By Brimer, Junell, Janek, Eiland, Dukes, et al. H.B. No. 2600
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the provision of workers' compensation benefits and to
1-3 the operation of the workers' compensation insurance system;
1-4 providing penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 ARTICLE 1. APPROVED DOCTORS; MEDICAL REVIEW
1-7 SECTION 1.01. Subchapter B, Chapter 408, Labor Code, is
1-8 amended by amending Section 408.023 and adding Section 408.0231 to
1-9 read as follows:
1-10 Sec. 408.023. LIST OF APPROVED DOCTORS; DUTIES OF TREATING
1-11 DOCTORS. (a) The commission shall develop a list of doctors
1-12 licensed in this state who are approved to provide health care
1-13 services under this subtitle. Each doctor licensed in this state
1-14 on September 1, 2001, [January 1, 1993,] is eligible to be included
1-15 on the commission's list of approved doctors if the doctor:
1-16 (1) registers with the commission in the manner
1-17 prescribed by commission rules; and
1-18 (2) complies with the requirements adopted by the
1-19 commission under this section.
1-20 (b) The commission by rule shall establish reasonable
1-21 requirements for doctors and health care providers financially
1-22 related to those doctors regarding training, impairment rating
1-23 testing, and disclosure of financial interests as required by
1-24 Section 413.041, and for monitoring of those doctors and health
2-1 care providers as provided by Sections 408.0231 and 413.0512. The
2-2 commission by rule shall provide a reasonable period, not to exceed
2-3 18 months after the adoption of rules under this section, for
2-4 doctors to comply with the registration and training requirements
2-5 of this subchapter. Except as otherwise provided by this section,
2-6 the requirements under this subsection apply to doctors and health
2-7 care providers who:
2-8 (1) provide health care services as treating doctors;
2-9 (2) provide health care services as authorized by
2-10 Section 408.004 or 408.122;
2-11 (3) perform medical peer review under this subtitle;
2-12 (4) perform utilization review of medical benefits
2-13 provided under this subtitle; or
2-14 (5) provide health care services on referral from a
2-15 treating doctor, as provided by commission rule.
2-16 (c) The commission shall issue to a doctor who is approved
2-17 by the commission a certificate of registration. In determining
2-18 whether to issue a certificate of registration, the commission may
2-19 consider and condition its approval on any practice restrictions
2-20 applicable to the applicant that are relevant to services provided
2-21 under this subtitle. The commission may also consider the practice
2-22 restrictions of an applicant when determining appropriate sanctions
2-23 under Section 408.0231.
2-24 (d) A certificate of registration issued under this
2-25 subsection is valid, unless revoked or revised, for the period
2-26 provided by commission rule, and may be renewed on application to
2-27 the commission. The commission shall provide notice to each
3-1 doctor on the approved doctor list of the pending expiration of the
3-2 doctor's certificate of registration not later than the 60th day
3-3 before the date of expiration of the certificate [unless
3-4 subsequently deleted and not reinstated. The name of a doctor
3-5 shall be placed on the list of approved doctors when that doctor
3-6 becomes licensed in this state].
3-7 (e) Notwithstanding other provisions of this section, a [A]
3-8 doctor not licensed in this state but licensed in another state or
3-9 jurisdiction who treats employees or performs utilization review of
3-10 health care for an insurance carrier may apply for a certificate of
3-11 registration under this section [to the commission] to be included
3-12 on the commission's list of approved doctors.
3-13 (f) Except in an emergency or for immediate post-injury
3-14 medical care as defined by commission rule, or as provided by
3-15 Subsection (h) or (i), each doctor who performs functions under
3-16 this subtitle, including examinations under Sections 408.004 and
3-17 408.122, must hold a certificate of registration and be on the list
3-18 of approved doctors in order to perform services or receive payment
3-19 for those services.
3-20 (g) The commission by rule shall modify registration and
3-21 training requirements for doctors who infrequently provide health
3-22 care, perform utilization review or peer review functions for
3-23 insurance carriers, or participate in regional networks established
3-24 under this subchapter, as necessary to ensure that those doctors
3-25 are informed of the regulations that effect health care benefit
3-26 delivery under this subtitle.
3-27 (h) Notwithstanding Section 4(h), Article 21.58A, Insurance
4-1 Code, a utilization review agent that uses doctors to perform
4-2 reviews of health care services provided under this subtitle shall
4-3 perform the reviews under the direction of a doctor licensed to
4-4 practice in this state.
4-5 (i) The commission may grant exceptions to the requirement
4-6 imposed under Subsection (f) as necessary to ensure that:
4-7 (1) employees have access to health care; and
4-8 (2) insurance carriers have access to evaluations of
4-9 an employee's health care and income benefit eligibility as
4-10 provided by this subtitle.
4-11 (j) The injured employee's treating doctor is responsible
4-12 for the efficient management of medical care as required by Section
4-13 408.025(c) and commission rules. The commission shall collect
4-14 information regarding:
4-15 (1) return-to-work outcomes;
4-16 (2) patient satisfaction; and
4-17 (3) cost and utilization of health care provided or
4-18 authorized by a treating doctor on the list of approved doctors.
4-19 (k) The commission may adopt rules to define the role of the
4-20 treating doctor and to specify outcome information to be collected
4-21 for a treating doctor.
4-22 Sec. 408.0231. MAINTENANCE OF LIST OF APPROVED DOCTORS;
4-23 SANCTIONS AND PRIVILEGES RELATING TO HEALTH CARE. (a) The
4-24 executive director shall delete from the list of approved doctors a
4-25 doctor:
4-26 (1) who is deceased;
4-27 (2) whose license to practice in this state is revoked
5-1 or suspended by the appropriate licensing authority; or
5-2 (3) who requests to be removed from the list.
5-3 (b) The commission by rule shall establish criteria for:
5-4 (1) deleting a doctor from the list of approved
5-5 doctors;
5-6 (2) imposing sanctions on a doctor or an insurance
5-7 carrier as provided by this section;
5-8 (3) monitoring of utilization review agents, as
5-9 provided by a memorandum of understanding between the commission
5-10 and the Texas Department of Insurance; and
5-11 (4) authorizing increased or reduced utilization
5-12 review and preauthorization controls on a doctor.
5-13 (c) Rules adopted under Subsection (b) are in addition to,
5-14 and do not affect, the rules adopted under Section 415.023(b). The
5-15 criteria for deleting a doctor from the list or for recommending or
5-16 imposing sanctions may include anything the commission considers
5-17 relevant, including:
5-18 (1) a sanction [sanctions] of the doctor by the
5-19 commission for a violation [violations] of Chapter 413 or Chapter
5-20 415;
5-21 (2) a sanction [sanctions] by the Medicare or Medicaid
5-22 program for:
5-23 (A) substandard medical care;
5-24 (B) overcharging; [or]
5-25 (C) overutilization of medical services; or
5-26 (D) any other substantive noncompliance with
5-27 requirements of those programs regarding professional practice or
6-1 billing;
6-2 (3) evidence from the commission's medical records
6-3 that the applicable insurance carrier's utilization review
6-4 practices or the doctor's charges, fees, diagnoses, [or]
6-5 treatments, evaluations, or impairment ratings are substantially
6-6 different from those the commission finds to be fair and reasonable
6-7 based on either a single determination or a pattern of practice;
6-8 [and]
6-9 (4) a suspension or other relevant practice
6-10 restriction of the doctor's license by an [the] appropriate
6-11 licensing authority;
6-12 (5) professional failure to practice medicine or
6-13 provide health care, including chiropractic care, in an acceptable
6-14 manner consistent with the public health, safety, and welfare;
6-15 (6) findings of fact and conclusions of law made by a
6-16 court, an administrative law judge of the State Office of
6-17 Administrative Hearings, or a licensing or regulatory authority; or
6-18 (7) a criminal conviction.
6-19 (d) [(c)] The commission by rule shall establish procedures
6-20 under which [for] a doctor may [to] apply for:
6-21 (1) reinstatement to the list of approved doctors; or
6-22 (2) restoration of doctor practice privileges removed
6-23 by the commission based on sanctions imposed under this section.
6-24 (e) The commission shall act on a recommendation by the
6-25 medical advisor selected under Section 413.0511, and, after notice
6-26 and the opportunity for a hearing, may impose sanctions under this
6-27 subsection on a doctor or an insurance carrier or may recommend
7-1 action regarding a utilization review agent. The commission and
7-2 the Texas Department of Insurance shall enter into a memorandum of
7-3 understanding to coordinate the regulation of insurance carriers
7-4 and utilization review agents as necessary to ensure:
7-5 (1) compliance with applicable regulations; and
7-6 (2) that appropriate health care decisions are reached
7-7 under this subtitle and under Article 21.58A, Insurance Code.
7-8 (f) The sanctions the commission may recommend or impose
7-9 under this section include:
7-10 (1) reduction of allowable reimbursement;
7-11 (2) mandatory preauthorization of all or certain
7-12 health care services;
7-13 (3) required peer review monitoring and audit;
7-14 (4) deletion from the approved doctor list and the
7-15 designated doctor list;
7-16 (5) restrictions on appointment as a designated doctor
7-17 under Section 408.004;
7-18 (6) conditions or restrictions on an insurance carrier
7-19 regarding actions by insurance carriers under this subtitle in
7-20 accordance with the memorandum of understanding adopted between the
7-21 commission and the Texas Department of Insurance regarding Article
7-22 21.58A, Insurance Code; and
7-23 (7) mandatory participation in training classes or
7-24 other courses as established or certified by the commission.
7-25 SECTION 1.02. Subchapter E, Chapter 413, Labor Code, is
7-26 amended by amending Section 413.051 and adding Sections 413.0511,
7-27 413.0512, and 413.0513 to read as follows:
8-1 Sec. 413.051. CONTRACTS WITH REVIEW ORGANIZATIONS AND HEALTH
8-2 CARE PROVIDERS. (a) The commission may contract with a health care
8-3 provider, health care provider professional review organization, or
8-4 other entity to develop, maintain, or review medical policies or
8-5 fee guidelines or to review compliance with the medical policies or
8-6 fee guidelines.
8-7 (b) For purposes of review or resolution of a dispute as to
8-8 compliance with the medical policies or fee guidelines, the
8-9 commission may contract [only] with a health care provider, health
8-10 care provider professional review organization, or other entity
8-11 that includes in the review process health care practitioners who
8-12 are licensed in the category under review and are of the same field
8-13 or specialty as the category under review.
