Texas Register August 26, 2022 Volume: 47 Number: 34

Texas Register Table of Contents

1 The Governor
- - 1.0.1 Appointments Re:
    - 1.0.1.1 The Governor appointed one individual to the Correctional Managed Health Care Committee.
2 Texas Health and Human Services Commission
- - 2.0.1 Proposed Rules Re:
    - 2.0.1.1 New 26 TAC §§110.1, 110.3, 110.5, 110.7, 110.9, 110.11, 110.13, 110.15, moving appeals for the Home and Community-based Services (HCS) and Texas Home Living (TxHmL) from the HHSV Appeals Division to the Texas State Office of Administrative Hearings (SOAH).
  - 2.0.2 In Addition Re:
3 Department of Aging and Disability Services
- - 3.0.1 Proposed Rules Re:
    - 3.0.1.1 Repealing 40 TAC §§91.1 – 91.8, to realign and reorganize the rules following the abolition of the Department of Aging and Disability Services (DADS).
4 State Board of Dental Examiners
- - 4.0.1 Adopted Rules Re:
    - 4.0.1.1 Amending 22 TAC §104.2 to add Dental Risk Solutions, LLC as a Board approved continuing education course provider.
    - 4.0.1.2 Repealing 22 TAC §108.25 to eliminate unnecessary repetitive statutory language.
5 Texas Department of Insurance
- - 5.0.1 Adopted Rules Re:

The Governor

Appointments Re:

The Governor appointed one individual to the Correctional Managed Health Care Committee.

Appointments for August 11, 2022

Appointed to the Correctional Managed Health Care Committee for a term to expire February 1, 2023:

Kristen S. “Kris” Coons of San Antonio, Texas (replacing Preston Johnson, Jr. of Sugar Land, who resigned).

Texas Health and Human Services Commission

Proposed Rules Re:

New 26 TAC §§110.1, 110.3, 110.5, 110.7, 110.9, 110.11, 110.13, 110.15, moving appeals for the Home and Community-based Services (HCS) and Texas Home Living (TxHmL) from the HHSV Appeals Division to the Texas State Office of Administrative Hearings (SOAH).

CHAPTER 110. HEARINGS UNDER THE ADMINSTRATIVE PROCEDURE ACT
26 TAC §§110.1, 110.3, 110.5, 110.7, 110.9, 110.11, 110.13, 110.15

OVERVIEW

As required by Texas Government Code §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all its functions were transferred to the Texas Health and Human Services Commission (HHSC) in accordance with Texas Government Code §531.0201 and §531.02011. Rules of the former DADS are codified in Title 40, Texas Administrative Code (TAC), Part 1, and will be repealed or administratively transferred to 26 TAC, Health and Human Services, as appropriate. Until such action is taken, the rules in 40 TAC, Part 1, govern functions previously performed by DADS that have transferred to HHSC. Texas Government Code §531.0055 requires the Executive Commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services system, including rules in 40 TAC, Part 1. Therefore, the Executive Commissioner of HHSC proposes new 26 TAC, Part 1, Chapter 110, concerning Hearings Under the Administrative Procedure Act, comprised of §§110.1, 110.3, 110.5, 110.7, 110.9, 110,11, 110.13, and 110.15.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to move appeals for Home and Community-based Services (HCS) and Texas Home Living (TxHmL) administrative penalties, contract terminations, vendor holds, recoupments, and denial of payment appeal cases from the HHSC Appeals Division to the Texas State Office of Administrative Hearings (SOAH). The proposal makes HCS and TxHmL consistent with other long-term care regulation programs that are heard by SOAH. The project will also update outdated rule references, change references to DADS to HHSC, and improve readability.

SECTION-BY-SECTION SUMMARY

The proposed new rules relocate content from the proposed repeal of 40 TAC, Chapter 91, to 26 TAC, Chapter 110, as well as change references to DADS to HHSC, change references to Commissioner to Executive Commissioner, update outdated rule references, and improve readability.
Proposed new §110.5(a)(5) and (6) adds the HCS and TxHmL programs to the list of contested cases heard by SOAH.
Proposed new §110.5(a)(21) clarifies that both long-term care regulation and provider investigations employee misconduct registry cases will be heard by SOAH.

