(a) The person who performs utilization review or retrospective review, denies a referral request because the referral is not medically necessary, or denies a request for deviation from treatment guidelines, individual treatment protocols or screening criteria, must:
(1) permit the employee, person acting on behalf of the employee, or the employee's requesting provider to seek review of the referral denial or reconsideration denial within the period prescribed by subsection (b) of this section by an independent review organization assigned in accordance with Insurance Code Article 21.58C and commissioner rules; and
(2) provide to the appropriate independent review organization, not later than the third business day after the date the person receives notification of the assignment of the request to an independent review organization:
(A) any medical records of the employee that are relevant to the review;
(B) any documents, including treatment guidelines, used by the person in making the determination;
(C) the response letter described by Insurance Code § 1305.354(a)(4) and § 10.103(a)(4) of this subchapter (relating to Reconsideration of Adverse Determination);
(D) any documentation and written information submitted in support of the request for reconsideration; and
(E) a list of the providers who provided care to the employee and who may have medical records relevant to the review.
(b) A requestor must timely file a request for independent review under subsection (a) of this section as follows:
(1) for a request regarding preauthorization or concurrent review, not later than the 45th day after the date of denial of a reconsideration; or
(2) for a request regarding retrospective medical necessity review, not later than the 45th day after the denial of reconsideration.
(c) The insurance carrier must pay for the independent review provided under this subchapter.
(d) The department shall assign the review request to an independent review organization.
(e) At a minimum, the decision of the independent review organization must include the elements listed and the certification required under Labor Code § 413.032.
(f) After an independent review organization's review and decision under this section, a party to a medical dispute that disputes the decision may seek judicial review of the decision. The division of workers' compensation and the department are not considered to be parties to the medical dispute.
(g) A decision of an independent review organization related to a request for preauthorization or concurrent review is binding. The carrier is liable for health care during the pendency of any appeal, and the carrier and network shall comply with the decision.
(h) If judicial review is not sought under this section, the carrier and network shall comply with the independent review organization's decision.
The provisions of this § 10.104 adopted to be effective December 5, 2005, 30 TexReg 8099.