1-1 By: Brimer, et al. (Senate Sponsor - Duncan) H.B. No. 2600
1-2 (In the Senate - Received from the House April 26, 2001;
1-3 April 27, 2001, read first time and referred to Committee on
1-4 Business and Commerce; May 11, 2001, reported favorably by the
1-5 following vote: Yeas 4, Nays 1; May 11, 2001, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the provision of workers' compensation benefits and to
1-9 the operation of the workers' compensation insurance system;
1-10 providing penalties.
1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12 ARTICLE 1. APPROVED DOCTORS; MEDICAL REVIEW
1-13 SECTION 1.01. Subchapter B, Chapter 408, Labor Code, is
1-14 amended by amending Section 408.023 and adding Section 408.0231 to
1-15 read as follows:
1-16 Sec. 408.023. LIST OF APPROVED DOCTORS; DUTIES OF TREATING
1-17 DOCTORS. (a) The commission shall develop a list of doctors
1-18 licensed in this state who are approved to provide health care
1-19 services under this subtitle. Each doctor licensed in this state
1-20 on September 1, 2001, [January 1, 1993,] is eligible to be included
1-21 on the commission's list of approved doctors if the doctor:
1-22 (1) registers with the commission in the manner
1-23 prescribed by commission rules; and
1-24 (2) complies with the requirements adopted by the
1-25 commission under this section.
1-26 (b) The commission by rule shall establish reasonable
1-27 requirements for doctors and health care providers financially
1-28 related to those doctors regarding training, impairment rating
1-29 testing, and disclosure of financial interests as required by
1-30 Section 413.041, and for monitoring of those doctors and health
1-31 care providers as provided by Sections 408.0231 and 413.0512. The
1-32 commission by rule shall provide a reasonable period, not to exceed
1-33 18 months after the adoption of rules under this section, for
1-34 doctors to comply with the registration and training requirements
1-35 of this subchapter. Except as otherwise provided by this section,
1-36 the requirements under this subsection apply to doctors and health
1-37 care providers who:
1-38 (1) provide health care services as treating doctors;
1-39 (2) provide health care services as authorized by
1-40 Section 408.004 or 408.122;
1-41 (3) perform medical peer review under this subtitle;
1-42 (4) perform utilization review of medical benefits
1-43 provided under this subtitle; or
1-44 (5) provide health care services on referral from a
1-45 treating doctor, as provided by commission rule.
1-46 (c) The commission shall issue to a doctor who is approved
1-47 by the commission a certificate of registration. In determining
1-48 whether to issue a certificate of registration, the commission may
1-49 consider and condition its approval on any practice restrictions
1-50 applicable to the applicant that are relevant to services provided
1-51 under this subtitle. The commission may also consider the practice
1-52 restrictions of an applicant when determining appropriate sanctions
1-53 under Section 408.0231.
1-54 (d) A certificate of registration issued under this
1-55 subsection is valid, unless revoked or revised, for the period
1-56 provided by commission rule, and may be renewed on application to
1-57 the commission. The commission shall provide notice to each
1-58 doctor on the approved doctor list of the pending expiration of the
1-59 doctor's certificate of registration not later than the 60th day
1-60 before the date of expiration of the certificate [unless
1-61 subsequently deleted and not reinstated. The name of a doctor
1-62 shall be placed on the list of approved doctors when that doctor
1-63 becomes licensed in this state].
1-64 (e) Notwithstanding other provisions of this section, a [A]
2-1 doctor not licensed in this state but licensed in another state or
2-2 jurisdiction who treats employees or performs utilization review of
2-3 health care for an insurance carrier may apply for a certificate of
2-4 registration under this section [to the commission] to be included
2-5 on the commission's list of approved doctors.
2-6 (f) Except in an emergency or for immediate post-injury
2-7 medical care as defined by commission rule, or as provided by
2-8 Subsection (h) or (i), each doctor who performs functions under
2-9 this subtitle, including examinations under Sections 408.004 and
2-10 408.122, must hold a certificate of registration and be on the list
2-11 of approved doctors in order to perform services or receive payment
2-12 for those services.
2-13 (g) The commission by rule shall modify registration and
2-14 training requirements for doctors who infrequently provide health
2-15 care, perform utilization review or peer review functions for
2-16 insurance carriers, or participate in regional networks established
2-17 under this subchapter, as necessary to ensure that those doctors
2-18 are informed of the regulations that effect health care benefit
2-19 delivery under this subtitle.