In Addition Re:

Public Notice – DBMD Waiver

OVERVIEW

The Texas Health and Human Services Commission (HHSC) is submitting a request to the Centers for Medicare & Medicaid Services (CMS) for the renewal of the waiver application for the Deaf Blind with Multiple Disabilities (DBMD) Program. HHSC administers the DBMD Program under the authority of Section 1915(c) of the Social Security Act. CMS has approved the DBMD waiver application through February 28, 2023. The proposed effective date for the renewal is March 1, 2023.

The DBMD Program serves individuals with legal blindness, deafness, or a condition that leads to deaf blindness, and at least one additional disability that limits functional abilities. The program serves individuals in the community who would otherwise require care in an intermediate care facility for individuals with intellectual disability or a related condition.

The renewal request proposes to make the following changes:

Corrects acronyms, unit names, and other terminology to ensure accurate terms are used.

Updates the unduplicated number of participants, point-in-time numbers, and reserve capacity numbers, as well as the service projections, projections for consumer-directed services participants, and projections for annual average per capita Medicaid costs for all non-waiver institutional services (Factor G) and other Medicaid costs for the institutional population (Factor G’) for all five waiver years in Appendices B, E, and J.

Updates certain Texas Administrative Code (TAC) references from Title 40 to Title 26 for accuracy.

Removes the phrase “legal entity and entities” when referencing financial management services agencies.

Updates references to the “Sanctions Action Review Committee” to “Adverse Action Review Committee” for accuracy.

Public Notice of Stakeholder Engagement Meetings for Medicaid Payment Rates

OVERVIEW

The Texas Health and Human Services Commission (HHSC) will conduct stakeholder engagement meetings on September 14, 2022, to receive comments on Medicaid payment rate topics that may potentially be addressed at the upcoming November 2022 rate hearings. Commentary will be collected solely on the topics listed in this notice. Proposed rates will not be published at this time.

Public Notice: Texas State Plan Amendment to Implement Emergency Triage, Treat, and Transport (ET3) Services for Transportation Services.

OVERVIEW

The Texas Health and Human Services Commission (HHSC) announces its intent to submit transmittal number 22-0023 to the Texas State Plan for Medical Assistance, under Title XIX of the Social Security Act.

BACKGROUND AND JUSTIFICATION

The purpose of this amendment is to implement Emergency Triage, Treat, and Transport (ET3) services as required by the 2022-23 General Appropriations Act, H.B. 1, 87th Legislature, Regular Session, 2021, Article II, HHSC, Rider 42. Implementation of ET3 services will allow Medicaid-enrolled emergency medical service providers to be reimbursed for transporting Medicaid beneficiaries to alternative destinations, other than an emergency department, facilitating appropriate treatment in place at the scene, and facilitating appropriate treatment via telemedicine or telehealth. The proposed amendment is effective 9/01/2022.

Public Notice – Texas State Plan for Medical Assistance Amendment

OVERVIEW

The Texas Health and Human Services Commission (HHSC) announces its intent to submit amendments to the Texas State Plan for Medical Assistance under Title XIX of the Social Security Act.

BACKGROUND AND JUSTIFICATION

The purpose of the amendment is to update the rate methodology and payment rates for Financial Management Services Agencies (FMSA). Provider Finance Department (PFD) staff evaluated the FMSA rate methodology and payment rates as part of the biennial fee review. The proposed amendment is effective September 1, 2022.

Department of Aging and Disability Services

Proposed Rules Re:

Repealing 40 TAC §§91.1 – 91.8, to realign and reorganize the rules following the abolition of the Department of Aging and Disability Services (DADS).

CHAPTER 91. HEARINGS UNDER THE ADMINISTRATIVE PROCEDURE ACT
40 TAC §§91.1 – 91.8

OVERVIEW

As required by Texas Government Code §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all its functions were transferred to the Texas Health and Human Services Commission (HHSC) in accordance with Texas Government Code §531.0201 and §531.02011. Rules of the former DADS are codified in Title 40, Part 1, and will be repealed or administratively transferred to Title 26, Health and Human Services, as appropriate. Until such action is taken, the rules in Title 40, Part 1 govern functions previously performed by DADS that have transferred to HHSC. Texas Government Code §531.0055, requires the Executive Commissioner of HHSC to adopt rules for the operation of and provision of services by the health and human services system, including rules in Texas Administrative Code (TAC), Title 40, Part 1. Therefore, the Executive Commissioner of HHSC proposes the repeal of 40 TAC, Part 1, Chapter 91, Hearings Under the Administrative Procedure Act, comprised of §§91.1 – 91.8.

