple rib fractures, complicated infectious diseases requiring hospitalization or prolonged intravenous antibiotics, chemical exposure, and heart or cardiovascular conditions. The amendments add modifier 52 and specify that it must be added to CPT code 99456 when DWC ordered the designated doctor to perform an examination of an injured employee, and the injured employee failed to attend the examination. The amendments correct an error that listed the incorrect CPT code for multiple IRs. The amendments delete the RE, SP, TC, and WP modifiers. The amendments realign the "V" modifiers that must be added to CPT code 99455 by deleting V1 and V2 and replacing the more subjective descriptors ("minimal," "self-limited," "minor," "low to moderate," and "moderate to high severity") with references to CPT code standards. For example, per the amendments, modifier V3, treating doctor evaluation of MMI, must now be added to CPT code 99455 when the office visit level of service is equal to CPT code 99213. The amendments also include CPT code 97546 for modifiers WC (work conditioning) and WH (work hardening).

Amending §134.210 is necessary to decrease administrative burdens by eliminating unnecessary billing modifiers and eliminating a required sequence for modifiers, to update the reimbursement rates in compliance with DWC's statutory obligations to maintain the workers' compensation benefit system and set reasonable reimbursement policies and guidelines, and to attract and retain doctors in the system. As fees were last adjusted in 2008, an increase to account for the intervening years of inflation is indicated, and the amendment to §134.210 that adjusts fees annually to account for future inflation is necessary to align with the annual updates in §134.203 of this chapter, concerning the medical fee guideline for professional services.

Section 134.235. New §134.235 renames the section "Required Medical Examinations" to capture the types of examinations more accurately than just the previous title of "Return to Work/Evaluation of Medical Care." It contains statutory references, requires that each examination and its individual billable components be reimbursed separately, and describes the billing methods and reimbursement amounts for a required medical examination (RME) doctor examining an injured employee for MMI or IR. Those billing methods and requirements were previously in §134.250 of this title, but have been moved to new §134.235 to allow RME doctors to find their billing requirements in one section. In addition, new §134.235 describes what the MMI or IR examination must include, specifies increased reimbursement rates for MMI evaluations and IR examinations for musculoskeletal and non-musculoskeletal body areas, and, for testing that is not outlined in the American Medical Association (AMA) guides, requires billing and reimbursement for the appropriate testing CPT code or codes according to the applicable fee guideline in addition to the fees for the MMI and IR examinations. New §134.235 sets increased rates for examinations to determine extent of injury, disability, return to work, other similar issues, and appropriateness of health care. In addition, for required medical examination doctors, all issues addressed within one examination will be paid at the established fee and not reduced. Finally, new §134.235 sets billing and reimbursement requirements for when the RME doctor refers testing to a specialist. It also requires documentation of the referral.

Repealing §134.235 and adopting new §134.235 is necessary to consolidate RME doctors' billing and reimbursement requirements into one section to increase efficiency and ease of use and decrease the possibility of errors, to update the reimbursement rates in compliance with DWC's statutory obligations to maintain the workers' compensation benefit system and set reasonable reimbursement policies and guidelines, and to attract and retain doctors in the system.

Section 134.239. New §134.239 states that work status reports may not be billed or reimbursed separately when they are completed as a component of an ordered examination. Repealing §134.239 and adopting new §134.239 is necessary to update references to conform with the restructured sections and clarify the language. The change does not affect how work status reports are billed in practice.

