THE DIVISION RECENTLY HELD ITS INSURANCE CARRIER QUARTERLY MEETING

Cassie Brown, Commissioner of the Division of Workers Compensation, began the meeting with opening remarks. She indicated the Division was adopting a 60-day extension to the emergency telemedicine rule. Likewise, she assured system participants that the medical fee guidelines are tethered to Medicare’s regulations.  Therefore, Medicare’s regulations would continue to provide guidance regarding telemedicine should the emergency rule expire. The Commissioner noted that the Division continues to conduct virtual benefit dispute hearings. There are no immediate plans to depart from the current virtual hearings format. The Commissioner also indicated the Division, in compliance with its statutory mandates, was proceeding forward with the performance based oversight (PBO) process and the preliminary results should be issued in late August. She did note that the PBO analysis would take into the account the unique circumstances created by COVID-19.

Office of Medical Advisor Update

Mary Landrum, Director of Healthcare Business Management, presented the Office of Medical Advisor (OMA) an update. She explained that, so far this year, 59 complaints have been forwarded to the OMA. Ninety-one complaints have been investigated by the OMA, 54% were closed with no action, 34% were cases where letters of education were issued, 5% were referred for a medical quality review and 7% were referred to enforcement.

So far, in 2020, there have been two medical quality reviews initiated and six reviews concluded. Of the six reviews concluded, 67% were referred to enforcement and, in 33%, no further actions were recommended. The OMA has forwarded 13 referrals to enforcement and nine referrals were concluded by enforcement. Of those concluded, there were two consent orders/final order issued and five warning letters issued. Currently, there are 33 other OMA cases pending before enforcement and 2 cases pending at State Office of Administrative Hearing (SOAH).

Compliance and Investigations Update

Debra Knight, Deputy Commissioner of Compliance and Investigations, gave a Compliance and Investigation update. So far this year, there have been 1,053 complaints received by the Division. Of those, the largest number of complaints (307) involved communications. The majority of the other complaints involved indemnity benefit delivery (269) and medical benefit delivery (254). The Division continues to work on resolving the backlog of complaints and has closed 1,408 complaints this year with 318 confirmed violations, 448 education letters.  In 642 cases, the Division was unable to confirm a violation occurred. There has been a significant drop in the number of complaints this year. In January, there were 245 complaints made, while, by the end of July, there were only 102. The reduction was described as being a result of COVID-19 as well as additional training provided to Division staff regarding the complaint process.

Deputy Commissioner Knight also discussed PBO. Under the new selection criteria, 121 insurance carriers have been selected. The Division is scheduled to distribute the preliminary findings on August 28, 2020. Management responses will be due on October 5, 2020 and the Division hopes to distribute the results in January 2021.

Deputy Commissioner Knight also discussed fraud. She explained the primary fraud schemes the Division investigates are:

• Billing for services not performed by attorneys and healthcare providers;
• Misclassifying high risk employees in order to obtain the lower premium rates;
• Working and receiving benefits; and
• Falsifying documents to keep from having to pay premiums or benefits.

In 2020 there were 889 fraud referrals received, 131 fraud cases opened, 781 fraud cases closed and 2 cases referred for prosecution. There were four indictments for fraud, three against healthcare providers and one against an injured employee. So far, in 2020, there have been two convictions for fraud, one conviction of an employer and one conviction of an injured employee.

Regarding enforcement, there have been no changes in the Division’s enforcement key initiatives. The Division strives to encourage compliance with the Texas Workers’ Compensation Act and Division’s rules. The most common examples of insurance carrier administrative violations include:

• Failure to pay timely indemnity benefits;
• Failure to initiate TIBs;
• Failure to accurately pay TIBs;
• Failure to investigate a claim;
• Attorney fee billing violations; and
• Failure to comply with Medical Fee Dispute Resolution and Order.

So far this year, the Division has issued orders assessing violations against 74 insurance carriers and 10 healthcare providers. The Division has also issued 155 warning letters to insurance carriers and 66 warning letters to providers.

Updates on Electronic Data Intrachange (EDI)

Martha Luevano, Director of EDI Automation Services, provided an update on EDI. She indicated the Division has launched a technical work group. The work group is designed to enhance improvement in the EDI system. The work group has scheduled its next meeting for November 19, 2020 and system participants are encouraged to participate.

Director Luevano highlighted certain Division filing requirements. She noted that, when a PLN-1 is issued, EDI “04” denial code transaction must be sent to the Division. Changes to an injured employee’s last name, social security or date of injury cannot be made through an EDI transaction. To facilitate such a change, parties need to contact records_processing@tdi.texas.gov. To report a change of compliance coordinator or their contact information, parties must file a DWC Form EDI-03 “Medical EDI Compliance Coordinator and Trading Partner Notification” within five days.

Insurance carriers having issues with data reporting were urged to contact EDI support at EDIsupport@tdi.texas.gov. When contacting EDI support, carriers will need to provide a description of the issue, the date the issue was discovered and the number of EDI records affected. Carriers will need to provide the date the corrective action was or will be taken as well as the date the corrected records were or will be filed. EDI support staff should respond and request any additional information needed.