BACKGROUND AND PURPOSE

The purpose of the proposal is to repeal 40 TAC, Chapter 91.

SECTION-BY-SECTION SUMMARY

The proposed repeal of 40 TAC, Chapter 91 deletes the rules as no longer needed, because the content of the rules has been added to proposed new 26 TAC, Chapter 110.

State Board of Dental Examiners

Adopted Rules Re:

Amending 22 TAC §104.2 to add Dental Risk Solutions, LLC as a Board approved continuing education course provider.

CHAPTER 104. CONTINUING EDUCATION
22 TAC §104.2

OVERVIEW

The State Board of Dental Examiners (Board) adopts this amendment to 22 TAC §104.2, concerning continuing education providers. The adopted amendment adds Dental Risk Solutions, LLC as a Board approved continuing education course provider to subsection (e)(22). This rule is adopted without changes to the proposed text as published in the July 8, 2022, issue of the Texas Register (47 TexReg 3868) and will not be republished.

Repealing 22 TAC §108.25 to eliminate unnecessary repetitive statutory language.

CHAPTER 108. PROFESSIONAL CONDUCT
SUBCHAPTER B. SANITATION AND INFECTION CONTROL
22 TAC §108.25

OVERVIEW

The State Board of Dental Examiners (Board) adopts this repeal of 22 TAC §108.25, concerning dental health care workers. The adopted rule repeal deletes unnecessary repetitive statutory language found in Chapter 85 of the Texas Health and Safety Code. This rule is adopted with no changes to the proposed text as published in the July 8, 2022 issue of the Texas Register (47 TexReg 3869), and will not be republished.

Texas Department of Insurance

Adopted Rules Re:

Amending 28 TAC §12.4 to extend applicability of this chapter to all independent review organizations (IROs) performing independent reviews of adverse determinations made by utilization review agents, health insurance carriers, health maintenance organizations, and managed care entities.

CHAPTER 12. INDEPENDENT REVIEW ORGANIZATIONS
SUBCHAPTER A. GENERAL PROVISIONS
28 TAC §12.4

OVERVIEW

The Commissioner of Insurance adopts amended 28 TAC §12.4, concerning applicability, and new 28 TAC Subchapter G, §12.601, concerning review of preauthorization exemptions by independent review organizations (IROs). These amended and new sections implement House Bill 3459, 87th Legislature, 2021. The amended and new sections were published in the April 8, 2022, issue of the Texas Register (47 TexReg 1854). The Commissioner adopts amended §12.4 with a nonsubstantive change to the proposed text. The Commissioner adopts new §12.601 with changes to the proposed text in response to public comments and other nonsubstantive changes. The rules will be republished.

BACKGROUND AND JUSTIFICATION

Amended §12.4 and new §12.601, are necessary to conform the Texas Department of Insurance’s (TDI) utilization review rules with HB 3459, which allows a health maintenance organization or insurer to rescind an exemption from preauthorization requirements under certain conditions. A physician or provider may appeal an adverse determination regarding a preauthorization to an IRO to review the appropriateness of the rescission determination by the health maintenance organization or insurer.

SECTION-BY-SECTION SUMMARY

The amended and new sections are described in the following paragraphs.