Section 134.240. New §134.240 specifies billing and reimbursement requirements for designated doctor examinations. It contains statutory references, provides for a $100 missed appointment fee, requires that each examination and its individual billable components be reimbursed separately, and describes the billing methods and reimbursement amounts for a designated doctor examination. In addition, new §134.240 sets the total MAR for an MMI or IR examination, describes what the MMI or IR examination must include and how it must be billed and reimbursed, specifies increased reimbursement rates for MMI evaluations and IR examinations for musculoskeletal and non-musculoskeletal body areas, and, for testing that is not outlined in the AMA guides, requires billing and reimbursement for the appropriate testing CPT code or codes according to the applicable fee guideline in addition to the fees for the MMI and IR examinations. New §134.240 sets increased rates for examinations to determine extent of injury, disability, return to work, and other similar issues. New §134.240 also sets billing and reimbursement requirements for when the designated doctor refers testing to a specialist, and it requires documentation of the referral. It specifies that the 95-day period for timely submission of the designated doctor bill for the examination begins on the date of service of the additional testing or evaluation, and that the designated doctor and any referral health care providers must include the DWC-provided assignment number in the prior authorization field, per §133.10(f)(1)(N) of this title. In addition, for designated doctors, all issues addressed within one examination will be paid at the established fee and not reduced. Finally, new §134.240 sets a $300 specialist fee in addition to the examination fee for certain specialized diagnoses.

Based on feedback from many designated doctors in the system, DWC included the missed appointment fee to recognize and compensate, at least in part, designated doctors that schedule an examination appointment with an injured employee, do the required medical record review, prepare for the examination, travel to the appointment, and then have the injured employee not attend the appointment. In the current system, those designated doctors would not be compensated for that missed appointment or the work they performed to prepare for it. The missed appointment fee acknowledges the work the designated doctors are required to do to prepare for an examination.

The specialist fee also acknowledges designated doctors' time and effort spent in gaining specialty certifications and expertise. It reimburses board-certified physicians that participate in the designated doctor program and examine injured employees with certain complex injuries or diagnoses. DWC expects that the specialist fee will help increase the numbers of board-certified physicians in the program, which will reduce delays in examinations for employees with complex injuries or diagnoses and contribute to overall system health and efficiency.

Repealing §134.240 and adopting new §134.240 is necessary to consolidate designated doctors' billing and reimbursement requirements into one section to increase efficiency and ease of use and decrease the possibility of errors. It is also necessary to put in place a missed appointment fee to compensate designated doctors for the time and expense they incur in reviewing medical records and traveling to the exam location when the injured employee does not attend the examination; and to set a specialist fee for examinations that require particular board certifications and expertise. In addition, repealing §134.240 and adopting new §134.240 is necessary to update the reimbursement rates in compliance with DWC's statutory obligations to maintain the workers' compensation benefit system and set reasonable reimbursement policies and guidelines. It is also necessary to attract and retain doctors in the system.

Section 134.250. The amendments to §134.250 rename the section "Maximum Medical Improvement Evaluations and Impairment Rating Examinations by Treating Doctors" to reflect the restructuring in this rule. The amendments move the requirements for required medical examinations into new §134.235, for designated doctors into new §134.240, and for referred doctors into new §134.260. The amendments make §134.250 specific to treating doctors, so treating doctors will be able to find their billing requirements in one section. They specify the billing methods and reimbursement requirements for MMI and IR examinations, and they permit a treating doctor that is not authorized to assign an IR to refer the injured employee to an authorized doctor for the examination and certification of MMI and IR, specifying that the referred doctor must bill under §134.260. In addition, the amendments to §134.250 specify increased reimbursement rates for MMI evaluations and IR examinations for musculoskeletal and non-musculoskeletal body areas, and, for testing that is not outlined in the AMA guides, require billing and reimbursement for the appropriate testing CPT code or codes according to the applicable fee guideline in addition to the fees for examination by the treating doctor. Finally, the amendments increase the reimbursement rate for a treating doctor reviewing the certification of MMI and assignment of IR performed by another doctor (referred doctor). Amending §134.250 is necessary to consolidate treating doctors' billing and reimbursement requirements into one section to increase efficiency and ease of use and decrease the possibility of errors, to update the reimbursement rates in compliance with DWC's statutory obligations to maintain the workers' compensation benefit system and set reasonable reimbursement policies and guidelines, and to attract and retain doctors in the system.