2-20 (h) Notwithstanding Section 4(h), Article 21.58A, Insurance
2-21 Code, a utilization review agent that uses doctors to perform
2-22 reviews of health care services provided under this subtitle shall
2-23 perform the reviews under the direction of a doctor licensed to
2-24 practice in this state.
2-25 (i) The commission may grant exceptions to the requirement
2-26 imposed under Subsection (f) as necessary to ensure that:
2-27 (1) employees have access to health care; and
2-28 (2) insurance carriers have access to evaluations of
2-29 an employee's health care and income benefit eligibility as
2-30 provided by this subtitle.
2-31 (j) The injured employee's treating doctor is responsible
2-32 for the efficient management of medical care as required by Section
2-33 408.025(c) and commission rules. The commission shall collect
2-34 information regarding:
2-35 (1) return-to-work outcomes;
2-36 (2) patient satisfaction; and
2-37 (3) cost and utilization of health care provided or
2-38 authorized by a treating doctor on the list of approved doctors.
2-39 (k) The commission may adopt rules to define the role of the
2-40 treating doctor and to specify outcome information to be collected
2-41 for a treating doctor.
2-42 Sec. 408.0231. MAINTENANCE OF LIST OF APPROVED DOCTORS;
2-43 SANCTIONS AND PRIVILEGES RELATING TO HEALTH CARE. (a) The
2-44 executive director shall delete from the list of approved doctors a
2-45 doctor:
2-46 (1) who is deceased;
2-47 (2) whose license to practice in this state is revoked
2-48 or suspended by the appropriate licensing authority; or
2-49 (3) who requests to be removed from the list.
2-50 (b) The commission by rule shall establish criteria for:
2-51 (1) deleting a doctor from the list of approved
2-52 doctors;
2-53 (2) imposing sanctions on a doctor or an insurance
2-54 carrier as provided by this section;
2-55 (3) monitoring of utilization review agents, as
2-56 provided by a memorandum of understanding between the commission
2-57 and the Texas Department of Insurance; and
2-58 (4) authorizing increased or reduced utilization
2-59 review and preauthorization controls on a doctor.
2-60 (c) Rules adopted under Subsection (b) are in addition to,
2-61 and do not affect, the rules adopted under Section 415.023(b). The
2-62 criteria for deleting a doctor from the list or for recommending or
2-63 imposing sanctions may include anything the commission considers
2-64 relevant, including:
2-65 (1) a sanction [sanctions] of the doctor by the
2-66 commission for a violation [violations] of Chapter 413 or Chapter
2-67 415;
2-68 (2) a sanction [sanctions] by the Medicare or Medicaid
2-69 program for:
3-1 (A) substandard medical care;
3-2 (B) overcharging; [or]
3-3 (C) overutilization of medical services; or
3-4 (D) any other substantive noncompliance with
3-5 requirements of those programs regarding professional practice or
3-6 billing;
3-7 (3) evidence from the commission's medical records
3-8 that the applicable insurance carrier's utilization review
3-9 practices or the doctor's charges, fees, diagnoses, [or]
3-10 treatments, evaluations, or impairment ratings are substantially
3-11 different from those the commission finds to be fair and reasonable
3-12 based on either a single determination or a pattern of practice;
3-13 [and]
3-14 (4) a suspension or other relevant practice
3-15 restriction of the doctor's license by an [the] appropriate
3-16 licensing authority;
3-17 (5) professional failure to practice medicine or
3-18 provide health care, including chiropractic care, in an acceptable
3-19 manner consistent with the public health, safety, and welfare;
3-20 (6) findings of fact and conclusions of law made by a
3-21 court, an administrative law judge of the State Office of
3-22 Administrative Hearings, or a licensing or regulatory authority; or
3-23 (7) a criminal conviction.
3-24 (d) [(c)] The commission by rule shall establish procedures
3-25 under which [for] a doctor may [to] apply for:
3-26 (1) reinstatement to the list of approved doctors; or
3-27 (2) restoration of doctor practice privileges removed
3-28 by the commission based on sanctions imposed under this section.
