Texas Register, Volume 34, Number 33, Pages 5445-5614, August 14, 2009 Page: 5,486
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ment of House Bill (HB) 4290, 81st Legislature, Regular Ses-
sion, effective September 1, 2009. HB 4290 enacts changes
to the Insurance Code Chapter 4201 that result in the need to
substantively revise 28 TAC Chapter 19, Subchapter R, relating
to the regulation of utilization review agents. HB 4290 expands
the definition of "utilization review" in the Insurance Code Chap-
ter 4201 to include retrospective reviews for medical necessity
and to include reviews to determine the experimental or inves-
tigational nature of health care services. Rules are necessary
to implement this expanded definition of "utilization review" as
well as the other changes to the Insurance Code Chapter 4201
enacted by HB 4290 to address and implement the expanded
definition of "utilization review." In addition, the Department may
determine that other changes and additions are needed to the
existing rules regulating utilization review.
The Government Code, Chapter 2110 specifies the require-
ments and procedures for state agency advisory committees.
The Government Code 2110.0012 provides that a state agency
has established an advisory committee if state or federal law has
specifically created the committee to advise the agency or the
agency has, under state or federal law, created the committee to
advise the agency. The Government Code 2110.005 requires
a state agency that establishes an advisory committee to, by
rule, state the purpose and tasks of the committee and describe
the manner in which the committee will report to the agency.
The Government Code 2110.008 authorizes a state agency
that has established an advisory committee to designate the
date on which the committee will automatically be abolished
and requires that the designation be by rule.
The following amendments are proposed to 19.1722. A pro-
posed amendment to 19.1722(a) is necessary to clarify that the
use of the term "advisory committee" throughout the section is a
reference to the Utilization Review Advisory Committee.
Amendments are proposed to update obsolete statutory refer-
ences in 19.1722(a), and (d) as a result of the adoption of the
non-substantive Insurance Code revision. The Insurance Code
Article 21.58A, which is referenced in 19.1722(a), was repealed
in the non-substantive Insurance Code revision, Acts 2005, 79th
Leg., Ch. 727, 4, effective April 1, 2007. The Insurance Code
Article 21.58A was readopted without substantive change as the
Insurance Code Chapter 4201 in the same non-substantive In-
surance Code revision. The Insurance Code Article 21.58A, 13,
which is cited in 19.1722(d), was readopted as the Insurance
Code 4201.003 as part of the non-substantive Insurance Code
revision. Additionally, amendments are proposed to change ref-
erences to "Insurance Code" to "the Insurance Code" throughout
the section to reflect current agency style.
A proposed amendment to 19.1722(b)(1) establishes that
the purpose of the advisory committee is to: (i) advise the
Commissioner on the development of rules determined by
the Department as necessary to implement HB 4290, 81st
Legislature, Regular Session, effective September 1, 2009, that
amends the Insurance Code Chapter 4201; and (ii) to advise the
Commissioner on other changes and additions to the existing
rules regulating utilization review that the Department deter-
mines are needed to administer the Insurance Code Chapter
4201.
A proposed amendment to 19.1722(c)(1) is necessary to
provide that the advisory committee shall review and evaluate
proposed changes and additions to the current utilization review.
A proposed amendment to 19.1722(c)(2) is necessary to pro-
vide that the advisory committee shall advise and consult withthe Commissioner or the Commissioner's representative during
its review and evaluation made pursuant to 19.1722(c)(1).
Proposed amendments also delete 19.1722(c)(3), which is
no longer needed, and redesignate existing 19.1722(c)(4) as
19.1722(c)(3). Another proposed amendment to newly desig-
nated 19.1722(c)(3) is necessary to provide that the advisory
committee shall perform other tasks related to the development
of rules as provided by 19.1722(c)(1) and as requested by the
Commissioner pursuant to the Insurance Code Chapter 4201
and the Government Code Chapter 2110.
Proposed amendments to 19.1722(d) and 19.1722(d)(1) are
necessary to add two additional representatives to the utilization
review advisory committee. The additional representatives are:
(i) a representative for a workers' compensation carrier and (ii)
a representative for injured employees. The addition of these
two representatives is necessary because when 4201.003 of
the Insurance Code was first enacted as Article 21.58A 13 in
1991, workers' compensation coverage was not subject to the
utilization review requirements in the Insurance Code. In 1997,
the Texas Legislature required workers' compensation coverage
to be subject to the utilization review requirements of the Insur-
ance Code Article 21.58A (HB 3197, 75th Legislature, Regular
Session, effective September 1, 1997). As previously indicated,
the Insurance Code Article 21.58A was repealed in the non-sub-
stantive Insurance Code revision, Acts 2005, 79th Leg., Ch. 727,
4, effective April 1, 2007, and was readopted without substan-
tive change as the Insurance Code Chapter 4201 in the same
non-substantive Insurance Code revision. Pursuant to the In-
surance Code 4201.054, the Insurance Code Chapter 4201 ap-
plies to utilization review of a health care service provided to a
person eligible for workers' compensation medical benefits un-
der Title 5, Labor Code. These additions are also consistent
with the Government Code 2110.002(b), which provides that
the composition of an advisory committee that advises a state
agency regarding an industry or occupation regulated or directly
affected by the agency must provide a balanced representation
between the industry or occupation and consumers of services
provided by the agency, industry, or occupation. The addition
of these two representatives is permissible under the Insurance
Code 4201.003, which provides that the utilization review ad-
visory committee "includes" the representatives named within
the section. Pursuant to the Government Code 311.005(13),
the term "includes" is a term of enlargement and not of limita-
tion or exclusive enumeration, and use of the term does not cre-
ate a presumption that components not expressed are excluded.
Therefore, the Insurance Code 4201.003 does not prohibit the
inclusion of necessary industry and consumer representatives in
the utilization review advisory committee merely because they
are not expressly listed in the Insurance Code 4201.003. Ad-
ditionally, it is necessary to amend 19.1722(d)(1) to clarify that
the reference in existing 19.1722(d)(1) to one representative
for a "consumer group" is actually referring to one representa-
tive for a "health coverage consumer group." This reference in
existing 19.1722(d)(1) could result in confusion because it does
not specify the type of consumer group.
Proposed new 19.1722(e) addresses reporting requirements of
the committee. The subsection provides that after completion
of review and evaluation of proposed changes and additions to
the current utilization review rules in 28 TAC Chapter 19, Sub-
chapter R, or completion of any other tasks in accordance with
19.1722(c)(3), the advisory committee shall submit a report of
its recommendations to the Commissioner. Existing 19.1722(e)
is redesignated as 19.1722(f).34 TexReg 5486 August 14, 2009
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Texas. Secretary of State. Texas Register, Volume 34, Number 33, Pages 5445-5614, August 14, 2009, periodical, August 14, 2009; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth90865/m1/41/: accessed July 16, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.