Section 134.260. New §134.260 concerns MMI evaluations and IR examinations by referred doctors. It describes what the MMI or IR examination must include, specifies increased reimbursement rates for MMI evaluations and IR examinations for musculoskeletal and non-musculoskeletal body areas, and, for testing that is not outlined in the AMA guides, requires billing and reimbursement for the appropriate testing CPT code or codes according to the applicable fee guideline in addition to the fees for the MMI and IR examinations. Adopting new §134.260 is necessary to consolidate referred doctors' billing and reimbursement requirements into one section to increase efficiency and ease of use and decrease the possibility of errors, to update the reimbursement rates in compliance with DWC's statutory obligations to maintain the workers' compensation benefit system and set reasonable reimbursement policies and guidelines, and to attract and retain doctors in the system.

SUMMARY OF COMMENTS AND AGENCY RESPONSE.

Commenters: DWC received 30 written comments by the January 29, 2024, deadline, and three oral comments at the January 23, 2024, hearing. Because DWC published the Chapter 133 proposal and the Chapter 134 proposal at the same time and discussed both proposals in the hearing, some commenters submitted comments specifically on both proposals, while others acknowledged both proposals but only commented specifically on one. Three acknowledged both proposals in their comments but did not specifically state a position on the Chapter 134 proposal. Commenters specifically in support of the Chapter 134 proposal were: the Office of Injured Employee Counsel and two individuals. Commenters specifically in support of the Chapter 134 proposal with changes were: Texas Mutual Insurance Company; the Insurance Council of Texas; the Texas Chiropractic Association; Texas Independent Evaluators, LLC; and 19 individuals. No commenters were against the Chapter 134 proposal. Some commenters included logistical or practical questions or examples about how the rules will function once adopted. DWC will address those questions in the upcoming training sessions about how to comply with the updated rules.

Comment on Chapter 134 (notice of examination). A commenter stated that DWC should send an automated text and email in addition to a physical letter to claimants about the designated doctor examination, and that the days of snail mail are over.

Agency Response to Comment on Chapter 134 (notice of examination). DWC appreciates the comment but declines to make this change because it is out of scope for this rule project.

Comment on §134.240 (missed appointment fee). A commenter stated that the missed appointment fee should be recouped from the injured employee's temporary income benefits (TIBs), and that the insurance carrier should not be financially responsible for the claimant's choice to not attend.

Agency Response to Comment on §134.240 (missed appointment fee). DWC appreciates the comment. The missed appointment fee is necessary to compensate designated doctors for the work they are required to do in advance of an ordered examination, even if the injured employee does not attend the appointment. Section 127.25 of this title, Failure to Attend a Designated Doctor Examination, allows an insurance carrier to suspend TIBs if an injured employee fails, without good cause, to attend a designated doctor examination or a referral examination under §127.10(c) of this title, General Procedures for Designated Doctor Examinations.

Comments on §134.240 (missed appointment fee). Two commenters stated that they appreciated the new no-show fee.

Agency Response to Comments on §134.240 (missed appointment fee). DWC appreciates the comments.

Comments on §134.240 (missed appointment fee). Three commenters stated that the no-show fee should be higher. One stated that the minimum amount should be $200. Another stated that the minimum amount should be $250.

Agency Response to Comments on §134.240 (missed appointment fee). DWC appreciates the comments but declines to make the change at this time because of the significant one-time fee increases and annual inflation adjustments in this rule.

Comments on §134.240 (missed appointment fee). Fourteen commenters stated that DWC should provide a broken or missed appointment fee for all designated doctors, required medical examination doctors, treating doctors, and referral doctors. Three of those commenters also stated that DWC should include the same increase for MMI, IR, and other services.

Agency Response to Comments on §134.240 (missed appointment fee). DWC appreciates the comments but declines to make the change. DWC's rules do not require travel to appointments, missed or attended. In addition, designated doctors are the only ones that are required by rule to review medical records from the treating doctor and insurance carrier before conducting the examination. That is distinct from an MMI or IR examination, where the examination itself includes a review of the records and films. The missed appointment fee is intended to compensate designated doctors for the work the rule requires them to perform before they go to perform the examination, only to find that they cannot perform the examination--and get paid for it--because the injured employee is not there.