3-29 (e) The commission shall act on a recommendation by the
3-30 medical advisor selected under Section 413.0511, and, after notice
3-31 and the opportunity for a hearing, may impose sanctions under this
3-32 subsection on a doctor or an insurance carrier or may recommend
3-33 action regarding a utilization review agent. The commission and
3-34 the Texas Department of Insurance shall enter into a memorandum of
3-35 understanding to coordinate the regulation of insurance carriers
3-36 and utilization review agents as necessary to ensure:
3-37 (1) compliance with applicable regulations; and
3-38 (2) that appropriate health care decisions are reached
3-39 under this subtitle and under Article 21.58A, Insurance Code.
3-40 (f) The sanctions the commission may recommend or impose
3-41 under this section include:
3-42 (1) reduction of allowable reimbursement;
3-43 (2) mandatory preauthorization of all or certain
3-44 health care services;
3-45 (3) required peer review monitoring and audit;
3-46 (4) deletion from the approved doctor list and the
3-47 designated doctor list;
3-48 (5) restrictions on appointment as a designated doctor
3-49 under Section 408.004;
3-50 (6) conditions or restrictions on an insurance carrier
3-51 regarding actions by insurance carriers under this subtitle in
3-52 accordance with the memorandum of understanding adopted between the
3-53 commission and the Texas Department of Insurance regarding Article
3-54 21.58A, Insurance Code; and
3-55 (7) mandatory participation in training classes or
3-56 other courses as established or certified by the commission.
3-57 SECTION 1.02. Subchapter E, Chapter 413, Labor Code, is
3-58 amended by amending Section 413.051 and adding Sections 413.0511,
3-59 413.0512, and 413.0513 to read as follows:
3-60 Sec. 413.051. CONTRACTS WITH REVIEW ORGANIZATIONS AND HEALTH
3-61 CARE PROVIDERS. (a) The commission may contract with a health care
3-62 provider, health care provider professional review organization, or
3-63 other entity to develop, maintain, or review medical policies or
3-64 fee guidelines or to review compliance with the medical policies or
3-65 fee guidelines.
3-66 (b) For purposes of review or resolution of a dispute as to
3-67 compliance with the medical policies or fee guidelines, the
3-68 commission may contract [only] with a health care provider, health
3-69 care provider professional review organization, or other entity
4-1 that includes in the review process health care practitioners who
4-2 are licensed in the category under review and are of the same field
4-3 or specialty as the category under review.
4-4 (c) The commission may contract with a health care provider,
4-5 health care provider professional review organization, or other
4-6 entity for medical consultant services, including:
4-7 (1) independent medical examinations;
4-8 (2) medical case reviews; or
4-9 (3) establishment of medical policies and fee
4-10 guidelines.
4-11 (d) The commission shall establish standards for contracts
4-12 under this section.
4-13 (e) For purposes of this section, the term "health care
4-14 provider professional review organization" includes an independent
4-15 review organization.
4-16 Sec. 413.0511. MEDICAL ADVISOR. (a) The commission shall
4-17 employ or contract with a medical advisor, who must be a doctor as
4-18 that term is defined by Section 401.011.
4-19 (b) The medical advisor shall make recommendations regarding
4-20 the adoption of rules to:
4-21 (1) develop, maintain, and review health care
4-22 guidelines and fee guidelines as provided by Section 413.011,
4-23 including rules regarding impairment ratings;
4-24 (2) review compliance with those guidelines;
4-25 (3) regulate other acts related to medical benefits as
4-26 required by the commission;
4-27 (4) impose sanctions or delete doctors from the
4-28 commission's list of approved doctors under Section 408.023 for:
4-29 (A) any reason described by Section 408.0231; or
4-30 (B) noncompliance with commission rules;
4-31 (5) impose conditions or restrictions as authorized by
4-32 Section 408.0231(f);
4-33 (6) receive confidential information from the Texas
4-34 State Board of Medical Examiners and the Texas Board of
4-35 Chiropractic Examiners regarding disciplinary actions imposed on a
4-36 physician or a chiropractor who applies for registration or is
4-37 registered with the commission on the list of approved doctors; and
4-38 (7) determine minimal modifications to the
4-39 reimbursement methodology and model used by the Medicare system as
4-40 necessary to meet occupational injury requirements.
4-41 Sec. 413.0512. MEDICAL QUALITY REVIEW PANEL. (a) The
4-42 medical advisor shall establish a medical quality review panel of
4-43 health care providers to assist the medical advisor in performing
4-44 the duties required under Section 413.0511. The panel is
4-45 independent of the medical advisory committee created under Section
4-46 413.005 and is not subject to Chapter 2110, Government Code.