Section 12.4. The amendments to §12.4(a) replace the phrase “of this subchapter” with “of this title” and add a reference to the section heading for consistency with current agency language preferences and drafting practices. TDI makes a grammatical change to the text of subsection (a) as proposed to remove the comma that follows “managed care entities.”
The amendments to §12.4(b) remove obsolete applicability language. New language states that independent reviews of adverse determinations regarding preauthorization exemptions made under Texas Insurance Code Chapter 4201, Subchapter N, must comply with new §12.601.
Subchapter G. Independent Review of Preauthorization Exemptions. TDI adds new Subchapter G, which consists of new §12.601. TDI modifies the proposed title of the new subchapter to more clearly describe the contents of the subchapter.
Section 12.601. New §12.601 outlines requirements and procedures for appeals of adverse determinations regarding a preauthorization exemption.
New §12.601(a) defines “adverse determination regarding a preauthorization exemption,” “issuer,” “physician,” “preauthorization exemption,” and “provider” to clarify these terms, which may have different meanings in other contexts in 28 TAC Chapter 12, and to refer to the preauthorization exemption process in 28 TAC Chapter 19.
New §12.601(b) states that the independent review of an adverse determination regarding a preauthorization exemption, the IRO that performs the review, and the appropriate issuer are subject to Insurance Code Chapter 4201, Subchapter N, and 28 TAC Chapter 12, except as otherwise specified in §12.601.
Section 12.601(c) states that for the purposes of §12.601, a physician or provider should be identified using the National Provider Identifier under which a physician or provider makes preauthorization requests.
New §12.601(d) states that an issuer must submit a request for independent review of an adverse determination regarding a preauthorization exemption to TDI on behalf of a physician or provider.
In response to comment, TDI modifies the text of new §12.601(e) as proposed to clarify that the IRO must base its decision on whether to uphold an exemption recission on the total number of claims in the initial random sample and a second random sample, if one was requested under Insurance Code §4201.656(d) and available as provided in 28 TAC §19.1733(e). New §12.601(e) provides that, if a second random sample is requested and available, the IRO must identify the new sample of at least five and no more than 20 claims from the list of eligible claims provided by the issuer. The IRO must review each claim that the issuer retrospectively reviewed and determined did not meet the applicable criteria and, if applicable, each claim included in the second random sample identified by the IRO. The IRO may request any medical records needed to evaluate the claims subject to review and must provide at least three business days for receipt of records.
Section 12.601(f) states that appeals for an adverse determination regarding a preauthorization exemption follow TDI’s process for assigning IROs under 28 TAC §12.502, except that TDI will only provide notice of the appeal to the IRO, the issuer, and the physician or provider.
New §12.601(g) states that 28 TAC §12.206 does not apply to an IRO’s independent review of an adverse determination regarding a preauthorization exemption. In response to comment, TDI modifies §12.601(g) to clarify that an IRO must provide timely notice to an issuer regarding its determination consistent with the timeframe provided under Insurance Code §4201.656(c).

New 28 TAC §12.601, outlining requirements relating to the review of preauthorization exemptions by certain independent review organizations (IROs).

CHAPTER 12. INDEPENDENT REVIEW ORGANIZATIONS
SUBCHAPTER G. EXEMPTIONS FOR INDEPENDENT REVIEW ORGANIZATIONS
28 TAC §12.601

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

The amended and new sections are described in the following paragraphs.