8-14 (c) The commission may contract with a health care provider,
8-15 health care provider professional review organization, or other
8-16 entity for medical consultant services, including:
8-17 (1) independent medical examinations;
8-18 (2) medical case reviews; or
8-19 (3) establishment of medical policies and fee
8-20 guidelines.
8-21 (d) The commission shall establish standards for contracts
8-22 under this section.
8-23 (e) For purposes of this section, the term "health care
8-24 provider professional review organization" includes an independent
8-25 review organization.
8-26 Sec. 413.0511. MEDICAL ADVISOR. (a) The commission shall
8-27 employ or contract with a medical advisor, who must be a doctor as
9-1 that term is defined by Section 401.011.
9-2 (b) The medical advisor shall make recommendations regarding
9-3 the adoption of rules to:
9-4 (1) develop, maintain, and review health care
9-5 guidelines and fee guidelines as provided by Section 413.011,
9-6 including rules regarding impairment ratings;
9-7 (2) review compliance with those guidelines;
9-8 (3) regulate other acts related to medical benefits as
9-9 required by the commission;
9-10 (4) impose sanctions or delete doctors from the
9-11 commission's list of approved doctors under Section 408.023 for:
9-12 (A) any reason described by Section 408.0231; or
9-13 (B) noncompliance with commission rules;
9-14 (5) impose conditions or restrictions as authorized by
9-15 Section 408.0231(f);
9-16 (6) receive confidential information from the Texas
9-17 State Board of Medical Examiners and the Texas Board of
9-18 Chiropractic Examiners regarding disciplinary actions imposed on a
9-19 physician or a chiropractor who applies for registration or is
9-20 registered with the commission on the list of approved doctors; and
9-21 (7) determine minimal modifications to the
9-22 reimbursement methodology and model used by the Medicare system as
9-23 necessary to meet occupational injury requirements.
9-24 Sec. 413.0512. MEDICAL QUALITY REVIEW PANEL. (a) The
9-25 medical advisor shall establish a medical quality review panel of
9-26 health care providers to assist the medical advisor in performing
9-27 the duties required under Section 413.0511. The panel is
10-1 independent of the medical advisory committee created under Section
10-2 413.005 and is not subject to Chapter 2110, Government Code.
10-3 (b) The Texas State Board of Medical Examiners and the Texas
10-4 Board of Chiropractic Examiners, with input from their respective
10-5 professional associations, shall develop lists of physicians and
10-6 chiropractors licensed by those agencies who have demonstrated
10-7 experience in workers' compensation or utilization review. The
10-8 medical advisor shall consider appointing some of the members of
10-9 the medical quality review panel from the names on those lists.
10-10 The medical advisor may also consider nominations for the panel
10-11 made by labor, business, and insurance organizations.
10-12 (c) The medical quality review panel shall recommend to the
10-13 medical advisor:
10-14 (1) appropriate action regarding doctors, health care
10-15 providers, insurance carriers, and utilization review agents; and
10-16 (2) the addition or deletion of doctors from the list
10-17 of approved doctors under Section 408.023 or the list of designated
10-18 doctors established under Section 408.122.
10-19 (d) A person who serves on the medical quality review panel
10-20 is not liable in a civil action for an act performed in good faith
10-21 as a member of the panel and is entitled to the same protections
10-22 afforded a commission member under Section 402.010.
10-23 (e) The actions of a person serving on the medical quality
10-24 review panel do not constitute utilization review and are not
10-25 subject to Article 21.58A, Insurance Code.
10-26 Sec. 413.0513. CONFIDENTIALITY REQUIREMENTS. (a)
10-27 Information maintained by or on behalf of the commission under
11-1 Section 413.0512, and that is confidential under law, may not be
11-2 disclosed under Section 413.0512 except:
11-3 (1) in a criminal proceeding;
11-4 (2) in a hearing conducted by or on behalf of the
11-5 commission;
11-6 (3) in a hearing conducted by another licensing or
11-7 regulatory authority, as provided in the interagency agreement; or
11-8 (4) on a finding of good cause in an administrative or
11-9 judicial proceeding involving the enforcement of this subtitle or
11-10 in a disciplinary action under this subtitle.
11-11 (b) Confidential information developed by the commission
11-12 under Section 413.0512 is not subject to discovery or court
11-13 subpoena in any action other than:
11-14 (1) an action to enforce this subtitle brought by the
11-15 commission, an appropriate licensing or regulatory agency, or an
11-16 appropriate enforcement authority; or
11-17 (2) a criminal proceeding.
11-18 SECTION 1.03. (a) The Texas Workers' Compensation Commission
11-19 shall adopt rules as required by Chapter 408, Labor Code, as
11-20 amended by this article, not later than February 1, 2002.
11-21 (b) A doctor is not required to hold a certificate of
11-22 registration issued under Section 408.023, Labor Code, as amended
11-23 by this article, to perform medical services under Subtitle A,
11-24 Title 5, Labor Code, before the date provided by commission rules
11-25 adopted to implement that section.
11-26 ARTICLE 2. MEDICAL NETWORK PARTICIPATION OPTION
11-27 SECTION 2.01. Subchapter B, Chapter 408, Labor Code, is
12-1 amended by adding Sections 408.0221, 408.0222, and 408.0223 to read
12-2 as follows:
12-3 Sec. 408.0221. REGIONAL HEALTH CARE DELIVERY NETWORKS;
12-4 ADVISORY COMMITTEE. (a) In this section:
12-5 (1) "Advisory committee" means the Health Care Network
12-6 Advisory Committee.
12-7 (2) "Regional network" means a regional workers'
12-8 compensation health care delivery network established by the
12-9 commission under this section.
12-10 (b) The Health Care Network Advisory Committee is
12-11 established to advise the commission on the implementation of this
12-12 section and Section 408.0222. Members of the advisory committee
12-13 are appointed by and serve at the pleasure of the governor, with
12-14 the membership as follows:
12-15 (1) three employee representatives recommended by a
12-16 recognized statewide labor federation;
12-17 (2) three employer representatives;
12-18 (3) two ex officio insurance carrier representatives;
12-19 (4) two ex officio health care provider
12-20 representatives; and
12-21 (5) the commission's medical advisor, who shall serve
12-22 as chair of the advisory committee.
12-23 (c) The commission, on behalf of the advisory committee
12-24 established under this section, shall establish and, through
12-25 competitive procurement, contract with regional networks for the
12-26 provision of health care under this subtitle. The commission
12-27 shall, through competitive procurement, contract with one or more
13-1 organizations to determine the feasibility of, develop, and
13-2 evaluate the regional networks established under this section.
13-3 Those organizations shall also recommend to the advisory committee
13-4 appropriate network standards and application requirements and
13-5 assist the advisory committee during the procurement process. The
13-6 regional networks shall be fee-for-service networks designed to
13-7 improve the quality and reduce the cost of health care with active
13-8 health care management and monitoring and a full range of health
13-9 care services under contract as considered feasible by the
13-10 commission.
13-11 (d) The advisory committee shall make recommendations to the
13-12 commission regarding:
13-13 (1) the development of the standards by which health
13-14 care services are provided through regional networks;
13-15 (2) regional network application requirements and
13-16 fees;
13-17 (3) contract proposals;
13-18 (4) the feasibility of establishing one or more
13-19 regional networks using a phased implementation and evaluation
13-20 process;
13-21 (5) the use of consultants as necessary to assist the
13-22 commission in the procurement of regional network contracts; and
13-23 (6) the selection of administrators to build and
13-24 manage the regional networks and to report on their progress.
13-25 (e) The advisory committee shall gather information from
13-26 other entities, including the Research and Oversight Council on
13-27 Workers' Compensation, the Texas Health Care Information Council,
14-1 the Texas Department of Insurance, the Texas Department of Health,
14-2 and the Employees Retirement System of Texas.
14-3 (f) The standards adopted for preferred provider networks
14-4 under Article 3.70-3C, Insurance Code, as added by Chapter 1024,
14-5 Acts of the 75th Legislature, Regular Session, 1997, apply as
14-6 minimum standards for regional health care delivery networks
14-7 created under this section and are adopted by reference in this
14-8 section except to the extent they are inconsistent with this
14-9 subtitle. The advisory committee may also recommend additional
14-10 standards, including standards that require:
14-11 (1) for each geographic region, access to an adequate
14-12 number of health care providers and treating doctors in each health
14-13 care discipline and the professional specialties within those
14-14 disciplines and the use of economic profiling to ensure a viable
14-15 network as described by Article 3.70-3C, Insurance Code, as added
14-16 by Chapter 1024, Acts of the 75th Legislature, Regular Session,
14-17 1997;
14-18 (2) the ability of an employee to receive treatment by
14-19 a regional network provider within a reasonable amount of time of
14-20 the regional network's knowledge of the need or request for
14-21 treatment and within a reasonable travel distance for the employee;
14-22 (3) a reasonable effort by the regional network to
14-23 attract health care providers who reflect the ethnic and cultural
14-24 background of the regional employee population;
14-25 (4) the availability of board-certified occupational
14-26 medicine specialists to provide expertise on disability management
14-27 and prevention and treatment of occupational injuries and
15-1 illnesses;
15-2 (5) accreditation of the regional networks or a
15-3 commitment to seek accreditation from a nationally recognized
15-4 organization such as the American Accreditation HealthCare
15-5 Commission or the National Committee for Quality Assurance;
15-6 (6) the use of strict credentialing criteria by
15-7 regional networks in the selection and deselection of its health
15-8 care providers, including verification that the provider:
15-9 (A) is on the commission's list of approved
15-10 doctors, if the provider is required to be on that list;
15-11 (B) has not been sanctioned or made subject to
15-12 additional utilization review requirements by the commission;
15-13 (C) is not, at the time of selection, subject to
15-14 sanctions or substantive practice restrictions imposed by the
15-15 provider's licensing authority;
15-16 (D) has or is able to obtain practice
15-17 privileges, if required, at a participating hospital; and
15-18 (E) is covered by medical malpractice insurance
15-19 coverage as required by the regional network contract;
15-20 (7) satisfactory evidence of the regional network's
15-21 ability to comply with any financial requirements and ensure
15-22 delivery of services;
15-23 (8) compliance with ongoing training and educational
15-24 requirements established by the commission;
15-25 (9) the use of nationally recognized, scientifically
15-26 valid, and outcome-based treatment standards as guidelines for
15-27 health care;
16-1 (10) disclosure of the availability of interpreter
16-2 services as appropriate for the evaluation and treatment of
16-3 employees;
16-4 (11) timely and accurate reporting of data to
16-5 appropriately manage and determine the effectiveness of the
16-6 regional network in reducing medical costs and ensuring quality of
16-7 care; and
16-8 (12) a process for reconsideration of medical
16-9 necessity denials and resolution of medical necessity disputes
16-10 within the regional network.