4-47 (b) The Texas State Board of Medical Examiners and the Texas
4-48 Board of Chiropractic Examiners, with input from their respective
4-49 professional associations, shall develop lists of physicians and
4-50 chiropractors licensed by those agencies who have demonstrated
4-51 experience in workers' compensation or utilization review. The
4-52 medical advisor shall consider appointing some of the members of
4-53 the medical quality review panel from the names on those lists.
4-54 The medical advisor may also consider nominations for the panel
4-55 made by labor, business, and insurance organizations.
4-56 (c) The medical quality review panel shall recommend to the
4-57 medical advisor:
4-58 (1) appropriate action regarding doctors, health care
4-59 providers, insurance carriers, and utilization review agents; and
4-60 (2) the addition or deletion of doctors from the list
4-61 of approved doctors under Section 408.023 or the list of designated
4-62 doctors established under Section 408.122.
4-63 (d) A person who serves on the medical quality review panel
4-64 is not liable in a civil action for an act performed in good faith
4-65 as a member of the panel and is entitled to the same protections
4-66 afforded a commission member under Section 402.010.
4-67 (e) The actions of a person serving on the medical quality
4-68 review panel do not constitute utilization review and are not
4-69 subject to Article 21.58A, Insurance Code.
5-1 Sec. 413.0513. CONFIDENTIALITY REQUIREMENTS. (a)
5-2 Information maintained by or on behalf of the commission under
5-3 Section 413.0512, and that is confidential under law, may not be
5-4 disclosed under Section 413.0512 except:
5-5 (1) in a criminal proceeding;
5-6 (2) in a hearing conducted by or on behalf of the
5-7 commission;
5-8 (3) in a hearing conducted by another licensing or
5-9 regulatory authority, as provided in the interagency agreement; or
5-10 (4) on a finding of good cause in an administrative or
5-11 judicial proceeding involving the enforcement of this subtitle or
5-12 in a disciplinary action under this subtitle.
5-13 (b) Confidential information developed by the commission
5-14 under Section 413.0512 is not subject to discovery or court
5-15 subpoena in any action other than:
5-16 (1) an action to enforce this subtitle brought by the
5-17 commission, an appropriate licensing or regulatory agency, or an
5-18 appropriate enforcement authority; or
5-19 (2) a criminal proceeding.
5-20 SECTION 1.03. (a) The Texas Workers' Compensation Commission
5-21 shall adopt rules as required by Chapter 408, Labor Code, as
5-22 amended by this article, not later than February 1, 2002.
5-23 (b) A doctor is not required to hold a certificate of
5-24 registration issued under Section 408.023, Labor Code, as amended
5-25 by this article, to perform medical services under Subtitle A,
5-26 Title 5, Labor Code, before the date provided by commission rules
5-27 adopted to implement that section.
5-28 ARTICLE 2. MEDICAL NETWORK PARTICIPATION OPTION
5-29 SECTION 2.01. Subchapter B, Chapter 408, Labor Code, is
5-30 amended by adding Sections 408.0221, 408.0222, and 408.0223 to read
5-31 as follows:
5-32 Sec. 408.0221. REGIONAL HEALTH CARE DELIVERY NETWORKS;
5-33 ADVISORY COMMITTEE. (a) In this section:
5-34 (1) "Advisory committee" means the Health Care Network
5-35 Advisory Committee.
5-36 (2) "Regional network" means a regional workers'
5-37 compensation health care delivery network established by the
5-38 commission under this section.
5-39 (b) The Health Care Network Advisory Committee is
5-40 established to advise the commission on the implementation of this
5-41 section and Section 408.0222. Members of the advisory committee
5-42 are appointed by and serve at the pleasure of the governor, with
5-43 the membership as follows:
5-44 (1) three employee representatives recommended by a
5-45 recognized statewide labor federation;
5-46 (2) three employer representatives;
5-47 (3) two ex officio insurance carrier representatives;
5-48 (4) two ex officio health care provider
5-49 representatives; and
5-50 (5) the commission's medical advisor, who shall serve
5-51 as chair of the advisory committee.