Section 12.4. The amendments to §12.4(a) replace the phrase “of this subchapter” with “of this title” and add a reference to the section heading for consistency with current agency language preferences and drafting practices. TDI makes a grammatical change to the text of subsection (a) as proposed to remove the comma that follows “managed care entities.”
The amendments to §12.4(b) remove obsolete applicability language. New language states that independent reviews of adverse determinations regarding preauthorization exemptions made under Texas Insurance Code Chapter 4201, Subchapter N, must comply with new §12.601.
Subchapter G. Independent Review of Preauthorization Exemptions. TDI adds new Subchapter G, which consists of new §12.601. TDI modifies the proposed title of the new subchapter to more clearly describe the contents of the subchapter.
Section 12.601. New §12.601 outlines requirements and procedures for appeals of adverse determinations regarding a preauthorization exemption.
New §12.601(a) defines “adverse determination regarding a preauthorization exemption,” “issuer,” “physician,” “preauthorization exemption,” and “provider” to clarify these terms, which may have different meanings in other contexts in 28 TAC Chapter 12, and to refer to the preauthorization exemption process in 28 TAC Chapter 19.
New §12.601(b) states that the independent review of an adverse determination regarding a preauthorization exemption, the IRO that performs the review, and the appropriate issuer are subject to Insurance Code Chapter 4201, Subchapter N, and 28 TAC Chapter 12, except as otherwise specified in §12.601.
Section 12.601(c) states that for the purposes of §12.601, a physician or provider should be identified using the National Provider Identifier under which a physician or provider makes preauthorization requests.
New §12.601(d) states that an issuer must submit a request for independent review of an adverse determination regarding a preauthorization exemption to TDI on behalf of a physician or provider.
In response to comment, TDI modifies the text of new §12.601(e) as proposed to clarify that the IRO must base its decision on whether to uphold an exemption recission on the total number of claims in the initial random sample and a second random sample, if one was requested under Insurance Code §4201.656(d) and available as provided in 28 TAC §19.1733(e). New §12.601(e) provides that, if a second random sample is requested and available, the IRO must identify the new sample of at least five and no more than 20 claims from the list of eligible claims provided by the issuer. The IRO must review each claim that the issuer retrospectively reviewed and determined did not meet the applicable criteria and, if applicable, each claim included in the second random sample identified by the IRO. The IRO may request any medical records needed to evaluate the claims subject to review and must provide at least three business days for receipt of records.
Section 12.601(f) states that appeals for an adverse determination regarding a preauthorization exemption follow TDI’s process for assigning IROs under 28 TAC §12.502, except that TDI will only provide notice of the appeal to the IRO, the issuer, and the physician or provider.
New §12.601(g) states that 28 TAC §12.206 does not apply to an IRO’s independent review of an adverse determination regarding a preauthorization exemption. In response to comment, TDI modifies §12.601(g) to clarify that an IRO must provide timely notice to an issuer regarding its determination consistent with the timeframe provided under Insurance Code §4201.656(c).

Amending 28 TAC §19.1710 and new 28 TAC §§19.1730 – 19.1733 detailing requirements that must be met prior to issuing an adverse determination and preauthorization exemptions.

CHAPTER 19. LICENSING AND REGULATION OF INSURANCE PROFESSIONALS
SUBCHAPTER R. UTILIZATION REVIEWS FOR HEALTH CARE PROVIDED UNDER A HEALTH BENEFIT PLAN OR HEALTH INSURANCE POLICY
28 TAC §§19.1710, 19.1730 – 19.1733

OVERVIEW

The Commissioner of Insurance adopts amended 28 TAC §19.1710 and new 28 TAC Chapter 19, Subchapter R, Division 2, §§19.1730 – 19.1733, concerning requirements prior to issuing an adverse determination and preauthorization exemptions. These amended and new sections implement House Bill 3459, 87th Legislature, 2021. The Commissioner adopts §19.1710 without changes to the proposed text published in the April 8, 2022, issue of the Texas Register (47 TexReg 1856). This section will not be republished. The Commissioner adopts §§19.1730 – 19.1733 with revisions made in response to public comments. These sections will be republished.

BACKGROUND AND JUSTIFICATION

Amended §19.1710 and new Division 2, §§19.1730 – 19.1733 are necessary to conform the Texas Department of Insurance’s (TDI) utilization review rules with HB 3459, which allows an issuer such as a health maintenance organization or insurer to grant, deny, or rescind an exemption from preauthorization requirements under certain conditions. Under the adopted rules, an issuer must provide notice of an initial exemption or denial of an exemption not later than October 1, 2022, based on an evaluation period of January 1, 2022, through June 30, 2022.

SECTION-BY-SECTION SUMMARY

The amended and new sections are described in the following paragraphs.