16-11 (g) The advisory committee and the Research and Oversight
16-12 Council on Workers' Compensation shall develop evaluation standards
16-13 and specifications as necessary to implement a workers'
16-14 compensation medical regional network report card. The commission
16-15 shall ensure that the report card is published and available for
16-16 inspection. The commission may procure services as necessary to
16-17 produce the report card. The report card, at a minimum, must be
16-18 based on contracted reviews and must include a risk-adjusted
16-19 evaluation of:
16-20 (1) employee access to care;
16-21 (2) coordination of care and return to work;
16-22 (3) communication among system participants;
16-23 (4) return-to-work outcomes;
16-24 (5) health-related outcomes;
16-25 (6) employee, health care provider, employer, and
16-26 insurance carrier satisfaction;
16-27 (7) disability and re-injury prevention;
17-1 (8) appropriate clinical care;
17-2 (9) health care costs;
17-3 (10) utilization of health care; and
17-4 (11) statistical outcomes of medical dispute
17-5 resolution provided by independent review organizations.
17-6 (h) The regional network administrators shall report
17-7 quarterly to the commission and the advisory committee on the
17-8 progress of implementing the regional networks and shall submit
17-9 consolidated annual reports. The Research and Oversight Council on
17-10 Workers' Compensation shall report to the legislature by January 1
17-11 of each odd-numbered year on the status of the implementation of
17-12 regional networks under this section.
17-13 (i) The commission shall ensure that regional network
17-14 contracts provide that insurance carriers have reasonable rights to
17-15 conduct audits under this subsection. Insurance carriers
17-16 participating in the regional network shall be allowed the
17-17 opportunity for consolidated audits of the regional networks.
17-18 (j) The cost of assessing the feasibility of, developing,
17-19 and evaluating the regional networks created under this section
17-20 shall be funded through an assessment on the subsequent injury fund
17-21 established under Section 403.006. This cost may not exceed
17-22 $250,000 per regional network or a total of $1.5 million for up to
17-23 six regional networks. The cost of ongoing regional network
17-24 administration and management services shall be included in the
17-25 fees for health care services paid by insurance carriers
17-26 participating in the regional network.
17-27 Sec. 408.0222. PARTICIPATION IN REGIONAL NETWORK; SELECTION
18-1 OF DOCTOR WITHIN REGIONAL NETWORK; BENEFIT INCENTIVES. (a) An
18-2 insurance carrier or a self-insurer certified to provide workers'
18-3 compensation coverage in this state may elect to participate, by
18-4 contract, in a regional network established under Section 408.0221.
18-5 A public employer covered under Subtitle C of this title, other
18-6 than an employer covered under Chapter 504, is required to
18-7 participate in a regional network established under Section
18-8 408.0221. An insurance carrier who elects to participate in
18-9 regional networks agrees to abide by the terms of the regional
18-10 network contracts between the commission and the regional networks.
18-11 (b) An insurance carrier may limit its election to
18-12 participate in a regional network established under Section
18-13 408.0221 to a particular employer or a particular region of this
18-14 state. This subsection expires January 1, 2006.
18-15 (c) A doctor participating in a regional network established
18-16 under Section 408.0221 may perform only those procedures that are
18-17 within the scope of the practice for which the doctor is licensed.
18-18 (d) An employee may elect to participate or not participate
18-19 in a regional network established under Section 408.0221. Only an
18-20 employee covered by an insurance carrier who has elected to
18-21 participate in a regional network established under Section
18-22 408.0221 may elect to participate in that regional network. The
18-23 commission, by rule, shall establish the form and manner by which
18-24 an employee receives notice of the employee's rights under this
18-25 section. Except as provided by Subsection (e), an employee may
18-26 make the election described by this subsection at the time of
18-27 employment or may make that election or rescind an election made
19-1 under this subsection at any later time before the earlier of:
19-2 (1) the date on which the employee begins to receive
19-3 enhanced income benefits under Subsection (l); or
19-4 (2) the 14th day after the date on which the employee
19-5 incurs a compensable injury.
19-6 (e) An employee may elect to participate in a regional
19-7 network established under Section 408.0221 at any time with the
19-8 insurance carrier's permission. An employee is not bound by an
19-9 election to participate in a regional network made under
19-10 Subsection (d) or this subsection if:
19-11 (1) the insurance carrier waives the election;
19-12 (2) the commission invalidates the election based on a
19-13 determination of coercion; or
19-14 (3) the employee relocates to an area outside of the
19-15 regional network's service area, and the regional network is not
19-16 able to identify alternate network providers to provide health care
19-17 services reasonable for the employee's medical condition.
19-18 (f) An insurance carrier who elects to participate in a
19-19 regional network established under Section 408.0221 shall provide
19-20 each employer who obtains coverage through the insurance carrier
19-21 with adequate information about the regional network to share with
19-22 the employer's employees. Before an employee makes an election
19-23 under this section to participate in a regional network, the
19-24 employer shall provide the employee with:
19-25 (1) a complete, plain-language description of the
19-26 regional network's services, restrictions, and benefits, including
19-27 a description of the enhanced income benefits that may be due; and
20-1 (2) access to the most recent:
20-2 (A) list of doctors available through the
20-3 regional network; and
20-4 (B) regional network report card developed under
20-5 Section 408.0221.
20-6 (g) An employer shall not discharge, subject to disciplinary
20-7 action, or take an adverse employment action against an employee
20-8 who elects not to participate in a regional network created under
20-9 Section 408.0221 if the employer's action would not have occurred
20-10 in the absence of the employee's election not to participate.
20-11 (h) An employee may bring suit against an employer for
20-12 violation of Subsection (g) if:
20-13 (1) the employee gives written notice of intent to
20-14 bring suit to the employer within 60 days of the alleged violation;
20-15 and
20-16 (2) the employer does not reinstate the employee and
20-17 pay actual wages lost and reasonable attorney's fees incurred due
20-18 to the employer's action within 60 days of notification of the
20-19 employee's intent to bring suit.
20-20 (i) The employee must bring suit for an employer's violation
20-21 of Subsection (g) within 120 days of the alleged violation. A suit
20-22 under this section may be brought in the county in which:
20-23 (1) the plaintiff resides;
20-24 (2) the plaintiff was employed; or
20-25 (3) the defendant's primary place of business is
20-26 located.
20-27 (j) If the employee prevails in an action under Subsection
21-1 (h), the employee may recover:
21-2 (1) lost wages;
21-3 (2) reinstatement of front pay as equitable relief in
21-4 lieu of reinstatement;
21-5 (3) reasonable attorney's fees; and
21-6 (4) court costs.
21-7 (k) A suit under this section is the exclusive remedy for
21-8 violation of Subsection (g) and the provisions of Chapter 451 do
21-9 not apply to such a violation. Parties may not maintain an action
21-10 under Rule 42, Texas Rules of Civil Procedure.
21-11 (l) An employee who elects to participate in a regional
21-12 network created under Section 408.0221 shall receive:
21-13 (1) notwithstanding Section 408.082(c), income
21-14 benefits from the date disability begins if the disability lasts
21-15 two weeks or longer; and
21-16 (2) notwithstanding Section 408.061, an increased
21-17 maximum weekly benefit of up to 150 percent of the state average
21-18 weekly wage for temporary income benefits.
21-19 (m) Except for emergency care, or as otherwise provided by
21-20 this section, an employee who elects to participate in a regional
21-21 network shall receive medical treatment, including referrals, from
21-22 health care providers within the regional network. An employee or
21-23 an employee's treating doctor may use a health care provider
21-24 outside of the regional network with the approval of the regional
21-25 network for good cause consistent with the regional network
21-26 contract. If medically necessary services are not available
21-27 through regional network health care providers, the regional
22-1 network must, on the request of a regional network health care
22-2 provider, within a reasonable time period allow a referral to a
22-3 nonregional network health care provider and shall fully reimburse
22-4 the nonregional network physician or provider at an agreed rate.
22-5 For purposes of this subsection, "emergency care" has the meaning
22-6 assigned by Section 2(g), Texas Health Maintenance Organization Act
22-7 (Article 20A.02, Vernon's Texas Insurance Code).
22-8 (n) A health care provider who participates in a regional
22-9 network created under Section 408.0221 shall be reimbursed and be
22-10 subject to utilization review as provided by the regional network
22-11 contract. The insurance carrier is responsible for payment of
22-12 regional network providers as provided by the contract between the
22-13 regional network and the insurance carrier. A nonregional network
22-14 provider who does not obtain the approval of the regional network
22-15 to provide services may not be reimbursed by the insurance carrier.
22-16 (o) To resolve an issue regarding the necessity or the
22-17 appropriateness of care, or referrals to nonregional network
22-18 physicians or providers, an employee or an employee's treating
22-19 doctor may request a review by an independent review organization
22-20 under Section 413.031(c).
22-21 (p) An employee who elects to participate in a regional
22-22 network established under Section 408.0221 shall select an initial
22-23 treating doctor within the regional network as provided by the
22-24 regional network contract. An employee may change treating doctors
22-25 within the regional network in accordance with Sections 408.022(d)
22-26 and (e). An employee who requests to change treating doctors
22-27 within the regional network is not subject to Section 408.022(b) or
23-1 (c). At the sole discretion of the regional network, an employee
23-2 may select a treating doctor outside of the regional network if:
23-3 (1) the employee has a pre-existing relationship with
23-4 a doctor who maintains the employee's medical records and has a
23-5 documented history of treatment before the date of injury; and
23-6 (2) that doctor agrees in writing to abide by the
23-7 rules, terms, and conditions of the regional network contract,
23-8 including an agreement to refer the employee within the regional
23-9 network for services available through the regional network.
23-10 (q) An employee is subject to the selection of doctor,
23-11 change of doctor, and other medical benefit and income benefit
23-12 requirements established under Chapters 408 and 413 if an employee:
23-13 (1) elects not to participate in a regional network
23-14 established under Section 408.0221; or
23-15 (2) is covered by an insurance carrier that has not
23-16 elected to participate in a regional network established under
23-17 Section 408.0221.