5-52 (c) The commission, on behalf of the advisory committee
5-53 established under this section, shall establish and, through
5-54 competitive procurement, contract with regional networks for the
5-55 provision of health care under this subtitle. The commission
5-56 shall, through competitive procurement, contract with one or more
5-57 organizations to determine the feasibility of, develop, and
5-58 evaluate the regional networks established under this section.
5-59 Those organizations shall also recommend to the advisory committee
5-60 appropriate network standards and application requirements and
5-61 assist the advisory committee during the procurement process. The
5-62 regional networks shall be fee-for-service networks designed to
5-63 improve the quality and reduce the cost of health care with active
5-64 health care management and monitoring and a full range of health
5-65 care services under contract as considered feasible by the
5-66 commission.
5-67 (d) The advisory committee shall make recommendations to the
5-68 commission regarding:
5-69 (1) the development of the standards by which health
6-1 care services are provided through regional networks;
6-2 (2) regional network application requirements and
6-3 fees;
6-4 (3) contract proposals;
6-5 (4) the feasibility of establishing one or more
6-6 regional networks using a phased implementation and evaluation
6-7 process;
6-8 (5) the use of consultants as necessary to assist the
6-9 commission in the procurement of regional network contracts; and
6-10 (6) the selection of administrators to build and
6-11 manage the regional networks and to report on their progress.
6-12 (e) The advisory committee shall gather information from
6-13 other entities, including the Research and Oversight Council on
6-14 Workers' Compensation, the Texas Health Care Information Council,
6-15 the Texas Department of Insurance, the Texas Department of Health,
6-16 and the Employees Retirement System of Texas.
6-17 (f) The standards adopted for preferred provider networks
6-18 under Article 3.70-3C, Insurance Code, as added by Chapter 1024,
6-19 Acts of the 75th Legislature, Regular Session, 1997, apply as
6-20 minimum standards for regional health care delivery networks
6-21 created under this section and are adopted by reference in this
6-22 section except to the extent they are inconsistent with this
6-23 subtitle. The advisory committee may also recommend additional
6-24 standards, including standards that require:
6-25 (1) for each geographic region, access to an adequate
6-26 number of health care providers and treating doctors in each health
6-27 care discipline and the professional specialties within those
6-28 disciplines and the use of economic profiling to ensure a viable
6-29 network as described by Article 3.70-3C, Insurance Code, as added
6-30 by Chapter 1024, Acts of the 75th Legislature, Regular Session,
6-31 1997;
6-32 (2) the ability of an employee to receive treatment by
6-33 a regional network provider within a reasonable amount of time of
6-34 the regional network's knowledge of the need or request for
6-35 treatment and within a reasonable travel distance for the employee;
6-36 (3) a reasonable effort by the regional network to
6-37 attract health care providers who reflect the ethnic and cultural
6-38 background of the regional employee population;
6-39 (4) the availability of board-certified occupational
6-40 medicine specialists to provide expertise on disability management
6-41 and prevention and treatment of occupational injuries and
6-42 illnesses;
6-43 (5) accreditation of the regional networks or a
6-44 commitment to seek accreditation from a nationally recognized
6-45 organization such as the American Accreditation HealthCare
6-46 Commission or the National Committee for Quality Assurance;
6-47 (6) the use of strict credentialing criteria by
6-48 regional networks in the selection and deselection of its health
6-49 care providers, including verification that the provider:
6-50 (A) is on the commission's list of approved
6-51 doctors, if the provider is required to be on that list;
6-52 (B) has not been sanctioned or made subject to
6-53 additional utilization review requirements by the commission;
6-54 (C) is not, at the time of selection, subject to
6-55 sanctions or substantive practice restrictions imposed by the
6-56 provider's licensing authority;
6-57 (D) has or is able to obtain practice
6-58 privileges, if required, at a participating hospital; and
6-59 (E) is covered by medical malpractice insurance
6-60 coverage as required by the regional network contract;
6-61 (7) satisfactory evidence of the regional network's
6-62 ability to comply with any financial requirements and ensure
6-63 delivery of services;
6-64 (8) compliance with ongoing training and educational
6-65 requirements established by the commission;
6-66 (9) the use of nationally recognized, scientifically
6-67 valid, and outcome-based treatment standards as guidelines for
6-68 health care;
6-69 (10) disclosure of the availability of interpreter
7-1 services as appropriate for the evaluation and treatment of
7-2 employees;
7-3 (11) timely and accurate reporting of data to
7-4 appropriately manage and determine the effectiveness of the
7-5 regional network in reducing medical costs and ensuring quality of
7-6 care; and
7-7 (12) a process for reconsideration of medical
7-8 necessity denials and resolution of medical necessity disputes
7-9 within the regional network.