Section 19.1710. Amended §19.1710 clarifies that a utilization review agent must afford the provider of record a reasonable opportunity to discuss the plan of treatment for the enrollee with a physician licensed to practice in Texas. This section follows Insurance Code §4201.206, as amended by HB 3459, in which new language specifies that an agent must provide to a health care provider an opportunity to discuss the health care service in question with a physician licensed to practice medicine “in this state.” The section is also amended to add a sentence stating, in accordance with Insurance Code §4201.206, that if the health care service was ordered, requested, or provided by a physician, the opportunity to discuss the health care service in question must be with a physician licensed to practice medicine in Texas and who has the same or similar specialty as the requesting physician. Physicians holding Texas Administrative Medicine Licenses under the Medical Practice Act and Texas Medical Board rule, 22 TAC §172.17, can meet this standard. TDI has historically interpreted §4201.206 to include Texas Administrative Medicine Licenses, and TDI believes that recent changes to Insurance Code §4201.206 do not indicate that this long-standing position should change.
Division 2. Preauthorization Exemptions. TDI adds new Division 2, titled “Preauthorization Exemptions,” to distinguish §§19.1730 – 19.1733 from existing rules in Subchapter R, which relate to utilization review and preauthorization procedures generally. A new Division 1 with the heading “Utilization Reviews” and consisting of §§19.1701 – 19.1719 has been administratively designated in Chapter 19, Subchapter R to distinguish between the sections that address utilization review and those that address preauthorization exemptions.
Section 19.1730. New §19.1730 defines terms used in the new division: “adverse determination regarding a preauthorization exemption,” “denial of preauthorization exemption,” “eligible preauthorization request,” “evaluation,” “evaluation period,” “issuer,” “particular health care service,” “physician,” “preauthorization,” “preauthorization exemption,” “provider,” “random sample,” “rescission of preauthorization exemption,” and “treating physician or provider.” The definitions clarify:

the nature of an adverse determination regarding a preauthorization exemption, as compared with the meaning of adverse determination under §19.1703;
the number of eligible preauthorization requests needed for granting or denying a preauthorization exemption;
the threshold percentage of accepted claims needed for an issuer to grant, deny, or rescind a preauthorization exemption;
the nature of an evaluation depending on whether the physician or provider currently has a preauthorization exemption in place;
the time allowed for evaluation periods; and
the scope of “particular health care service” to include prescription drugs.