Comment on §134.240 (missed appointment fee). One commenter stated that the $100 missed appointment fee proposed in §134.240 is consistent with the amount of the missed appointment fee proposed as part of House Bill (HB) 2702, 88th Legislature, Regular Session (2023), which failed to pass. The commenter stated that because the proposed rules include significant fee increases for all examinations, which will have a sizable cost impact on the workers' compensation system, the commenter did not support a fee amount greater than that which was proposed.

Agency Response to Comment on §134.240 (missed appointment fee). DWC appreciates the comment and agrees that the $100 missed appointment fee is appropriate.

Comments on Chapter 134 (record review fee). Three commenters stated that DWC needs to adopt a record review fee. One of those commenters stated that the fee should be $25 per 50 pages for records totaling more than 200 pages, and suggested that insurance carriers should have to pay extra for sending duplicated, useless, and out-of-order pages.

Agency Response to Comments on Chapter 134 (record review fee). DWC appreciates the comments but declines to make the change. DWC explored that option during the informal draft process, but found that a record review fee is not logistically feasible at this time. In addition, penalizing insurance carriers for sending duplicate pages is not in the scope of this rule. If an insurance carrier is not complying with the requirement to send records, or is abusing the system by sending voluminous, nonresponsive material, DWC encourages the doctor to file a complaint.

Comment on Chapter 134 (print fee). A commenter recommended that DWC allow a designated doctor to bill a print fee for medical records.

Agency Response to Comment on Chapter 134 (print fee). DWC appreciates the comment but declines to make the change, as it is not in scope for this rule. In addition, printing is not necessary to comply with the review requirement in the rule.

Comment on Chapter 134 (retroactive effect). A commenter asked DWC to consider making the fee schedule increase retroactive to January 1, 2024.

Agency Response to Comment on Chapter 134 (retroactive effect). DWC appreciates the comment but declines to make the change. System participants need to be able to program their systems and prepare for compliance in advance of the effective date. Making medical billing changes retroactive would increase medical fee disputes exponentially. In addition, the system does not have a practical way to process amended bills on that scale retroactively.

Comments on Chapter 134 (fee amounts). Two commenters stated that fee amounts should be higher.

Agency Response to Comments on Chapter 134 (fee amounts). DWC appreciates the comments but declines to make the change, as this rule has already increased fees significantly across the board to ensure fair compensation, and the fees will be adjusted annually to account for inflation.

Comments on Chapter 134 (fee amounts). Three commenters stated that the fee increases are fair as proposed. One of those commenters would not support a fee increase greater than what was proposed, and that going forward, the application of the annual adjustment factor will ensure that fees are adjusted as needed in the future. One commenter expressed support for increasing designated doctor compensation via the MEI, adjusting compensation annually to reflect changes in the MEI, and compensating multiple examinations performed concurrently without a discount.

Agency Response to Comments on Chapter 134 (fee amounts). DWC appreciates the comments and agrees.

Comments on Chapter 134 (extent of injury). Fifteen commenters stated that extent-of-injury examinations should be paid more. Thirteen of those commenters recommended reimbursing $50 for each condition after the initial fee when a designated doctor or a required medical examination doctor is required to answer extent-of-injury questions. One of those commenters recommended that for each disputed condition that has to be addressed after the initial condition, an additional $150 should be allowed.

Agency Response to Comments on Chapter 134 (extent of injury). DWC appreciates the comments but declines to make the changes at this time. As proposed, the rule already increased the fees for extent-of-injury examinations significantly, and the fees will be adjusted annually to account for inflation. In addition, the rule eliminates the tiering discount for designated doctors and required medical examination doctors, ensuring that all issues addressed within one examination will be paid at the established fee and not reduced. DWC believes that these changes will ensure that doctors are compensated fairly for extent-of-injury examinations.

Comments on §134.210 (MEI annual adjustment). Two commenters expressed uncertainty about how the MEI is calculated. One of those commenters was concerned about attaching fees to Medicare and wanted to be sure that, if the Medicare rate trended down in the future, the fees would not decrease.