23-18 (r) An employee may change treating doctors within the
23-19 regional network established under Section 408.0221 in which the
23-20 employee is participating in accordance with the regional network
23-21 contract and is entitled to:
23-22 (1) make one change from the initial treating doctor
23-23 to an alternate treating doctor within the regional network unless
23-24 the initial treating doctor has found that the employee has reached
23-25 maximum medical improvement, in which case the commission shall
23-26 appoint a designated doctor on the request of the employee as
23-27 provided by Section 408.0041; and
24-1 (2) request additional changes of the treating doctor
24-2 in the manner provided by the regional network contract.
24-3 Sec. 408.0223. INSURANCE CARRIER NETWORKS. (a) In this
24-4 section, "insurance carrier network" means a voluntary workers'
24-5 compensation health care delivery network established by an
24-6 insurance carrier. The term does not include a regional network
24-7 established under Section 408.0221.
24-8 (b) This subtitle does not prohibit an insurance carrier,
24-9 whether doing business as an individual carrier or as a group, from
24-10 participating in or maintaining voluntary insurance carrier
24-11 networks if those voluntary insurance carrier networks allow
24-12 selection of doctors as provided by Section 408.022.
24-13 (c) This subtitle does not prohibit an insurance carrier
24-14 from concurrently participating in an insurance carrier network and
24-15 a regional network established under Section 408.0221.
24-16 SECTION 2.02. (a) The Texas Workers' Compensation Commission
24-17 shall adopt rules as required by Chapter 408, Labor Code, as
24-18 amended by this article, not later than October 1, 2002.
24-19 (b) The Texas Workers' Compensation Commission shall convene
24-20 the first meeting of the Health Care Network Advisory Committee
24-21 established under Section 408.0221, Labor Code, as added by this
24-22 article, not later than October 1, 2001.
24-23 (c) Unless determined to be unfeasible, the Texas Workers'
24-24 Compensation Commission shall contract for regional workers'
24-25 compensation health care delivery networks under Section 408.0221,
24-26 Labor Code, as added by this article, not later than December 31,
24-27 2002.
25-1 (d) Section 408.0222, Labor Code, as added by this article,
25-2 as that section affects workers' compensation benefits an employee
25-3 may receive for participating in a regional network under Section
25-4 408.0221, Labor Code, as added by this article, takes effect on the
25-5 certification by the Texas Workers' Compensation Commission that
25-6 the regional network is operational.
25-7 ARTICLE 3. RETURN-TO-WORK REPORTING AND SERVICES
25-8 SECTION 3.01. Section 409.005, Labor Code, is amended to read
25-9 as follows:
25-10 Sec. 409.005. REPORT OF INJURY; MODIFIED DUTY PROGRAM
25-11 NOTICE; ADMINISTRATIVE VIOLATION. (a) An employer shall report to
25-12 the employer's insurance carrier if:
25-13 (1) an injury results in the absence of an employee of
25-14 that employer from work for more than one day; or
25-15 (2) an employee of the employer notifies that employer
25-16 of an occupational disease under Section 409.001.
25-17 (b) The report under Subsection (a) must be made not later
25-18 than the eighth day after:
25-19 (1) the employee's absence from work for more than one
25-20 day due to an injury; or
25-21 (2) the day on which the employer receives notice
25-22 under Section 409.001 that the employee has contracted an
25-23 occupational disease.
25-24 (c) The employer shall deliver a written copy of the report
25-25 under Subsection (a) to the injured employee at the time that the
25-26 report is made to the insurance carrier.
25-27 (d) The insurance carrier shall file the report of the
26-1 injury on behalf of the policyholder. Except as provided by
26-2 Subsection (e), the insurance carrier must electronically file the
26-3 report with the commission not later than the seventh day after the
26-4 date on which the carrier receives the report from the employer.
26-5 (e) The executive director may waive the electronic filing
26-6 requirement under Subsection (d) and allow an insurance carrier to
26-7 mail or deliver the report to the commission not later than the
26-8 seventh day after the date on which the carrier receives the report
26-9 from the employer.
26-10 (f) A report required under this section may not be
26-11 considered to be an admission by or evidence against an employer or
26-12 an insurance carrier in a proceeding before the commission or a
26-13 court in which the facts set out in the report are contradicted by
26-14 the employer or insurance carrier.
26-15 (g) In addition to any information required under Subsection
26-16 (h), the report provided to the injured employee under Subsection
26-17 (c) must contain a summary written in plain language of the
26-18 employee's statutory rights and responsibilities under this
26-19 subtitle.
26-20 (h) The commission may adopt rules relating to:
26-21 (1) the information that must be contained in a report
26-22 required under this section, including the summary of rights and
26-23 responsibilities required under Subsection (g); and
26-24 (2) the development and implementation of an
26-25 electronic filing system for injury reports under this section.
26-26 (i) An employer and insurance carrier shall file subsequent
26-27 reports as required by commission rule.
27-1 (j) The employer shall, on the written request of the
27-2 employee, a doctor, the insurance carrier, or the commission,
27-3 notify the employee, the employee's treating doctor if known to the
27-4 employer, and the insurance carrier of the existence or absence of
27-5 opportunities for modified duty or a modified duty return-to-work
27-6 program available through the employer. If those opportunities or
27-7 that program exists, the employer shall identify the employer's
27-8 contact person and provide other information to assist the treating
27-9 doctor, the employee, and the insurance carrier to assess modified
27-10 duty or return-to-work options.
27-11 (k) A person commits a violation if the person fails to
27-12 comply with this section unless good cause exists. A violation
27-13 under this subsection is a Class D administrative violation.
27-14 SECTION 3.02. Subchapter B, Chapter 413, Labor Code, is
27-15 amended by adding Section 413.021 to read as follows:
27-16 Sec. 413.021. RETURN-TO-WORK COORDINATION SERVICES. (a) An
27-17 insurance carrier shall, with the agreement of a participating
27-18 employer, provide the employer with return-to-work coordination
27-19 services as necessary to facilitate an employee's reintegration to
27-20 employment. The insurance carrier shall notify the employer of the
27-21 availability of return-to-work coordination services. In offering
27-22 the services, insurance carriers and the commission shall target
27-23 employers without return-to-work programs and shall focus
27-24 return-to-work efforts on workers who begin to receive temporary
27-25 income benefits. These services may be offered by insurance
27-26 carriers in conjunction with the accident prevention services
27-27 provided under Section 411.061. Nothing in this section supersedes
28-1 the provisions of a collective bargaining agreement between an
28-2 employer and the employer's employees, and nothing in this section
28-3 authorizes or requires an employer to engage in conduct that would
28-4 otherwise be a violation of the employer's obligations under the
28-5 National Labor Relations Act (29 U.S.C. Section 151 et seq.), and
28-6 its subsequent amendments.
28-7 (b) Return-to-work coordination services under this section
28-8 may include:
28-9 (1) job analysis to identify the physical demands of a
28-10 job;
28-11 (2) job modification and restructuring assessments as
28-12 necessary to match job requirements with the functional capacity of
28-13 an employee; and
28-14 (3) medical or vocational case management to
28-15 coordinate the efforts of the employer, the treating doctor, and
28-16 the injured employee to achieve timely return to work.
28-17 (c) An insurance carrier is not required to provide physical
28-18 workplace modifications under this section and is not liable for
28-19 the cost of modifications made under this section to facilitate an
28-20 employee's return to employment.
28-21 (d) The commission shall use certified rehabilitation
28-22 counselors or other appropriately trained or credentialed
28-23 specialists to provide training to commission staff regarding the
28-24 coordination of return-to-work services under this section.
28-25 (e) The commission shall adopt rules necessary to collect
28-26 data on return-to-work outcomes to allow full evaluations of
28-27 successes and of barriers to achieving timely return to work after
29-1 an injury.
29-2 (f) The commission shall report twice annually to the
29-3 Research and Oversight Council on Workers' Compensation regarding
29-4 the implementation and outcome of the return-to-work initiatives
29-5 required by this section.
29-6 SECTION 3.03. The Texas Workers' Compensation Commission may
29-7 adopt rules as necessary to implement Sections 409.005(j) and
29-8 413.021, Labor Code, as added by this article, not earlier than
29-9 January 1, 2004.
29-10 ARTICLE 4. PREAUTHORIZATION, CONCURRENT REVIEW,
29-11 AND CERTIFICATION REQUIREMENTS
29-12 SECTION 4.01. Section 408.026, Labor Code, is amended to read
29-13 as follows:
29-14 Sec. 408.026. SPINAL SURGERY [SECOND OPINION]. [(a)] Except
29-15 in a medical emergency, an insurance carrier is liable for medical
29-16 costs related to spinal surgery only as provided by Section 413.014
29-17 and commission rules [if:]
29-18 [(1) before surgery, the employee obtains from a
29-19 doctor approved by the insurance carrier or the commission a second
29-20 opinion that concurs with the treating doctor's recommendation;]
29-21 [(2) the insurance carrier waives the right to an
29-22 examination or fails to request an examination before the 15th day
29-23 after the date of the notification that surgery is recommended; or]
29-24 [(3) the commission determines that extenuating
29-25 circumstances exist and orders payment for surgery].
29-26 [(b) The commission shall adopt rules necessary to ensure
29-27 that an examination required under this section is performed
30-1 without undue delay.]
30-2 SECTION 4.02. Section 413.014, Labor Code, is amended to read
30-3 as follows:
30-4 Sec. 413.014. PREAUTHORIZATION REQUIREMENTS; CONCURRENT
30-5 REVIEW AND CERTIFICATION OF HEALTH CARE. (a) In this section,
30-6 "investigational or experimental service or device" means a health
30-7 care treatment, service, or device for which there is early,
30-8 developing scientific or clinical evidence demonstrating the
30-9 potential efficacy of the treatment, service, or device but that is
30-10 not yet broadly accepted as the prevailing standard of care.
30-11 (b) The commission by rule shall specify which health care
30-12 treatments and services require express preauthorization or
30-13 concurrent review by the insurance carrier. Treatments and services
30-14 for a medical emergency do not require express preauthorization.
30-15 (c) The commission rules adopted under this section must
30-16 provide that preauthorization and concurrent review are required at
30-17 a minimum for:
30-18 (1) spinal surgery, as provided by Section 408.026;
30-19 (2) work-hardening or work-conditioning services
30-20 provided by a health care facility that is not credentialed by an
30-21 organization recognized by commission rules;
30-22 (3) inpatient hospitalization, including any procedure
30-23 and length of stay;
30-24 (4) outpatient or ambulatory surgery; and
30-25 (5) any investigational or experimental services or
30-26 devices.
30-27 (d) [(b)] The insurance carrier is not liable for those
31-1 specified treatments and services requiring preauthorization unless
31-2 preauthorization is sought by the claimant or health care provider
31-3 and either obtained from the insurance carrier or ordered by the
31-4 commission.
