Texas Preauthorization Gold Card Rules

Disclaimer

Please note that the content provided herein is informational only, and should NOT, in any way, be considered legal, professional, business, practice, or other advice. Consult your own practice adviser or attorney before taking any action or inaction based on this information.

The Texas Department of Insurance (TDI) published its gold card rule for state-regulated plans, effective Sept. 1, 2022, which allows physicians to provide certain medical services without requesting preauthorization from the health plan. The rule implements HB 3459 by establishing a process for granting, denying, and rescinding preauthorization exemption requests. TDI has published FAQs that provides information on the rules. TDI is also interested in hearing from stakeholders on how the preauthorization exemptions are impacting patients, physicians, and health benefit plan issuers. Please send such feedback to LHLMgmt@tdi.texas.gov. HCMS, the TMA, and other stakeholders are worked diligently in drafting and advocating for this legislation which was adopted into law during the 2021 Texas 87th legislative session. This precedent-setting legislation has had an impact in other states as well, inspiring them to introduce similar legislation.

In order to gauge compliance with the rule, physicians can keep a log of their preauthorization requests or claims related to services requiring preauthorization to ensure they are receiving an exemption when they have met the terms of the rule. A log can be found here. Additionally, HCMS is monitoring payor compliance with the rules. Please email us at  paymentadvocacy@hcms.org to report noncompliance or other concerns. HCMS has provided a brief podcast to provide some additional information.

Please note, if an exemption is granted, the exemption applies to all TDI regulated plans for that issuer as exemptions are granted at the issuer level, not the plan level. For example, if a physician obtains an exemption from issuer ABC-TX, it will apply to every TDI-regulated plan offered by ABC-TX.

Initial Review Period

For the determination of an exemption in the initial review period, January 1st through June 30th, 20221, an issuer must conduct an evaluation of all preauthorization requests submitted by each physician, identified using the NPI number,2 during the review period (only preauthorization requests that have been finalized prior to the evaluation may be included3). There must be at least 5 eligible preauthorization requests to review4 for each particular health care service and physicians must obtain a 90% approval5 during the most recent evaluation period to obtain an exemption.

For this initial evaluation period only (Jan. 1 - June 30, 2022), an issuer must provide notice granting or denying an exemption no later than October 1, 20226. Notice need only be provided if the issuer was able to complete an evaluation of at least 5 eligible preauthorization requests in the evaluation period7. The notice must provide information on how to appeal the exemption denial using the issuer's complaints and appeals processes, as well as information on how to file a complaint with the TDI.8

Subsequent Review Periods

For subsequent review periods, the evaluation, notice, and other requirements vary depending on a physician’s exempt status. However, just like the initial review period, a 90% approval rate must be achieved on preauthorization requests or claims submitted for each physician, identified using the NPI number, for each particular health care service during the most recent evaluation period to obtain an exemption as follows:

Evaluations:

When a physician does NOT already have an exemption:
An issuer must conduct an evaluation of all preauthorization requests submitted by the physician during the most recent evaluation period that were finalized prior to the evaluation and may not include a request that is pending appeal at the time the data is analyzed. There must be 5 or more eligible preauthorization requests to review to determine an exemption status.9 

When a physician HAS an exemption:
An issuer must conduct a retrospective review of a random sample of at least 5 and no more than 20 claims submitted during the most recent evaluation period to determine if the physician still qualifies for the exemption10. Medical records requested in connection with a retrospective review of a random sample of claims should be limited to no more than 20 claims for a particular health care service, and the issuer must provide at least 30 days for a physician or provider to provide the records. Records may only be requested during an evaluation period or within 90 days following the end of an evaluation period. If the physician fails to provide the records, the issuer may determine that the claim would not have met the screening criteria.11

Notices:

For evaluation periods (after the initial evaluation period in 2022) during which a physician does not have an exemption, an issuer must provide notice to the physician granting or denying an exemption no later than two months following the day after the end of the evaluation period12. After completing an evaluation, an issuer must provide a notice granting or denying an exemption within 5 days. Notice need only be provided if the issuer was able to complete an evaluation of at least 5 eligible preauthorization requests.