Agency Response to Comments on §134.210 (MEI annual adjustment). DWC appreciates the comments, and offers the following explanation of the MEI, but declines to adjust the rule to remove the MEI factor. DWC sets its own fee schedule and modifies it based on the MEI to allow the fees to increase in relation to changes in the prices of goods and services, including physician-specific costs and compensation.

The MEI is a measure of practice cost inflation that was developed in 1975 and is updated quarterly to estimate annual changes in physicians' operating costs and establish appropriate Medicare physician payment updates. It consists of two categories: physician practice costs and physician compensation. The physician practice costs portion of the current MEI includes components for nonphysician compensation, such as fringe benefits; medical supplies; professional liability insurance; and other expenses, including other professional services. Medicare assigns each component a weight and uses various proxy indices to estimate price changes. The physician compensation category of the MEI reflects increases in general earnings and is currently proxied by changes in the wages and benefits of professional occupations in the United States from the Bureau of Labor Statistics. Medicare then adjusts the change in the combined practice costs and physician compensation components by the 10-year average of multifactor productivity for the economy.

Comments on §134.210 (MEI annual adjustment). Fourteen commenters stated that DWC should retroactively include the MEI percentage adjustment factor for the years 2004 - 2008.

Agency Response to Comments on §134.210 (MEI annual adjustment). DWC appreciates the comments but declines to make the change. When DWC adopted amended medical reimbursement policies and medical fee guidelines in §§134.203 and 134.204 (proposed 32 TexReg 6966, October 5, 2007, with corrections at 32 TexReg 7329, October 12, 2007, and adopted 33 TexReg 364, January 11, 2008), the order stated that the commissioner adopted them to comply with Labor Code §413.012, which directs fee guidelines to be reviewed and revised to reflect fair and reasonable fees and to reflect medical treatment or ranges of treatment that are reasonable and necessary at the time the review and revision are conducted. DWC, in consultation with the medical advisor, considered the change in the MEI from 2002 to 2007 and found that, at the time of adoption, the fee for designated doctor activities was fair and reasonable, after consideration of duties involved, including the additional duties HB 7, 79th Legislature, Regular Session (2005) added to Labor Code §408.0041.

Comment on §134.210 (MEI annual adjustment). One commenter stated, "While we understand the methodology for the one-time increase to account for the lack of fee increases since 2009, some members have expressed concern about the one-time large fee increase referenced in proposed 28 TAC 134.210(a)(1)(A). In addition to DDs, this increase would also apply to all RMEs under new rule 134.235. The purpose of this increase is because of a decline in DDs between 2009 - 2023. However, the proposed revisions in new rule 134.210(a)(1)(A) require an increase for current doctors using a MEI percentage adjustment for all years between 2009 - 2024. This is an average increase of 56% and seems to conflict with statutory provisions requiring DWC adjustment of fees every two years. See Labor Code 413.012."

Agency Response to Comment on §134.210 (MEI annual adjustment). DWC appreciates the comment but disagrees with the assertion that the one-time and annual adjustments are inappropriate or excessive and conflict with Labor Code §413.012. For the affected programs, DWC estimates that based on calendar year (CY) 2022 activity, the total system impact from the changes will be about $9 million over CY 2022 reimbursement. That includes a one-time initial adjustment in rates based on the accrued changes in the MEI since the rates were last adopted, plus costs associated with removing tiering, adding the missed appointment fee, and adding the specialist fee. For the past five years, the annual change in the MEI has ranged from 1.4% to 4.6%, averaging 2.8%. Based on this estimated average future year over previous year percentage, DWC estimates the increase in reimbursement to be a little more than $1 million per year. To help offset costs for teaching and training staff on the changes, DWC expects to provide free training presentations with specific billing examples after the rule is adopted but before it becomes effective.

The one-time adjustment is necessary to achieve fair and reasonable fees, and the annual inflation adjustment is necessary to ensure that future one-time large increases won't be needed. Labor Code §413.012 requires DWC to review medical policies and fee guidelines at least every two years to reflect fair and reasonable fees and medical treatment or ranges of treatment that are reasonable and necessary at the time the review and revision is conducted. DWC reviewed billing methodologies and reimbursement amounts to ensure that these medical policies and fee guidelines align with the need to attract and retain an adequate number of qualified designated doctors, RME doctors, and MMI and IR-certified doctors participating in the workers' compensation system.