31-5 (e) Each insurance carrier shall allow health care providers
31-6 to request that the insurance carrier prospectively or concurrently
31-7 certify coverage for health care services, including pharmaceutical
31-8 services, that do not require preauthorization and concurrent
31-9 review. Regardless of the insurance carrier's response to the
31-10 request, the carrier retains the right to retrospectively review
31-11 health care services and supporting records and to contest the
31-12 certification of those services.
31-13 SECTION 4.03. Subchapter B, Chapter 413, Labor Code, is
31-14 amended by adding Section 413.0141 to read as follows:
31-15 Sec. 413.0141. INITIAL PHARMACEUTICAL COVERAGE. The
31-16 commission may by rule provide that an insurance carrier shall
31-17 provide for payment of specified pharmaceutical services sufficient
31-18 for the first seven days following the date of injury if the health
31-19 care provider requests and receives verification of insurance
31-20 coverage and a verbal confirmation of an injury from the employer
31-21 or from the insurance carrier as provided by Section 413.014. The
31-22 rules adopted by the commission may also provide that an insurance
31-23 carrier is eligible for reimbursement for pharmaceutical services
31-24 paid under this section from the subsequent injury fund in the
31-25 event the injury is determined not to be compensable.
31-26 SECTION 4.04. The Texas Workers' Compensation Commission
31-27 shall adopt the rules required under Sections 408.026 and 413.014,
32-1 Labor Code, as amended or added by this article, not later than
32-2 February 1, 2002, and may adopt rules required by Section 413.0141,
32-3 Labor Code.
32-4 ARTICLE 5. REQUIRED MEDICAL EXAMINATIONS; DESIGNATED DOCTORS
32-5 SECTION 5.01. Sections 408.004(a) and (c), Labor Code, are
32-6 amended to read as follows:
32-7 (a) The commission may require an employee to submit to
32-8 medical examinations to resolve any question about[:]
32-9 [(1)] the appropriateness of the health care received
32-10 by the employee[;]
32-11 [(2) the impairment caused by the compensable injury;]
32-12 [(3) the attainment of maximum medical improvement; or]
32-13 [(4) similar issues].
32-14 (c) The insurance carrier shall pay for:
32-15 (1) an examination required under Subsection (a) or
32-16 (b); and
32-17 (2) the reasonable mileage expenses [expense] incident
32-18 to the employee in submitting to the examination.
32-19 SECTION 5.02. Subchapter A, Chapter 408, Labor Code, is
32-20 amended by adding Section 408.0041 to read as follows:
32-21 Sec. 408.0041. DESIGNATED DOCTOR EXAMINATION. (a) At the
32-22 request of an insurance carrier or an employee, the commission
32-23 shall order a medical examination to resolve any question about:
32-24 (1) the impairment caused by the compensable injury;
32-25 (2) the attainment of maximum medical improvement;
32-26 (3) the ability of the employee to return to work;
32-27 (4) the extent of the injury; or
33-1 (5) similar issues.
33-2 (b) A medical examination requested under Subsection (a)
33-3 shall be performed by the next available doctor on the commission's
33-4 list of designated doctors whose credentials are appropriate for
33-5 the issue in question and the injured employee's medical condition.
33-6 The designated doctor doing the review must be knowledgeable and
33-7 experienced with the treatment and procedures used by the doctor
33-8 treating the patient's medical condition and the treatments and
33-9 procedures performed must be within the scope of practice of the
33-10 designated doctor. The commission shall assign a designated doctor
33-11 not later than the 10th day after the date on which the request
33-12 under Subsection (a) is received, and the examination must be
33-13 conducted not later than the 21st day after the date on which the
33-14 commission issues the order under Subsection (a). An examination
33-15 under this section may not be held more frequently than every 60
33-16 days, unless good cause for more frequent examinations exists, as
33-17 defined by commission rules.
33-18 (c) The treating doctor and the insurance carrier are both
33-19 responsible for sending to the designated doctor all of the injured
33-20 employee's medical records relating to the issue to be evaluated by
33-21 the designated doctor that are in their possession. The treating
33-22 doctor and insurance carrier may send the records without a signed
33-23 release from the employee. The designated doctor is authorized to
33-24 receive the employee's confidential medical records to assist in
33-25 the resolution of disputes. The treating doctor and insurance
33-26 carrier may also send the designated doctor an analysis of the
33-27 injured worker's medical condition, functional abilities, and
34-1 return-to-work opportunities.
34-2 (d) To avoid undue influence on a person selected as a
34-3 designated doctor under this section, only the injured employee or
34-4 an appropriate member of the staff of the commission may
34-5 communicate with the designated doctor about the case regarding the
34-6 injured employee's medical condition or history before the
34-7 examination of the injured employee by the designated doctor.
34-8 After that examination is completed, communication with the
34-9 designated doctor regarding the injured employee's medical
34-10 condition or history may be made only through appropriate
34-11 commission staff members. The designated doctor may initiate
34-12 communication with any doctor who has previously treated or
34-13 examined the injured employee for the work-related injury or with
34-14 peer reviewers identified by the insurance carrier.
34-15 (e) The designated doctor shall report to the commission.
34-16 The report of the designated doctor has presumptive weight unless
34-17 the great weight of the evidence is to the contrary. An employer
34-18 may make a bona fide offer of employment subject to Sections
34-19 408.103(e) and 408.144(c) based on the designated doctor's report.
34-20 (f) If an insurance carrier is not satisfied with the
34-21 opinion rendered by a designated doctor under this section, the
34-22 insurance carrier may request the commission to order an employee
34-23 to attend an examination by a doctor selected by the insurance
34-24 carrier. The commission shall allow the insurance carrier
34-25 reasonable time to obtain and present the opinion of the doctor
34-26 selected under this subsection before the commission makes a final
34-27 decision on the merits of the issue in question.
35-1 (g) The insurance carrier shall pay for:
35-2 (1) an examination required under Subsection (a); and
35-3 (2) the reasonable expenses incident to the employee
35-4 in submitting to the examination.
35-5 (h) An employee is not entitled to temporary income
35-6 benefits, and an insurance carrier may suspend the payment of
35-7 temporary income benefits, during and for a period in which the
35-8 employee fails to submit to an examination under Subsection (a) or
35-9 (b) unless the commission determines that the employee had good
35-10 cause for the failure to submit to the examination. The commission
35-11 may order temporary income benefits to be paid for the period that
35-12 the commission determines the employee had good cause. The
35-13 commission by rule shall ensure that an employee receives
35-14 reasonable notice of an examination and of the insurance carrier's
35-15 basis for suspension of payment and that the employee is provided a
35-16 reasonable opportunity to reschedule an examination missed by the
35-17 employee for good cause.
35-18 (i) If the report of a designated doctor indicates that an
35-19 employee can return to work immediately or has reached maximum
35-20 medical improvement, the insurance carrier may suspend or reduce
35-21 the payment of temporary income benefits immediately.
35-22 (j) If the report of a doctor selected by the insurance
35-23 carrier indicates that an employee can return to work immediately
35-24 or has reached maximum medical improvement, the insurance carrier
35-25 may suspend or reduce the payment of temporary income benefits on
35-26 the 14th day after the date on which the insurance carrier files a
35-27 notice of suspension with the commission.
36-1 (k) At the request of the employee or the insurance carrier
36-2 to dispute a decision under Subsection (i) or (j), the commission
36-3 shall hold an expedited benefit review conference, by personal
36-4 appearance or by telephone, not later than the 10th day after the
36-5 date on which the commission receives the request for the
36-6 conference. If a benefit review conference is not held by the 14th
36-7 day after the date on which the commission receives the insurance
36-8 carrier's notice of suspension, an interlocutory order, effective
36-9 from the date of the report certifying maximum medical improvement,
36-10 is automatically entered for the continuation of temporary income
36-11 benefits until a benefit review conference is held, and the
36-12 insurance carrier is eligible for reimbursement for any overpayment
36-13 of benefits as provided by Chapter 410. The commission is not
36-14 required to schedule a contested case hearing as required by
36-15 Section 410.025(b) if a benefit review conference is scheduled
36-16 under this subsection. If a benefit review conference is held not
36-17 later than the 14th day, the commission may enter an interlocutory
36-18 order for the continuation of benefits and the insurance carrier is
36-19 eligible for reimbursement for any overpayments of benefits as
36-20 provided by Chapter 410. The commission shall adopt rules as
36-21 necessary to implement this subsection under which:
36-22 (1) an insurance carrier is required to notify the
36-23 employee and the treating doctor of the suspension of benefits
36-24 under this subsection by certified mail or another verifiable
36-25 delivery method;
36-26 (2) the commission makes a reasonable attempt to
36-27 obtain the treating doctor's opinion before the commission makes a
37-1 determination regarding the entry of an interlocutory order; and
37-2 (3) the commission may allow abbreviated contested
37-3 case hearings by personal appearance or telephone to consider
37-4 issues relating to overpayment of benefits under this section.
37-5 SECTION 5.03. Sections 408.122(b) and (c), Labor Code, are
37-6 amended to read as follows:
37-7 (b) To be eligible to serve as a designated doctor, a doctor
37-8 must meet specific qualifications, including training in the
37-9 determination of impairment ratings. The executive director shall
37-10 develop qualification standards and administrative policies to
37-11 implement this subsection, and the commission may adopt rules as
37-12 necessary. The designated doctor doing the review must be
37-13 knowledgeable and experienced with the treatment and procedures
37-14 used by the doctor treating the patient's medical condition and the
37-15 treatments and procedures performed must be within the scope of
37-16 practice of the designated doctor. A designated doctor's
37-17 credentials must be appropriate for the issue in question and the
37-18 injured employee's medical condition. [To the extent possible, a
37-19 designated doctor must be in the same discipline and licensed by
37-20 the same board of examiners as the employee's doctor of choice.]
37-21 (c) [If a dispute exists as to whether the employee has
37-22 reached maximum medical improvement, the commission shall direct
37-23 the employee to be examined by a designated doctor chosen by mutual
37-24 agreement of the parties. If the parties are unable to agree on a
37-25 designated doctor, the commission shall direct the employee to be
37-26 examined by a designated doctor chosen by the commission. The
37-27 designated doctor shall report to the commission.] The report of
38-1 the designated doctor has presumptive weight, and the commission
38-2 shall base its determination of whether the employee has reached
38-3 maximum medical improvement on the report unless the great weight
38-4 of the other medical evidence is to the contrary.
