The Division has issued informal draft rules for subclaims when the health care insurer seeks reimbursement (rather than the health care provider). Generally, the proposed rules track the language of the statute with the following additions.
Rule 140.6(c) does not allow a health care insurer to pursue dispute resolution process if the employee is also pursuing dispute resolution. The health care insurer may not take any position contrary to the position of the employee. Health care insurers and their agents may express their disagreement with this proposed addition.
At a Contested Case Hearing, the sub-claimant must also prove it has contacted the employee and the employee is not pursuing the dispute or it has been unable to locate and contact the employee through the exercise of reasonable diligence. This additional burden is not found in the statute.
A health care insurer must file its request for reimbursement (DWC-26) with the carrier and simultaneously give notice to both the employee and the health care provider that performed the services subject to the request for reimbursement. A carrier will respond to the request for reimbursement to the sub-claimant and also provides notice to the health care providers they must reimburse the employee for any amounts (copays, deductibles, etc.) paid to them by the employee.
A workers’ compensation carrier may not deny a request on the basis of insufficient information unless the workers’ compensation carrier has first requested additional information. (If a workers’ compensation carrier requests additional information, the ninety day time frame to respond is extended to 120 days.) The workers’ compensation carrier must provide the health care insurer and all health care providers and the employee with the Explanation Of Benefits (EOB) (either to deny, pay, or pay in part).
If the workers’ compensation carrier agrees to reimburse the health care insurer, the health care provider must refund to the employee any payments made by the employee to the health care provider for that care including copays and deductibles within forty-five days.
If the workers’ compensation carrier denies reimbursement based on medical necessity, the sub-claimant shall follow the Independent Review process allowed for non-network health care providers seeking retrospective review of a service. The request for Independent Review must be filed with the workers’ compensation carrier at the same time the notice of sub-claim status is signed with the Division. A request for reconsideration is not required. Although not entirely clear of its intent, the new rules also indicate a health care insurer pursuing dispute resolution under Texas Labor Code §409.009 and Rule 140.6 is barred from seeking recovery under the new provisions found in Texas Labor Code §409.0091.
Finally, if multiple entities are seeking reimbursement for the same date of service, the first in time shall be the only sub-claimant under §409.0091.