Comment on §134.240 (specialist fee). Two commenters asked DWC to clarify what the $300 specialist fee is. Another commenter thought that DWC had confused "specialist" with "complex exam."

Agency Response to Comment on §134.240 (specialist fee). DWC appreciates the comment. The specialist fee is in §134.240(g)(3). It applies when DWC orders a designated doctor to perform an examination of an injured employee with one or more of the diagnoses listed in §127.130(b)(9)(B) - (I) of this title, Qualification Standards for Designated Doctor Examinations.

Comments on §134.240 (specialist fee). Three commenters recommended that DWC eliminate the additional $300 for specialists in §134.240(g)(3).

Agency Response to Comments on §134.240 (specialist fee). DWC disagrees with the recommendation. The specialist fee acknowledges designated doctors' time and effort spent in gaining specialty certifications and expertise. It reimburses board-certified physicians that participate in the designated doctor program and examine injured employees with certain complex injuries or diagnoses. The specialist fee is a necessary incentive for board-certified physicians to participate in the program, which reduces delays in examinations for employees with complex injuries or diagnoses and contributes to overall system health and efficiency.

Comments on §134.240 (specialist fee and tiering). One commenter stated that the extra costs incurred for specialist declaration should be compensated accordingly at an appropriate rate. With regard to eliminating tiering, the commenter stated that it is unfair to compensate differently for the same work product based on title (unless it is a specialist fee, as noted above). Another commenter expressed support for compensating multiple examinations performed concurrently without a discount.

Agency Response to Comments on §134.240 (specialist fee and tiering). DWC appreciates the comment and agrees that the specialist fee is necessary and appropriate. DWC also agrees that eliminating tiering is necessary so that, for designated doctors and required medical examination doctors, all issues addressed within one examination are paid at the established fee and not reduced.

Comment on Chapter 134 (tiering). One commenter recommended that DWC retain tiered reimbursement as set out in current rule §134.240, which provides that the first issue examined by a DD beyond MMI or IR will be paid at 100% of the fee guideline, the second issue will be paid at 50% of the fee guideline, and subsequent issues will be paid at 25% of the fee guideline.

Agency Response to Comment on Chapter 134 (tiering). DWC appreciates the comment but declines to make the change. Eliminating tiering is necessary so that, for designated doctors and required medical examination doctors, all issues addressed within one examination are paid at the established fee and not reduced. Compensating designated doctors and required medical examination doctors for the actual work performed, instead of imposing a discount for examining an issue just because the patient happens to have other issues as well, is fair and reasonable, in addition to being necessary to encourage participating providers to remain in the program and entice more providers to participate.

Comment on Chapter 134 (IR spine and MMI). One commenter stated that the fee for IR spine is too low. The commenter said that sometimes they have cases with multiple fusions that also fail back surgery, and that the fee should be higher because they have to use the diagnosis-related estimate model but still have to do all range of motion of the spine. The commenter also stated that the fee for "none MMI" evaluation should be much higher--more than just $350--since they have to do the examination, make a decision at the end, and review all the records.

Agency Response to Comment on Chapter 134 (IR spine and MMI). DWC appreciates the comment but declines to make the changes. The rule replaces the diagnosis-related estimate and range-of-motion billing methods with a single method of billing. In addition, the rules provide for a significant one-time increase in the fees established in §§134.235, 134.240, 134.250, and 134.260 by applying the MEI percentage adjustment factor for the period 2009 - 2024, as well as an annual MEI adjustment in those fees going forward. DWC made those adjustments to comply with DWC's statutory obligations to maintain the workers' compensation benefit system and set reasonable reimbursement policies and guidelines, and to attract and retain doctors in the system.