When granting an exemption:
An issuer must provide notice to the physician that includes a plain language explanation of the effect of the exemption and any claim coding guidance needed to document the exemption. The exemption begins on the date the notice is issued and must be in place for at least six months before it may be rescinded.13 

To retain an exemption, a physician must continue to maintain medical records adequate to demonstrate that health care services meet medical guidelines. In the absence of adequate records during an evaluation or appeal, an exemption may be rescinded.14

When denying an exemption: 
An issuer must provide notice to the physician that demonstrates that the physician does not meet the criteria for an exemption, has 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 department.15

When rescinding an exemption:
An issuer must provide notice to the physician (sample notice form LHL011). The rescission notice must be provided during January or June of each year, and not less than 25 days before the proposed rescission is to take effect. The notice must include the following:16

  • identify the health care service for which an exemption is being rescinded, the date the notice is issued, and the date the rescission is effective; 
  • a plain language explanation of how the physician may appeal and seek an independent review of the determination, the date the notice is issued, and the company's address and contact information for returning the form by mail or electronic means to request an appeal;
  • a statement of the total number of payable claims for the healthcare service that were eligible to be evaluated during the most recent evaluation, the number of claims included in the random sample, and the sample information used to make the determination;
  • a space to be filled out by the physician that includes:
    • the name, address, contact information, and identification number of the physician requesting an independent review;
    • an indication of whether the physician is requesting that the independent review organization review the same random sample or a different random sample of claims, if available; and
    • the date the appeal is being requested; and
  • an instruction for the physician to return the form to the issuer before the date the rescission becomes effective and to include applicable medical records for any determination that was based on a failure to provide medical records.

Other requirements:

  • An issuer must allow physicians to designate an email address or a mailing address for communications and must provide an option for physicians to submit a request for appeal by mail, email, or other electronic method. Issuers must include an explanation of how the physician may update their preferred contact information and delivery method on all communications issued under this section and on the website.17 
  • A physician will be identified using the National Provider Identifier (NPI).18
  • A treating physician may not rely on another physician's preauthorization exemption. However, a provider, such as a nurse or physician's assistant, who practices under the supervision of a physician, may rely on the supervising physician's exemption, if the provider appropriately orders care and requests preauthorization under the supervising physician's NPI.19
  • For care ordered by a physician with an exemption that is then rendered by a physician that does not have an exemption, the rendering physician must include the name and NPI of the ordering physician on the claim in fields 17 and 17B of CMS Form 1500, in fields 76 - 79 or another appropriate field in Form UB-04, or in the corresponding fields for electronic claims using the ASC X12N 837 format. If this information is not included, the issuer may treat the claim as subject to preauthorization.20 
  • To retain an exemption, a physician must continue to maintain medical records adequate to demonstrate that health care services meet medical guidelines. In the absence of adequate records during an evaluation or appeal, an exemption may be rescinded.21


Other Rules - Utilization Review Agents and Preauthorization Requests 

In any instance in which the Utilization Review Agent (URA) is questioning the approval of a preauthorization request, prior to denying the request the URA must afford the physician a reasonable opportunity to discuss the plan of treatment for the patient with a physician licensed to practice medicine in Texas who is of the same or similar specialty as the physician.22

  • The URA must provide the URA's telephone number so that the physician may contact the URA to discuss the pending adverse determination.
  • The URA must maintain, and submit to TDI on request, documentation that details the discussion opportunity provided to the physician of record, including the date and time the URA offered the opportunity to discuss the denial, the date and time that the discussion, if any, took place, and the discussion outcome.

References:

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.
Amended 28 TAC §12.4 and new 28 TAC Subchapter G, §12.601 - concerning review of preauthorization exemptions by independent review organizations (IROs).

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