The DWC Form/121 (Claims Administration Contact Information) must be used to report changes to an insurance carrier’s coverage verification, adjusting, medical billing, pharmacy billing or utilization review within 10 working days. The Division makes this information available through TXCOMP for all system participants.

Joe McElrath, Deputy Commissioner of Business Processes, touched on updates regarding EDI and the transition to International Association of Industrial Accident Boards and Commissions (IAIABC) claims EDI release 3.1 format. The Division plans to publish an informal rule in the Fall that will describe the proposed changes from release 1.02 to release 3.1. This is significant, as this standard has not been updated since 1995. The Division will be seeking applicants to serve as the agency’s data collection agent for insurance carrier claim data collection in the release 3.1 format. Deputy Commissioner McElrath encouraged carriers’ technical personnel to participate in the Division’s work group.

DD and Business Process Update

Deputy Commission McElrath also gave the designated doctor and business process update. He explained that, while suspended in response to COVID-19, designated doctor exams resumed on June 15, 2020 and the Division began processing requests for designated doctor exams on June 22, 2020. Designated doctor are not currently examining injured employees for issues related to disability or return to work.

Since the resumption of designated doctor exams, there have been approximately 6,200 exams ordered. The Division is currently processing requests for designated doctor exams filed in mid-July. The Division is currently providing designated doctor training and certification virtually.

Rule Project Update

Jeb Boyt, Assistant General Counsel, provided a Rule Project update. Recently the Division adopted amendments to Rule 129.5 to incorporate recent legislation allowing Advanced Practice Registered Nurses (APRN) to sign work status reports.

The Division has also amended proposed amendments to Rule 132.7 and 132.17 to expand the eligibility of spouses who may receive death benefits for life, regardless of remarriage, to all spouses of peace officers and intrastate fire mutual aid system team members or regional incident management team members. The rules were published in June and will hopefully be adopted next month.

The Division is also working on updating rules associated with form interrogatories, medical fee dispute resolution and utilization review. The rule changes associated with utilization review will incorporate legislative changes requiring all reviewers of medical necessity and independent review to be licensed in Texas.  The rule will also require  reviews provided by a physician be conducted by a physician who is Texas licensed and is of the same or similar specialty as the physician requesting, ordering or providing the healthcare being reviewed. A draft of the rules should be published in the near future and the Division plans to hold a stakeholder meeting to address the proposed rule the week of September 21, 2020.

Finally, the Division is working on amending Rule 112.203 and DWC Form 84 to reflect legislative changes eliminating the requirement that the DWC Form 84 (Exception to Joint Agreement to Affirm Independent Relationship Building and Construction Workers) be automatically sent to the Division.

Telemedicine Update

Matt Zurek, Deputy Commissioner of Health and Safety, provided a telemedicine update. He explained that telemedicine activity has increased as a result of COVID-19.   In February 2020, the Division received 207 bills related to telemedicine. By April 2020, that number had increased to 8,705. The numbers have declined since April; however, medical bills continue to be submitted. Telemedicine is predominantly being utilized by MDs and DOs. Most treatment done via telemedicine is associated with office visits primarily for low back conditions. As noted in the Commissioner’s opening statement, the Division has extended Rule 127.1, adopted as an emergency rule related to telemedicine and telehealth.

COVID-19 Data Call

Amy Lee, Special Advisor/Director of Research and Evaluation, provided an update on the COVID-19 data call. Special Advisor Lee indicated that the first data call submissions were received by the Division and addressed COVID-19 injuries reported from December 1, 2019 through June 30, 2020. Another data call will take place on October 31, 2020 regarding COVID-19 injuries from December 1, 2019 through September 30, 2020. Additionally, the Division plans another data call for January 31, 2021 regarding COVID-19 injuries reported from December 1, 2019 through December 31, 2019. The data call is requesting information related to the number of claimants with COVID-19 exposure, the number of claimants who tested positive for COVID-19 and the benefits paid to those claimants.

Hearings Update

Kerry Sullivan, Deputy Commissioner of Hearings, provided a hearings update. He indicated the Division continues to proceed forward with virtual proceedings, including Benefit Review Conferences (BRC) and Benefit Contested Case Hearings (BCCH). He noted there has been a small increase in continuances granted for BRCs and BCCHs since the transition to a virtual platform as well as a small decrease in BRC agreements. Deputy Commissioner Sullivan also highlighted the Division’s plain language initiative and emphasized the Division’s efforts to utilize plain language in its communication with systems participants.

Deputy Commissioner Sullivan explained the Division is updating its form interrogatories. The current interrogatories have been in place since 1991. The Division is currently accepting comments to the proposed updated interrogatories and will hold a stakeholder meeting on September 2, 2020 at 10:00 a.m. Any written comments related to the proposed changes to the interrogatories will be accepted until 5:00 p.m. on September 4, 2020.

Following Deputy Commissioner Sullivan’s presentation, the quarterly meeting was concluded. If you have any questions regarding this matter, please do not hesitate to contact me.