Comment on Chapter 134 (clarification letter). One commenter asked DWC to consider a small fee of $50 for a clarification letter. The commenter stated that in federal cases for any clarification letter they have a fee of $75 to resolve issues with any clarification response.

Agency Response to Comment on Chapter 134 (clarification letter). DWC appreciates the comment but declines to make the change, as it is out of scope for this rule project. In addition, clarification letters are not part of an examination, and DWC does not find it appropriate to charge for clarifying a report that should have been written clearly.

Comment on Chapter 134 (car accidents). One commenter asked whether there is a better system for payment in the case of patients in a car accident where workers' compensation applies. The commenter stated that those accidents always show multiple body parts, such as shoulder, elbow, wrist, knee, hip, and spine, and today the system is only based on three body parts maximum.

Agency Response to Comment on Chapter 134 (car accidents). DWC appreciates the comment but declines to make the change, as it is out of scope for this rule project. In addition, changing the payment system for car accidents in workers' compensation would create many medical fee disputes and would be inconsistent with the way all other examinations are paid.

Comment on Testing. One commenter stated that DWC should continue to require doctors to test, instead of accepting all doctors who took the test some 10 years ago.

Agency Response to Comment on Testing. DWC appreciates the comment but declines to make the change, as it is out of scope for this rule project.

Comment on Chapter 134 (effective date). One commenter estimated that a minimum of 90 days after the rules become effective will be needed to implement the proposed changes.

Agency Response to Comment on Chapter 134 (effective date). DWC appreciates the comment and has attempted to ensure a minimum of 90 days' lead time between publication of the order and the date the rules become effective.

Comment on Chapter 134. One commenter expressed support and appreciation for DWC's efforts to provide free training for insurance carriers and health care providers on the new billing requirements and reimbursement rates.

Agency Response to Comment on Chapter 134. DWC appreciates the comment.

Comment on §134.210 (incentive payment). One commenter stated that they support the proposed amendments to §§134.210 and 134.240, which would exclude the proposed designated doctor missed appointment fee from the §134.2 incentive payment. The commenter requested that DWC clarify that the HPSA incentive payment, the physician scarcity bonus, and the §134.2 incentive payment be exempted from application to all designated doctor examination fees, including fees provided for in §134.240(g)(3) authorizing a $300 additional fee for examinations involving diagnoses listed in §127.130(b)(9)(B) - (I) and the missed appointment fees provided for in §134.240. The commenter stated that without this clarification, insurance carriers would be left to interpret the existing statute and rules without guidance, which could lead to unnecessary medical fee disputes.

Agency Response to Comment on §134.210 (incentive payment). DWC appreciates the comment but declines to make this change. Section 134.210(b)(3), as proposed and adopted, applies the 10% incentive payment to the maximum allowable reimbursement (MAR) for services that are performed in designated workers' compensation underserved areas and that are outlined in §§134.220 (case management services), 134.225 (functional capacity evaluations), 134.235 (required medical examinations), 134.240 (designated doctor examinations), 134.250 (MMI and IR examinations by treating doctors), 134.260 (MMI evaluations and IR examinations by referred doctors), and §134.210(d), which refers to services in §§134.215, 134.220, 134.225, and 134.230 where there is no negotiated or contracted amount that complies with Labor Code §413.011. It specifically exempts reimbursement for a missed appointment under §134.240 from the 10% incentive payment.

Comment on §134.210 (annual adjustment factor). One commenter expressed support for the addition of an annual adjustment factor, but stated that the annual adjustment factor should not be applied to the missed appointment fee and the §127.130 expert exam fees. The commenter recommended that §134.210 be revised to exclude the application of the annual adjustment factor to reimbursements for expert examinations under §134.240(g)(3) and the missed appointment fees provided for in §134.240. The commenter also recommended that DWC publish the MEI-adjusted designated doctor, required medical examination doctor, treating doctor, and referral doctor examination fees each year in the same way it publishes the MEI adjuster professional fee conversion factors to ensure that all insurance carriers pay the correct reimbursement rates.