38-5 SECTION 5.04. The Research and Oversight Council on Workers'
38-6 Compensation shall report to the legislature not later than
38-7 December 31, 2002, regarding issues related to medical examinations
38-8 conducted under Section 408.0041, Labor Code, as added by this
38-9 article.
38-10 SECTION 5.05. Section 408.004, Labor Code, as amended by this
38-11 article, applies only to a request for a medical examination made
38-12 to the Texas Workers' Compensation Commission by an insurance
38-13 carrier on or after January 1, 2002.
38-14 ARTICLE 6. MEDICAL BENEFIT REGULATION; DISPUTE RESOLUTION
38-15 SECTION 6.01. Section 408.028, Labor Code, is amended to read
38-16 as follows:
38-17 Sec. 408.028. PHARMACEUTICAL SERVICES. (a) A physician
38-18 [health care practitioner] providing care to an employee under this
38-19 subchapter shall prescribe for the employee any necessary
38-20 prescription drugs, and over-the-counter alternatives to
38-21 prescription medications as clinically appropriate and applicable,
38-22 in accordance with applicable state law and as provided by
38-23 Subsection (b). A doctor providing care may order over-the-counter
38-24 alternatives to prescription medications, when clinically
38-25 appropriate, in accordance with applicable state law and as
38-26 provided by Subsection (b).
38-27 (b) The commission by rule shall develop an open formulary
39-1 under Section 413.011 that requires the use of generic
39-2 pharmaceutical medications and clinically appropriate
39-3 over-the-counter alternatives to prescription medications unless
39-4 otherwise specified by the prescribing doctor, in accordance with
39-5 applicable state law.
39-6 (c) Except as otherwise provided by this subtitle, an [An]
39-7 insurance carrier may not require an employee to use pharmaceutical
39-8 services designated by the carrier.
39-9 (d) The commission shall adopt rules to allow an employee to
39-10 purchase over-the-counter alternatives to prescription medications
39-11 prescribed or ordered under Subsection (a) or (b) and to obtain
39-12 reimbursement from the insurance carrier for those medications.
39-13 SECTION 6.02. Section 413.011, Labor Code, is amended to
39-14 read as follows:
39-15 Sec. 413.011. FEE GUIDELINES; TREATMENT GUIDELINES [AND
39-16 MEDICAL POLICIES]. (a) The commission by rule shall adopt by
39-17 reference the reimbursement methodology and model used by the
39-18 Medicare system with minimal modifications to that reimbursement
39-19 methodology as necessary to meet occupational injury requirements
39-20 and to allow chiropractors to serve as treating doctors. This
39-21 section may not be interpreted in a manner inconsistent with state
39-22 laws relating to insurance equity regarding parity of payment or
39-23 fee reimbursement levels based on provider type, license,
39-24 discipline, or specialty. The commission shall calculate
39-25 conversion factors to set fees for services based on that
39-26 methodology and shall provide for reasonable fees for the
39-27 evaluation and management of care by treating doctors as required
40-1 by Section 408.025(c) and commission rules. The commission shall
40-2 adopt other Medicare requirements and related rules, including
40-3 coding compliance standards, to meet the standards for reporting
40-4 documentation and billing required by Section 413.053, and
40-5 guidelines relating to [establish medical policies and guidelines
40-6 relating to:]
40-7 [(1) fees charged or paid for medical services for
40-8 employees who suffer compensable injuries, including guidelines
40-9 relating to payment of fees for specific medical treatments or
40-10 services;]
40-11 [(2) use of medical services by employees who suffer
40-12 compensable injuries; and]
40-13 [(3)] fees charged or paid for providing expert
40-14 testimony relating to an issue arising under this subtitle.
40-15 (b) Guidelines for medical services fees must be fair and
40-16 reasonable and designed to ensure the quality of medical care and
40-17 to achieve effective medical cost control. The guidelines may not
40-18 provide for payment of a fee in excess of the fee charged for
40-19 similar treatment of an injured individual of an equivalent
40-20 standard of living and paid by that individual or by someone acting
40-21 on that individual's behalf. The commission shall consider the
40-22 increased security of payment afforded by this subtitle in
40-23 establishing the fee guidelines.
40-24 (c) The commission by rule may adopt treatment guidelines.
40-25 If adopted, treatment guidelines adopted must be nationally
40-26 recognized, scientifically valid, and outcome-based and designed to
40-27 reduce excessive or inappropriate medical care while safeguarding
41-1 necessary medical care [Medical policies adopted by the commission
41-2 must be consistent with Sections 413.013, 413.020, 413.052, and
41-3 413.053].
41-4 (d) The commission by rule may [shall] establish medical
41-5 policies relating to necessary treatments for injuries.
41-6 (e) Any medical [Medical] policies or guidelines adopted by
41-7 the commission must [shall] be:
41-8 (1) designed to ensure the quality of medical care and
41-9 to achieve effective medical cost control;
41-10 (2) designed to enhance a timely and appropriate
41-11 return to work; and
41-12 (3) consistent with Sections 413.013, 413.020,
41-13 413.052, and 413.053.
41-14 SECTION 6.03. Section 413.031, Labor Code, is amended to read
41-15 as follows:
41-16 Sec. 413.031. MEDICAL DISPUTE RESOLUTION. (a) A party,
41-17 including a health care provider or claimant, is entitled to a
41-18 review of a medical service provided or for which authorization of
41-19 payment is sought if that party [a health care provider] is:
41-20 (1) denied payment or paid a reduced amount for the
41-21 medical service rendered;
41-22 (2) denied authorization for the payment for the
41-23 service requested or performed if authorization is required or
41-24 allowed by this subtitle or [the medical policies of the]
41-25 commission rules; [or]
41-26 (3) ordered by the commission [division] to refund a
41-27 payment received; or
42-1 (4) ordered to make a payment that was refused or
42-2 reduced for a medical service rendered.
42-3 (b) A health care provider who submits a charge in excess of
42-4 the fee guidelines or treatment policies is entitled to a review of
42-5 the medical service to determine if reasonable medical
42-6 justification exists for the deviation.
42-7 (c) In resolving disputes over the amount of payment due for
42-8 services determined to be medically necessary and appropriate for
42-9 treatment of a compensable injury, the role of the commission is to
42-10 adjudicate the correct payment given the relevant statutory
42-11 provisions and commission rules. The commission shall publish on
42-12 its Internet website its medical dispute decisions, including
42-13 decisions of independent review organizations, and any subsequent
42-14 decisions by the State Office of Administrative Hearings. Before
42-15 publication, the commission shall redact only that information
42-16 necessary to prevent identification of the injured worker.
42-17 (d) A review of the medical necessity of a health care
42-18 [medical] service requiring preauthorization under Section 413.014
42-19 or commission rules under that [this] section shall be conducted by
42-20 an independent review organization under Article 21.58C, Insurance
42-21 Code, in the same manner as reviews of utilization review decisions
42-22 by health maintenance organizations. It is a defense for the
42-23 insurance carrier if the carrier timely complies with the decision
42-24 of the independent review organization. The commission by rule
42-25 shall specify the appropriate dispute resolution process for
42-26 disputes in which a claimant has paid for medical services and is
42-27 seeking reimbursement [provided by a health care provider
43-1 professional review organization if requested by the health care
43-2 practitioner or if ordered by the commission].
43-3 (e) Except as provided by Subsection (d), a review of the
43-4 medical necessity of a health care service provided under this
43-5 chapter or Chapter 408 shall be conducted by an independent review
43-6 organization under Article 21.58C, Insurance Code, in the same
43-7 manner as reviews of utilization review decisions by health
43-8 maintenance organizations. It is a defense for the insurance
43-9 carrier if the carrier timely complies with the decision of the
43-10 independent review organization.
43-11 (f) The insurance carrier shall pay the cost of the review
43-12 if the dispute arises in connection with a request for health care
43-13 services that require preauthorization under Section 413.014 or
43-14 commission rules under that section.
43-15 (g) Except as provided by Subsection (f), the cost of the
43-16 review shall be paid by the nonprevailing party.
43-17 (h) Notwithstanding Subsections (f) and (g), an employee may
43-18 not be required to pay any portion of the cost of a review.
43-19 (i) [(d)] A party to a medical dispute that remains
43-20 unresolved after a review of the medical service under this section
43-21 is entitled to a hearing. The hearing shall be conducted by the
43-22 State Office of Administrative Hearings within 90 days of receipt
43-23 of a request for a hearing in the manner provided for a contested
43-24 case under Chapter 2001, Government Code (the administrative
43-25 procedure law).
43-26 SECTION 6.04. Section 413.041, Labor Code, is amended to read
43-27 as follows:
44-1 Sec. 413.041. DISCLOSURE. (a) Each doctor shall disclose to
44-2 the commission the identity of any health care provider in which
44-3 the doctor, or the health care provider that employs the doctor,
44-4 has a financial interest. The doctor shall make the disclosure in
44-5 the manner provided by commission rule.
44-6 (b) The commission shall require by rule that a doctor
44-7 disclose financial interests in other health care providers as a
44-8 condition of registration for the approved doctor list established
44-9 under Section 408.023, and shall define "financial interest" for
44-10 purposes of this subsection as provided by analogous federal
44-11 regulations. The commission by rule shall adopt the federal
44-12 standards that prohibit the payment or acceptance of payment in
44-13 exchange for health care referrals.
44-14 (c) A doctor or health care provider that fails to comply
44-15 with this section is subject to penalties and sanctions as provided
44-16 by this subtitle, including forfeiture of the right to
44-17 reimbursement for services rendered during the period of
44-18 noncompliance.
44-19 (d) The commission shall publish all final disclosure
44-20 enforcement orders issued under this section on the commission's
44-21 Internet website [A health care provider who refers a workers'
44-22 compensation claimant to another health care provider in which the
44-23 referring provider has more than a five percent financial interest
44-24 shall file an annual disclosure statement with the commission as
44-25 provided by commission rules and shall disclose the interest to the
44-26 insurance carrier at the time of the referral. The referring
44-27 provider shall specify the degree of the financial interest and
45-1 shall provide other information as required by commission rules].
45-2 SECTION 6.05. Section 415.0035, Labor Code, is amended by
45-3 adding Subsections (e) and (f) to read as follows:
45-4 (e) An insurance carrier or health care provider commits an
45-5 administrative violation if that person violates this subtitle or a
45-6 rule, order, or decision of the commission.