TDI changes the definition of “adverse determination regarding a preauthorization exemption” as proposed to add the word “retrospectively” and include a reference to paragraph (4)(B) of the section, where the applicable evaluation is defined, to add clarity and consistency with other changes made in response to comments.
TDI changes the definition of “denial of preauthorization exemption” as proposed in response to comment to add clarity by inserting a reference to paragraph (4)(A) of the section and adding references to the newly defined term, “eligible preauthorization request.”
Along with the proposed defined terms, TDI adopts a new defined term “eligible preauthorization request” in response to comments to clarify which preauthorization requests may be counted as approved or denied for the purposes of an evaluation.
TDI changes the definition of “evaluation” as proposed in response to comments to specify that the evaluation for a continuation or rescission analysis is based on a retrospective review of a random sample of claims. The definition is changed to add references to “eligible” preauthorization requests, “retrospective” review, and “payable” claims. TDI also clarifies that claims submitted “in connection with” a physician or provider are subject to an evaluation of the physician’s or provider’s continued eligibility for an exemption. TDI adds the word “meeting” to clarify that a determination the claims would have been approved is based on meeting the issuer’s applicable medical necessity criteria. TDI makes a grammatical change at the end of the definition of “evaluation,” to replace the semicolon with a period.
TDI changes the definition of “provider” as proposed by removing unnecessary text after citing to Insurance Code §843.002.
TDI changes the definition of “rescission of preauthorization exemption” as proposed in response to comments to add a reference to paragraph (4)(B) of the section, where the applicable evaluation is defined, and replace language regarding the physician licensure requirement with a reference to Insurance Code §4201.655(b).
TDI changes the definition of “treating physician or provider” as proposed to reference “health and medical care” in place of “health care for an illness or injury,” and add “or ordering” to add clarification and avoid the appearance of unintentionally narrowing the scope of the definition. TDI also replaces “includes” with “can include” to improve the grammatical structure in the second sentence of the definition.
TDI renumbers the paragraphs of the defined terms that follow the new defined “eligible preauthorization request.”
Section 19.1731. New §19.1731 describes the initial preauthorization exemption process. Subsection (a) clarifies that for purposes of Division 2, a “physician” or “provider” should be identified using the National Provider Identifier (NPI) under which a physician or provider makes preauthorization requests. TDI changes subsection (a) as proposed to add a reference to the abbreviation “NPI.”
Subsection (b) states that an issuer must review the outcomes of no fewer than five eligible preauthorization requests for a particular health care service in a given evaluation period and determine whether the physician or provider qualifies for an exemption. TDI specifically sought comments on this minimum threshold for review and in response to comments changes the proposed text to reduce it from 20 preauthorization requests to five eligible preauthorization requests.
Subsection (c) provides the requirements for an issuer to rescind a preauthorization exemption that has already been granted to a physician or provider, which must be rescinded consistent with Insurance Code §4201.655. TDI changes subsection (c) as proposed to add a reference to the definition of evaluation in §19.1730(4)(B).
Subsection (d) clarifies that if a treating physician or provider without a preauthorization exemption relies on another physician’s or provider’s preauthorization exemption in violation of subsection (d), the physician or provider who has qualified for an exemption may be considered by the issuer as failing to substantially perform the health care service. In that situation, the issuer may reduce or deny payment for that service under Insurance Code §4201.659. In response to comments, TDI changes subsection (d) as proposed to consistently reference a physician “or provider” and clarifies that it is the exempt physician or provider that would be considered to have failed to provide a service if the treating physician or provider inappropriately relied on the exempt physician’s or provider’s exemption. In response to comments and questions, TDI adds a sentence to subsection (d) that clarifies that supervised providers, such as nurses and physician’s assistants, may rely on the supervising physician’s exemption in certain circumstances.
Finally, TDI adds new subsection (e) to the text of §19.1731 as proposed to address concerns that issuers would be unable to operationalize exemptions for ordering or referring physicians and providers, unless the rendering and billing provider includes the exempt provider’s NPI on the claim form.
Section 19.1732. New §19.1732(a) states that an issuer must provide notice to the physician or provider when granting a preauthorization exemption, and it requires that an exemption be in place for at least six months before it can be rescinded. In response to comments, TDI changes subsection (a) as proposed to require the exemption notice to include a plain language explanation of the effect of the preauthorization exemption and any claim coding guidance needed to document the exemption, consistent with §19.1731(e). If an issuer subsequently receives a preauthorization request from the physician or provider for a service for which the physician or provider has been granted an exemption, the issuer must provide notice in accordance with Insurance Code §4201.659(e).
For denials of preauthorization exemptions, new §19.1732(b) states that an issuer must provide notice of the denial to the physician or provider and list the reasons for a denial in accordance with Insurance Code §4201.655(c)(2). In response to comments, TDI changes subsection (b) as proposed to also require a denial notice to include a description of how to appeal the denial using the issuer’s complaints and appeals processes and information on how to file a complaint with TDI.
New §19.1732(c) provides a required timeframe for issuing notices of exemption or denial following the initial and subsequent evaluation periods and clarifies that such notices are required with respect to a particular health care service only if the physician or provider had submitted at least five eligible preauthorization requests during the evaluation period. TDI specifically sought comments on this minimum duration for exemptions and the timeframe for issuing notices, and whether either should be modified. In response to comments, TDI changes subsection (c) as proposed to clarify that an issuer must provide notice within five days of completing an evaluation, as required by Insurance Code §4201.659(d). Consistent with the change to §19.1731(b) as proposed, TDI also changes the minimum threshold from 20 to five eligible preauthorization requests. To conform with agency style, TDI removes the parenthetical reference following §19.1731(b), since the reference is added as part of the change to subsection (a).