Agency Response to Comment on §134.210 (annual adjustment factor). DWC appreciates the comment but declines to exclude the specialist fee in §134.240(g)(3) from the annual adjustment based on the MEI, because it would increase the complexity of the bill and could lead to more errors. The missed appointment fee, unlike the specialist fee, is a one-time, one-line fee that would not apply to every examination and would not be billed as part of the examination. For example, if the designated doctor in the underserved area is also evaluating MMI and IR, and the injury is a traumatic brain injury, so the $300 specialist fee applies, excluding the 10% incentive payment from the specialist fee but not from other components of the examination would be confusing and time-consuming. In addition, the purpose of the annual adjustment is to ensure that payments keep pace with inflation, preventing the need for another comprehensive update to the fees in the future, and excepting the $300 specialist fee does not accomplish this goal. To the commenter's other recommendation, which does not require a change in the rule text--DWC agrees and plans to publish the MEI-adjusted designated doctor, required medical examination doctor, treating doctor, and referral doctor examination fees each year in the same way it publishes the MEI adjuster professional fee conversion factors.

Comment on §134.235 (reference). One commenter suggested that §134.235(a) be revised to include a reference to Labor Code §408.0044.

Agency Response to Comment on §134.235 (reference). DWC appreciates the comment but declines to make the change because Labor Code §408.004 lists §§408.0043 and 408.0045, but does not list §408.0044.

Comment on Chapter 134 (modifiers). One commenter recommended that DWC create modifiers for various types of required medical examinations and retain the current modifier for appropriateness of health examinations.

Agency Response to Comment on Chapter 134 (modifiers). DWC appreciates the comment but declines to make those changes at this time. DWC understands that the suggested modifier, RE, exists, but is not used explicitly for required medical exams; and if it were required as the commenter suggests, it would not be used in billing, but instead only in an internal tracking system. One of DWC's goals in updating the billing and reimbursement rules in Chapters 133 and 134 has been to reduce administrative burdens by simplifying the modifiers. Adding new modifier requirements would be counter to this goal.

SUBCHAPTER C. MEDICAL FEE GUIDELINES

28 TAC §§134.209, 134.210, 134.235, 134.239, 134.240, 134.250, 134.260

STATUTORY AUTHORITY. The commissioner of workers' compensation adopts amended §§134.209, 134.210, and 134.250; and new §§134.235, 134.239, 134.240, and 134.260 under Labor Code §§408.004, 408.0041, 408.021, 408.023, 408.0251, 408.0252, 408.1225, 413.007, 413.011, 413.012, 413.015, 413.0511, 413.053, 402.00111, 402.00116, and 402.061.

Labor Code §413.053 requires the commissioner by rule to establish standards of reporting and billing governing both form and content.

Labor Code §402.00111 provides that the commissioner of workers' compensation shall exercise all executive authority, including rulemaking authority under Title 5 of the Labor Code.

Labor Code §402.061 provides that the commissioner of workers' compensation shall adopt rules as necessary to implement and enforce the Texas Workers' Compensation Act.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 23, 2024.

TRD-202400816

Kara Mace

General Counsel

Texas Department of Insurance, Division of Workers' Compensation

Effective date: June 1, 2024

Proposal publication date: December 29, 2023

For further information, please call: (512) 804-4703

28 TAC §§134.235, 134.239, 134.240

STATUTORY AUTHORITY. The commissioner of workers' compensation adopts the repeal of §§134.235, 134.239, and 134.240 under Labor Code Chapter 408; Chapter 413, Subchapter B; and §§402.00111, 402.0016, and 402.061.

Labor Code §402.00111 provides that the commissioner of workers' compensation shall exercise all executive authority, including rulemaking authority under Title 5 of the Labor Code.

Labor Code §402.061 provides that the commissioner of workers' compensation shall adopt rules as necessary to implement and enforce the Texas Workers' Compensation Act.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 23, 2024.

TRD-202400817

Kara Mace

General Counsel

Texas Department of Insurance, Division of Workers' Compensation

Effective date: June 1, 2024

Proposal publication date: December 29, 2023

For further information, please call: (512) 804-4703