28 Tex. Admin. Code § 180.26 - Criteria for Imposing, Recommending and Determining Sanctions; Other Remedies
(a) The division may
impose sanctions on any system participant if that system participant commits
an administrative violation.
(b)
The division may impose the following sanctions against a doctor or insurance
carrier for any reason listed in Labor Code §
408.0231(c)
or any other criteria the commissioner considers relevant:
(1) reduction of allowable reimbursement to a
doctor (such as an automatic percentage reduction on all or some types of
health care);
(2) mandatory
preauthorization or utilization review of all or certain health care treatments
and services (such as mandatory treatment plans);
(3) required supervision or peer review
monitoring, reporting, and audit (by the insurance carrier, the division, or an
independent auditor or reviewer);
(4) deletion or suspension from the
designated doctor list;
(5)
restrictions on appointments or reviews;
(6) conditions or restrictions on an
insurance carrier regarding actions by insurance carriers under the Act and
rules, that are not inconsistent with a memorandum of understanding adopted
between the commissioner and the commissioner of insurance regarding the
regulation of insurance carriers and utilization review agents as necessary to
ensure that appropriate health care decisions are reached under applicable
regulations by the department and the division, the Act, and Chapter 4201,
Insurance Code; and
(7) mandatory
participation in training classes or other courses as established or certified
by the division.
(c) In
addition to a penalty or the other sanctions that may be imposed in accordance
with other applicable provisions of the Act, the division may also impose the
following sanctions pursuant to Labor Code §
415.023(b)
against an insurance carrier or its representative, a health care provider, or
a representative of an injured employee or legal beneficiary if any of those
parties commit an administrative violation as a matter of practice, meaning a
repeated violation of the Act or a rule, order, or decision of the
commissioner:
(1) a reduction or denial of
fees;
(2) public or private
reprimand by the commissioner;
(3)
suspension from practice before the division;
(4) restriction, suspension, or revocation of
the right to receive reimbursement under the Act; and
(5) referral and petition to the appropriate
licensing authority for appropriate disciplinary action, including the
restriction, suspension, or revocation of the person's license.
(d) In addition to, or in lieu of,
the sanctions in subsections (b) and (c) of this section, the division may
impose any other sanction or remedy allowed under the Act or division rules,
including but not limited to assessing an administrative penalty of up to
$25,000 per violation against a person who commits an administrative
violation.
(e) When determining
which sanction to impose against a system participant and the severity of that
sanction, the division shall consider the factors listed in Labor Code §
415.021(c)
and other matters that justice may require, including but not limited to:
(1) Performance Based Oversight (PBO)
assessment;
(2) the promptness and
earnestness of actions to prevent future violations;
(3) self-report of the violation;
(4) the size of the company or
practice;
(5) the effect of a
sanction on the availability of health care; and
(6) evidence of heightened awareness of the
legal duty to comply with the Act and division rules.
(f) When determining which sanction to impose
against a system participant and the severity of that sanction in claims where
the insurance carrier provided notice under Section 409.021(a-3), (Notice of
Continuing Investigation), the division shall consider the factors listed in
Labor Code §
415.021(c-2).
(g) In an investigation where both an
administrative violation and a criminal prosecution are possible, the division
may, at its discretion, postpone action on the administrative violation until
the related criminal prosecution is completed.
(h) As an alternative to imposing a sanction
such as an administrative penalty on a charged system participant, the division
may, at its discretion, provide formal notice of the violation through a
Warning Letter. A Warning Letter shall:
(1)
include a summary of the duty that the division believes that the charged
system participant failed to fulfill or timely fulfill;
(2) identify the facts that establish that a
violation occurred; and
(3) inform
the charged system participant that subsequent noncompliance of the same sort
may be deemed to be a repeated administrative violation or matter of practice,
any of which will be subject to sanction.
(i) The division may enter into a consent
order with the system participant if the division and the system participant
have communicated regarding:
(1) the relevant
statute or rule violated;
(2) the
facts establishing that the administrative violation occurred; and
(3) the appropriateness of the proposed
sanction, including how the division considered the factors under Labor Code §
415.021(c) and
(c-2) and subsection (e) of this section in
determining the proposed sanction.
(j) A consent order may be entered into
before or after issuance of an NOV under §
180.8 of this title (relating to
Notices of Violation; Notices of Hearing; Default Judgments). Consent orders
must include:
(1) a description of which
factors under Labor Code §
415.021(c) and
(c-2) and subsection (e) of this section the
division considered aggravating or mitigating when determining the proposed
sanctions; and
(2) a statement that
the system participant acknowledges:
(A) the
division and the system participant communicated regarding the information
listed in subsection (h)(1) - (3) of this section; and
(B) the division considered the factors under
Labor Code §
415.021(c) and
(c-2) and subsection (e) of this
section.
Notes
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