45-7 (f) A subsequent administrative violation under this
45-8 section, after prior notice to the insurance carrier or health care
45-9 provider of noncompliance, is subject to penalties as provided by
45-10 Section 415.021. Prior notice under this subsection is not required
45-11 if the violation was committed wilfully or intentionally, or if the
45-12 violation was of a decision or order of the commission.
45-13 SECTION 6.06. Section 415.021(a), Labor Code, is amended to
45-14 read as follows:
45-15 (a) The commission may assess an administrative penalty
45-16 against a person who commits an administrative violation.
45-17 Notwithstanding Subsection (c), the commission by rule shall adopt
45-18 a schedule of specific monetary administrative penalties for
45-19 specific violations under this subtitle.
45-20 SECTION 6.07. Section 415.023, Labor Code, is amended to read
45-21 as follows:
45-22 Sec. 415.023. COMMISSION OF WRONGFUL ACT AS MATTER OF
45-23 PRACTICE; ADMINISTRATIVE VIOLATION. (a) A person who commits an
45-24 administrative violation under Section 415.001, 415.002, [or]
45-25 415.003, or 415.0035 as a matter of practice is subject to an
45-26 applicable rule adopted under Subsection (b) in addition to the
45-27 penalty assessed for the violation.
46-1 (b) The commission may adopt rules providing for:
46-2 (1) a reduction or denial of fees;
46-3 (2) public or private reprimand by the commission;
46-4 (3) suspension from practice before the commission;
46-5 [or]
46-6 (4) restriction, suspension, or revocation of the
46-7 right to receive reimbursement under this subtitle; or
46-8 (5) referral and petition to the appropriate licensing
46-9 authority for appropriate disciplinary action, including the
46-10 restriction, suspension, or revocation of the person's license.
46-11 SECTION 6.08. (a) The Texas Workers' Compensation Commission
46-12 shall adopt the rules and fee guidelines under Section 413.011,
46-13 Labor Code, as amended by this article, not later than May 1, 2002.
46-14 Unless subsequently readopted by the commission, the treatment
46-15 guidelines adopted under Chapter 413, Labor Code, in effect
46-16 immediately before September 1, 2001, are not applicable to health
46-17 care services provided on or after January 1, 2002.
46-18 (b) The Texas Workers' Compensation Commission shall adopt
46-19 rules as required by Sections 408.028 and 413.041, Labor Code, as
46-20 amended by this article, not later than June 1, 2002.
46-21 (c) The change in law made by this article by the amendment
46-22 of Section 413.031, Labor Code, applies only to a request for a
46-23 review of medical services received on or after January 1, 2002. A
46-24 request received before that date is covered by the law in effect
46-25 immediately before September 1, 2001, and that law is continued in
46-26 effect for that purpose.
46-27 (d) Section 413.041(c), Labor Code, as added by this
47-1 article, applies only to a failure to comply with Section 413.041
47-2 that occurs after June 1, 2002.
47-3 (e) Section 415.0035, Labor Code, as amended by this
47-4 article, applies only to a violation occurring on or after
47-5 September 1, 2002.
47-6 ARTICLE 7. SUNSET REVIEW; AUDIT
47-7 SECTION 7.01. Section 401.002, Labor Code, is amended to
47-8 read as follows:
47-9 Sec. 401.002. APPLICATION OF SUNSET ACT. The Texas Workers'
47-10 Compensation Commission is subject to Chapter 325, Government Code
47-11 (Texas Sunset Act). Unless continued in existence as provided by
47-12 that chapter, the commission is abolished September 1, 2005 [2007].
47-13 SECTION 7.02. Subchapter A, Chapter 401, Labor Code, is
47-14 amended by adding Section 401.003 to read as follows:
47-15 Sec. 401.003. ACTIVITIES OF THE STATE AUDITOR. (a) The
47-16 commission is subject to audit by the state auditor in accordance
47-17 with Chapter 321, Government Code. The state auditor may audit the
47-18 commission's:
47-19 (1) structure and internal controls;
47-20 (2) level and quality of service provided to
47-21 employers, injured employees, insurance carriers, self-insured
47-22 governmental entities, and other participants;
47-23 (3) implementation of statutory mandates;
47-24 (4) employee turnover;
47-25 (5) information management systems, including public
47-26 access to nonconfidential information;
47-27 (6) adoption and implementation of administrative
48-1 rules; and
48-2 (7) assessment of administrative violations and the
48-3 penalties for those violations.
48-4 (b) Nothing in this section limits the authority of the
48-5 state auditor under Chapter 321, Government Code.
48-6 ARTICLE 8. ATTORNEY'S FEES
48-7 SECTION 8.01. Section 408.221, Labor Code, is amended to read
48-8 as follows:
48-9 Sec. 408.221. ATTORNEY'S FEES PAID TO CLAIMANT'S COUNSEL.
48-10 (a) An attorney's fee, including a contingency fee, for
48-11 representing a claimant before the commission or court under this
48-12 subtitle must be approved by the commission or court.
48-13 (b) Except as otherwise provided, an attorney's fee under
48-14 this section is based on the attorney's time and expenses according
48-15 to written evidence presented to the commission or court. Except as
48-16 provided by Subsection (c) or Section 408.147(c), the attorney's
48-17 fee shall be paid from the claimant's recovery.
48-18 (c) An insurance carrier that seeks judicial review under
48-19 Subchapter G, Chapter 410, of a final decision of a commission
48-20 appeals panel regarding compensability or eligibility for, or the
48-21 amount of, income or death benefits is liable for reasonable and
48-22 necessary attorney's fees incurred by the claimant as a result of
48-23 the insurance carrier's appeal if the claimant prevails on an issue
48-24 on which judicial review is sought by the insurance carrier in
48-25 accordance with the limitation of issues contained in Section
48-26 410.302. This subsection does not apply to attorney's fees for
48-27 which an insurance carrier may be liable under Section 408.147. An
49-1 award of attorney's fees under this subsection is not subject to
49-2 commission rules adopted under Subsection (f). This subsection
49-3 expires September 1, 2005.
49-4 (d) In approving an attorney's fee under this section, the
49-5 commission or court shall consider:
49-6 (1) the time and labor required;
49-7 (2) the novelty and difficulty of the questions
49-8 involved;
49-9 (3) the skill required to perform the legal services
49-10 properly;
49-11 (4) the fee customarily charged in the locality for
49-12 similar legal services;
49-13 (5) the amount involved in the controversy;
49-14 (6) the benefits to the claimant that the attorney is
49-15 responsible for securing; and
49-16 (7) the experience and ability of the attorney
49-17 performing the services.
49-18 (e) [(d)] The commission by rule or the court may provide
49-19 for the commutation of an attorney's fee, except that the
49-20 attorney's fee shall be paid in periodic payments in a claim
49-21 involving death benefits if the only dispute is as to the proper
49-22 beneficiary or beneficiaries.
49-23 (f) [(e)] The commission by rule shall provide guidelines
49-24 for maximum attorney's fees for specific services in accordance
49-25 with this section.
49-26 (g) [(f)] An attorney's fee may not be allowed in a case
49-27 involving a fatal injury or lifetime income benefit if the
50-1 insurance carrier admits liability on all issues and tenders
50-2 payment of maximum benefits in writing under this subtitle while
50-3 the claim is pending before the commission.
50-4 (h) [(g)] An attorney's fee shall be paid to the attorney by
50-5 separate draft.
50-6 (i) [(h)] Except as provided by Subsection (c) or Section
50-7 408.147(c), an attorney's fee may not exceed 25 percent of the
50-8 claimant's recovery.
50-9 SECTION 8.02. Section 408.147(c), Labor Code, is amended to
50-10 read as follows:
50-11 (c) If an insurance carrier disputes a commission
50-12 determination that an employee is entitled to supplemental income
50-13 benefits or the amount of supplemental income benefits due and the
50-14 employee prevails on any disputed issue, the insurance carrier is
50-15 liable for reasonable and necessary attorney's fees incurred by the
50-16 employee as a result of the insurance carrier's dispute and for
50-17 supplemental income benefits accrued but not paid and interest on
50-18 that amount, according to Section 408.064. Attorney's fees awarded
50-19 under this subsection are not subject to Sections 408.221(b), (f)
50-20 [(e)], and (i) [(h)].
50-21 SECTION 8.03. Section 408.222(b), Labor Code, is amended to
50-22 read as follows:
50-23 (b) In determining whether a fee is reasonable under this
50-24 section, the commission or court shall consider issues analogous to
50-25 those listed under Section 408.221(d) [408.221(c)]. The defense
50-26 counsel shall present written evidence to the commission or court
50-27 relating to:
51-1 (1) the time spent and expenses incurred in defending
51-2 the case; and
51-3 (2) other evidence considered necessary by the
51-4 commission or court in making a determination under this section.
51-5 ARTICLE 9. LIFETIME INCOME BENEFITS
51-6 SECTION 9.01. Section 408.161(a), Labor Code, is amended to
51-7 read as follows:
51-8 (a) Lifetime income benefits are paid until the death of the
51-9 employee for:
51-10 (1) total and permanent loss of sight in both eyes;
51-11 (2) loss of both feet at or above the ankle;
51-12 (3) loss of both hands at or above the wrist;
51-13 (4) loss of one foot at or above the ankle and the
51-14 loss of one hand at or above the wrist;
51-15 (5) an injury to the spine that results in permanent
51-16 and complete paralysis of both arms, both legs, or one arm and one
51-17 leg; [or]
51-18 (6) a physically traumatic injury to the brain
51-19 resulting in incurable insanity or imbecility; or
51-20 (7) burns that result in at least 40 percent of the
51-21 body being subject to debriding or grafting, or third degree burns
51-22 covering the majority of either both hands or one hand and the
51-23 head.
51-24 ARTICLE 10. MULTIPLE EMPLOYMENT; SUBSEQUENT INJURY FUND
51-25 SECTION 10.01. Section 403.006, Labor Code, is amended by
51-26 amending Subsection (b) and adding Subsection (d) to read as
51-27 follows:
52-1 (b) The subsequent injury fund is liable for:
52-2 (1) the payment of compensation as provided by Section
52-3 408.162;
52-4 (2) reimbursement of insurance carrier claims of
52-5 overpayment of benefits based on interlocutory orders of the
52-6 commission as provided by this subtitle, consistent with the
52-7 priorities established by rule by the commission;
52-8 (3) reimbursement of insurance carrier claims as
52-9 provided by Sections 408.042 and 413.0141, consistent with the
52-10 priorities established by rule by the commission; and
52-11 (4) the payment of an assessment of feasibility and
52-12 the development of regional networks established under Section
52-13 408.0221.