New §19.1732(d) describes the requirements of the notice that must be delivered to a physician or provider when rescinding a preauthorization exemption, the requirements for a physician or provider to appeal a rescission of preauthorization exemption, and notes an example form (LHL011) available on TDI’s website. In response to comments, TDI changes the text of subsection (d) as proposed to clarify that rescission notices must be provided during the months specified in Insurance Code §4201.655(a)(1). TDI changes subsection (d)(1) as proposed to specify that the rescission notice must include the date the notice is issued and changes subsection (d)(2) as proposed to clarify that issuers must allow providers to return appeal forms by mail or electronic means. TDI changes subsection (d)(3) as proposed to provide that the notice must state the total number of eligible claims with respect to the health care service subject to rescission and the number of claims included in the random sample. TDI changes subsection (d)(3)(A) as proposed to remove the reference to retrospective review of additional claims that were not included in the random sample. In response to comment, TDI changes subsection (d)(3)(C)(i) to clarify that the rescission notice must state if the principal reason for a determination is based on a failure to submit specified medical records. TDI makes a grammatical change in subsection (d)(3)(C)(iv) as proposed by replacing “that” with “who,” when referencing the physician, doctor, or other health care provider. TDI changes subsection (d)(5) as proposed in response to comment to require the rescission notice to include an instruction for the physician or provider to include applicable medical records with the request for independent review for any determination that was based on a failure to provide medical records.
TDI also adds new subsection (e) to the text of §19.1732 as proposed to require issuers to offer physicians and providers an option to request appeals and receive communications regarding preauthorization exemptions by mail or electronically and a method for physicians and providers to indicate their preferred contact information for these communications.
Section 19.1733. New §19.1733(a) clarifies that Insurance Code §4201.305 does not apply to retrospective reviews conducted under Insurance Code §4201.659(b)(1).
New §19.1733(b) provides that a physician or provider has at least 30 days to provide medical records or other documents for the issuer to conduct an evaluation. Medical records can be requested only during an evaluation period or within 90 days following the end of an evaluation period. If the physician or provider does not provide the necessary records for an issuer to make a determination, the issuer may determine that the claim would not have met the screening criteria. In response to comment, TDI changes the text as proposed to add a reference to the applicable definition of evaluation in §19.1730(4)(B). TDI makes a nonsubstantive formatting change to the proposed text to capitalize “Contact” in the reference to “URA Contact.” TDI also changes language in subsection (b) as proposed to clarify that medical records requested “in connection with a retrospective review of a random sample of claims as authorized under Insurance Code §4201.659(b)(1) should be limited to no more than 20 claims. . .”
New §19.1733(c) states that a physician or provider may request an independent review of the retrospective review that resulted in the rescission of preauthorization exemption at any time before the rescission is effective. In response to comment, TDI changes the proposed text to clarify that the date of the request must be documented on the form and the form must be sent electronically or postmarked before the date the rescission becomes effective.
New §19.1733(d) provides that a physician or provider must submit to the issuer the form provided by the issuer under §19.1732(c) in order to request an independent review. Upon receipt, the issuer must submit the request for independent review to TDI, consistent with adopted new 28 TAC §12.601 (included in a separate adoption) and 28 TAC §19.1717. In response to comment, TDI changes subsection (d) as proposed to require that a physician or provider include applicable records with any request for independent review where one or more determinations subject to review were based on a failure to provide specified medical records. In the last sentence of subsection (d), TDI clarifies that the requirement for the issuer to submit the request for independent review applies only if the issuer seeks to proceed with the proposed rescission. TDI adds a reference to Insurance Code §4201.402 to clarify the obligation of the issuer to provide information concerning the appeal to the independent review organization (IRO) in a timely manner.
TDI changes new §19.1733(e) as proposed in response to comments. The subsection now states that a physician or provider may request that the IRO review another random sample of claims, as authorized under Insurance Code §4201.656(d), if the notice of rescission of preauthorization exemption identified that at least five additional claims were eligible for review but not included in the original random sample. If the request for a new random sample is made, the issuer must provide a listing of all eligible claims that were not included in the original random sample when submitting the request for independent review to TDI. The listing must be sufficiently detailed to allow the IRO to identify each payable claim to be used in an additional random sample, as provided in conforming changes to §12.601(e), which are discussed in a separate adoption.
New §19.1733(f) states that an issuer must communicate the determination of a review by the IRO to the physician or provider within five days.
New §19.1733(g) states that physicians and providers must continue to maintain medical records adequate to demonstrate that the exempted services they provide meet medical guidelines, in order to retain a preauthorization exemption. Most, if not all, physicians and providers subject to this adopted rule already maintain records for a sufficient amount of time. See, e.g., 22 TAC §76.4(a) (Texas Board of Chiropractic Examiners rule imposing a six-year records retention requirement); 22 TAC §165.1(b)(1) (Texas Medical Board rule imposing a six-year records retention requirement); and 22 TAC §§291.34(a), 291.75(a), and 291.94(a) (Texas State Pharmacy Board rules imposing a two-year records retention requirement). If there are no adequate records for an issuer to use during an evaluation, an exemption may be rescinded.