Division Warns Parties: MMI and IR Evaluations May not be Performed via Telemedicine
The Texas Division of Workers’ Compensation has issued a pointed reminder to system stakeholders that doctors are not allowed to bill and be reimbursed for MMI and IR evaluations conducted through telemedicine or telehealth. In an April 29, 2020 memo, Commissioner of Workers’ Compensation Cassie Brown stated:
Doctors or other health care providers who violate [applicable Division] rules may commit an administrative violation and jeopardize their DWC certifications to provide these evaluations. Certified health care networks and insurance carriers that facilitate the billing of MMI and IR evaluations through telemedicine or telehealth under contracts or other agreements may also commit an administrative violation.
In the memo, the Commissioner noted that the billing codes for MMI and IR evaluations (99455 and 99456) are not included in the Centers for Medicare and Medicaid Services list of telemedicine or telehealth services. The Division has previously adopted by reference the CMS list of telemedicine and telehealth services in Rules 133.30 and 134.203. The Commissioner’s memo says, “Doctors who contract with certified health care networks under Insurance Code Chapter 1305 or perform services on a network claim through an out-of-network referral must also comply with DWC rules on billing and reimbursement.”
The Division has not suspended the ability of treating doctors or referral doctors to perform MMI or IR examinations in person even though on March 27, 2020 the Agency ceased ordering and suspended designated doctor exams, required medical exams, and referral exams that were already ordered for the duration of the governor’s COVID-19 declaration or until further notice from DWC.
When conducting MMI and IR evaluations, the Commissioner’s memo observes that doctors must comply with DWC rules, including:
• Rule 127.200, which requires designated doctors to be physically present in the room with the injured employee for examinations, including MMI and IR evaluations;
• Rules 130.1 and 130.3, which state that only doctors authorized by DWC can certify MMI and IR for an injured employee, and the certifying doctor must complete a DWC Form-069, Report of Medical Evaluation and a narrative report;
• Rule 130.2, which requires a certifying treating doctor or referral doctor to provide an injured employee with a notice at the end of the examination that the doctor’s MMI or IR certification may become final if not disputed in 90 days; and
• Rules 134.210 and 134.250, which list the billing codes and modifiers for MMI and IR evaluations.
When Will DDs and RMEs Resume?
The Division has not publicly stated how long the suspension of designated doctor and required medical examinations is expected to last. However, on April 27, 2020, Texas Governor Greg Abbott issued Executive Order GA-19 which ordered, effective May 1, 2020, that:
All licensed health care professionals shall be limited in their practice by, and must comply with, any emergency rules promulgated by their respective licensing agencies dictating minimum standards for safe practice during the COVID- 19 disaster.
Executive Order GA-19 will remain in full force and effect until modified, amended, rescinded, or superseded by the governor.
Guidance from Texas Medical Association
The Texas Medical Association has carefully reviewed the Governor’s Executive Orders related to COVID-19 and, on April 22, 2020, published a whitepaper describing the relationship between the Governor’s executive orders and the emergency rules issued by the Texas Medical Board that relate to non-urgent surgeries and procedures.
The whitepaper notes that, in the Board’s interpretation, “a ‘procedure’ does not include physical examinations, non-invasive diagnostic tests, the performing of lab tests, or obtaining specimens to perform laboratory tests” and medical acts such as a history, physical exam, non-invasive diagnostics, or lab tests” are not prohibited by the executive orders because they are not “procedures.”
The TMA whitepaper contains a section entitled “Decision Analysis” to help physicians make practice decisions based on TMB’s interpretation of the Governor’s executive orders.in that decision tree, the question is asked whether the medical act is a surgery or procedure. The analysis states that if the provider is performing another medical act, such as a history, physical exam, non-invasive diagnostics, or lab test, the physician may proceed with the medical act.
Guidance from Texas Board of Chiropractic Examiners
The Texas Board of Chiropractic Examiners issued an update for chiropractors on April 29, 2020 in which it advised that after having engaged in communications with the governor’s office, licensed chiropractors are “permitted to provide wellness care to patients as of May 1, 2020, with the understanding that they should continue to adhere to safety and prevention best practices specified in the most current advice from the Centers for Disease Control.”
Conclusion
These orders and rules lead us to believe that the Division may resume ordering DD and post-DD RME examinations to take place sooner, rather than later. We are watching this aspect of the effect of the pandemic on your business closely and are currently prepared to process your DWC-32 and DWC-22 requests promptly. In addition, we will continually keep you updated with new information as it becomes available.
If you have any questions regarding this memo, please contact Steve Tipton, Bobby Stokes or James Sheffield.
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