52-14 (d) Based on an actuarial assessment of the funding
52-15 available under Section 403.007(e), the commission may make partial
52-16 payment of insurance carrier claims under Subsection (b)(3).
52-17 SECTION 10.02. Section 403.007, Labor Code, is amended by
52-18 adding Subsections (e) and (f) to read as follows:
52-19 (e) If the commission determines that the funding under
52-20 Subsection (a) is not adequate to meet the expected obligations of
52-21 the subsequent injury fund established under Section 403.006, the
52-22 fund shall be supplemented by the collection of a maintenance tax
52-23 paid by insurance carriers, other than a governmental entity, as
52-24 provided by Sections 403.002 and 403.003. The rate of assessment
52-25 must be adequate to provide 120 percent of the projected unfunded
52-26 liabilities of the fund for the next biennium as certified by an
52-27 independent actuary or financial advisor.
53-1 (f) The commission's actuary or financial advisor shall
53-2 report biannually to the Research and Oversight Council on Workers'
53-3 Compensation on the financial condition and projected assets and
53-4 liabilities of the subsequent injury fund. The commission shall
53-5 make the reports available to members of the legislature and the
53-6 public. The commission may purchase annuities to provide for
53-7 payments due to claimants under this subtitle if the commission
53-8 determines that the purchase of annuities is financially prudent
53-9 for the administration of the fund.
53-10 SECTION 10.03. Section 408.042, Labor Code, is amended to
53-11 read as follows:
53-12 Sec. 408.042. AVERAGE WEEKLY WAGE FOR PART-TIME EMPLOYEE OR
53-13 EMPLOYEE WITH MULTIPLE EMPLOYMENT. (a) The average weekly wage of
53-14 a part-time employee who limits the employee's work to less than
53-15 [full-time hours or] a full-time workweek as a regular course of
53-16 that employee's conduct is computed as provided by Section 408.041.
53-17 (b) For part-time employees not covered by Subsection (a),
53-18 the average weekly wage:
53-19 (1) for determining temporary income benefits is
53-20 computed as provided by Section 408.041; and
53-21 (2) for determining impairment income benefits,
53-22 supplemental income benefits, lifetime income benefits, and death
53-23 benefits is computed as follows:
53-24 (A) if the employee has worked for the employer
53-25 for at least the 13 weeks immediately preceding the date of the
53-26 injury, the average weekly wage is computed by dividing the sum of
53-27 the wages paid in the 13 consecutive weeks immediately preceding
54-1 the date of the injury by 13 and adjusting that amount to the
54-2 weekly wage level the employee would have attained by working a
54-3 full-time workweek at the same rate of pay; or
54-4 (B) if the employee has worked for the employer
54-5 for less than 13 weeks immediately preceding the date of the
54-6 injury, the average weekly wage is equal to:
54-7 (i) the weekly wage that the employer pays
54-8 a similar employee for similar services based on a [in] full-time
54-9 workweek [employment]; or
54-10 (ii) if a similar employee does not exist,
54-11 the usual wage paid in that vicinity for the same or similar
54-12 services based on a [provided for compensation in] full-time
54-13 workweek [employment].
54-14 (c) For employees with multiple employment, the average
54-15 weekly wage for determining temporary income benefits, impairment
54-16 income benefits, supplemental income benefits, lifetime income
54-17 benefits, and death benefits, is computed as follows:
54-18 (1) the average weekly wage for an employee with
54-19 multiple employment is equal to the sum of the average weekly wages
54-20 computed under Subdivisions (2) and (3);
54-21 (2) for each of the employers for whom the employee
54-22 has worked for at least the 13 weeks immediately preceding the date
54-23 of injury, the average weekly wage is equal to the sum of the wages
54-24 paid by that employer to the employee in the 13 weeks immediately
54-25 preceding the injury divided by 13;
54-26 (3) for each of the employers for whom the employee
54-27 has worked for less than the 13 weeks immediately preceding the
55-1 date of the injury, the average weekly wage is equal to:
55-2 (A) the weekly wage that employer pays similar
55-3 employees for similar services; or
55-4 (B) if a similar employee does not exist, the
55-5 usual weekly wage paid in that vicinity for the same or similar
55-6 services; and
55-7 (4) the average weekly wage of an employee with
55-8 multiple employment who limits the employee's work to less than a
55-9 full-time workweek, but does not do so as a regular course of that
55-10 employee's conduct, is adjusted to the weekly wage level the
55-11 employee would have attained by working a full-time workweek at the
55-12 employee's average rate of pay.
55-13 (d) The commission shall:
55-14 (1) prescribe a form to collect information regarding
55-15 the wages of employees with multiple employment; and
55-16 (2) by rule, determine the manner by which wage
55-17 information is collected and distributed to implement this section.
55-18 (e) For an employee with multiple employment, only the
55-19 employee's wages that are reportable for federal income tax
55-20 purposes may be considered. The employee shall document and verify
55-21 wage payments subject to this section.
55-22 (f) If the commission determines that computing the average
55-23 weekly wage for an employee as provided by Subsection (c) is
55-24 impractical or unreasonable, the commission shall set the average
55-25 weekly wage in a manner that more fairly reflects the employee's
55-26 average weekly wage and that is fair and just to both parties or is
55-27 in the manner agreed to by the parties. The commission by rule may
56-1 define methods to determine a fair and just average weekly wage
56-2 consistent with this section.
56-3 (g) An insurance carrier is entitled to apply for and
56-4 receive reimbursement at least annually from the subsequent injury
56-5 fund for the amount of income benefits paid to a worker under this
56-6 section that are based on employment other than the employment
56-7 during which the compensable injury occurred. The commission may
56-8 adopt rules that govern the documentation, application process, and
56-9 other administrative requirements necessary to implement this
56-10 subsection.
56-11 (h) In this section:
56-12 (1) "Employee with multiple employment" means an
56-13 employee who has more than one employer.
56-14 (2) "Full-time workweek" means a 40-hour workweek.
56-15 (3) "Part-time[, "part-time] employee" means an
56-16 employee who, at the time of the injury, was working less than a
56-17 [the] full-time [hours or full-time] workweek for the employer for
56-18 whom the employee was working when the compensable injury occurred
56-19 [of similar employees in the same employment, whether for the same
56-20 or a different employer].
56-21 ARTICLE 11. INSURANCE CARRIER INFORMATION
56-22 SECTION 11.01. Section 410.164, Labor Code, is amended by
56-23 adding Subsection (c) to read as follows:
56-24 (c) At each contested case hearing, as applicable, the
56-25 insurance carrier shall file with the hearing officer and shall
56-26 deliver to the claimant a single document stating the true
56-27 corporate name of the insurance carrier and the name and address of
57-1 the insurance carrier's registered agent for service of process.
57-2 The document is part of the record of the contested case hearing.
57-3 SECTION 11.02. Section 410.204, Labor Code, is amended by
57-4 adding Subsection (d) to read as follows:
57-5 (d) Each final decision of the appeals panel shall conclude
57-6 with a separate paragraph stating: "The true corporate name of the
57-7 insurance carrier is (NAME IN BOLD PRINT) and the name and address
57-8 of its registered agent for service of process is (NAME AND ADDRESS
57-9 IN BOLD PRINT)."
57-10 SECTION 11.03. This article applies only to a workers'
57-11 compensation hearing that is conducted on or after the effective
57-12 date of this Act. A hearing that is conducted before that date is
57-13 governed by the law in effect on the date the hearing was
57-14 conducted, and the former law is continued in effect for that
57-15 purpose.
57-16 ARTICLE 12. APPEAL REQUIREMENTS
57-17 SECTION 12.01. Section 410.202, Labor Code, is amended by
57-18 adding Subsection (d) to read as follows:
57-19 (d) Saturdays and Sundays and holidays listed in Section
57-20 662.003, Government Code, are not included in the computation of
57-21 the time in which a request for an appeal under Subsection (a) or a
57-22 response under Subsection (b) must be filed.
57-23 SECTION 12.02. The change in law made by this article applies
57-24 only to an appeal in a workers' compensation proceeding filed on or
57-25 after the effective date of this Act. An appeal filed before the
57-26 effective date of this Act is governed by the law in effect on the
57-27 date the appeal was filed, and the former law is continued in
58-1 effect for that purpose.
58-2 ARTICLE 13. STUDY ON DRUG-FREE WORKPLACE REQUIREMENTS
58-3 SECTION 13.01. Subchapter G, Chapter 411, Labor Code, is
58-4 amended by adding Section 411.093 to read as follows:
58-5 Sec. 411.093. STUDY ON DRUG-FREE WORKPLACE; REPORT. (a) The
58-6 commission shall study:
58-7 (1) the implementation and development of drug-free
58-8 workplace policies under this subchapter;
58-9 (2) the use of drug-free workplace requirements
58-10 adopted by other jurisdictions to reduce the adverse impact on the
58-11 operation of workers' compensation insurance systems of drug abuse
58-12 and its effects in the workplace; and
58-13 (3) any other aspects of the effect of drug abuse on
58-14 the operation of the workers' compensation insurance system in this
58-15 state as considered appropriate by the commission or the Research
58-16 and Oversight Council on Workers' Compensation.
58-17 (b) The commission shall report not later than February 1,
58-18 2003, to the legislature and the Research and Oversight Council on
58-19 Workers' Compensation regarding the study conducted under this
58-20 section. The report must include:
58-21 (1) any commission recommendations for legislative
58-22 changes in the workers' compensation laws as regards the
58-23 implementation of a drug-free workplace requirement; and
58-24 (2) an analysis of the possible effects of the
58-25 adoption of a workers' compensation insurance premium discount
58-26 program for employers who maintain a drug-free workplace on the
58-27 operation of the workers' compensation insurance system in this
59-1 state.
59-2 (c) On the request of the commission, the Texas Department
59-3 of Insurance shall assist the commission in the performance of its
59-4 duties under this section.
59-5 (d) This section expires September 1, 2003.
59-6 ARTICLE 14. GENERAL TRANSITION; EFFECTIVE DATE
59-7 SECTION 14.01. Except as otherwise provided by this Act, this
59-8 Act applies only to a claim for workers' compensation benefits
59-9 based on a compensable injury that occurs on or after the effective
59-10 date of this Act. A claim based on a compensable injury that
59-11 occurs before that date is governed by the law in effect on the
59-12 date that the compensable injury occurred, and the former law is
59-13 continued in effect for that purpose.
59-14 SECTION 14.02. Except as expressly provided, this Act takes
59-15 effect September 1, 2001.