7-10 (g) The advisory committee and the Research and Oversight
7-11 Council on Workers' Compensation shall develop evaluation standards
7-12 and specifications as necessary to implement a workers'
7-13 compensation medical regional network report card. The commission
7-14 shall ensure that the report card is published and available for
7-15 inspection. The commission may procure services as necessary to
7-16 produce the report card. The report card, at a minimum, must be
7-17 based on contracted reviews and must include a risk-adjusted
7-18 evaluation of:
7-19 (1) employee access to care;
7-20 (2) coordination of care and return to work;
7-21 (3) communication among system participants;
7-22 (4) return-to-work outcomes;
7-23 (5) health-related outcomes;
7-24 (6) employee, health care provider, employer, and
7-25 insurance carrier satisfaction;
7-26 (7) disability and re-injury prevention;
7-27 (8) appropriate clinical care;
7-28 (9) health care costs;
7-29 (10) utilization of health care; and
7-30 (11) statistical outcomes of medical dispute
7-31 resolution provided by independent review organizations.
7-32 (h) The regional network administrators shall report
7-33 quarterly to the commission and the advisory committee on the
7-34 progress of implementing the regional networks and shall submit
7-35 consolidated annual reports. The Research and Oversight Council on
7-36 Workers' Compensation shall report to the legislature by January 1
7-37 of each odd-numbered year on the status of the implementation of
7-38 regional networks under this section.
7-39 (i) The commission shall ensure that regional network
7-40 contracts provide that insurance carriers have reasonable rights to
7-41 conduct audits under this subsection. Insurance carriers
7-42 participating in the regional network shall be allowed the
7-43 opportunity for consolidated audits of the regional networks.
7-44 (j) The cost of assessing the feasibility of, developing,
7-45 and evaluating the regional networks created under this section
7-46 shall be funded through an assessment on the subsequent injury fund
7-47 established under Section 403.006. This cost may not exceed
7-48 $250,000 per regional network or a total of $1.5 million for up to
7-49 six regional networks. The cost of ongoing regional network
7-50 administration and management services shall be included in the
7-51 fees for health care services paid by insurance carriers
7-52 participating in the regional network.
7-53 Sec. 408.0222. PARTICIPATION IN REGIONAL NETWORK; SELECTION
7-54 OF DOCTOR WITHIN REGIONAL NETWORK; BENEFIT INCENTIVES. (a) An
7-55 insurance carrier or a self-insurer certified to provide workers'
7-56 compensation coverage in this state may elect to participate, by
7-57 contract, in a regional network established under Section 408.0221.
7-58 A public employer covered under Subtitle C of this title, other
7-59 than an employer covered under Chapter 504, is required to
7-60 participate in a regional network established under Section
7-61 408.0221. An insurance carrier who elects to participate in
7-62 regional networks agrees to abide by the terms of the regional
7-63 network contracts between the commission and the regional networks.
7-64 (b) An insurance carrier may limit its election to
7-65 participate in a regional network established under Section
7-66 408.0221 to a particular employer or a particular region of this
7-67 state. This subsection expires January 1, 2006.
7-68 (c) A doctor participating in a regional network established
7-69 under Section 408.0221 may perform only those procedures that are
8-1 within the scope of the practice for which the doctor is licensed.
8-2 (d) An employee may elect to participate or not participate
8-3 in a regional network established under Section 408.0221. Only an
8-4 employee covered by an insurance carrier who has elected to
8-5 participate in a regional network established under Section
8-6 408.0221 may elect to participate in that regional network. The
8-7 commission, by rule, shall establish the form and manner by which
8-8 an employee receives notice of the employee's rights under this
8-9 section. Except as provided by Subsection (e), an employee may
8-10 make the election described by this subsection at the time of
8-11 employment or may make that election or rescind an election made
8-12 under this subsection at any later time before the earlier of:
8-13 (1) the date on which the employee begins to receive
8-14 enhanced income benefits under Subsection (l); or
8-15 (2) the 14th day after the date on which the employee
8-16 incurs a compensable injury.
8-17 (e) An employee may elect to participate in a regional
8-18 network established under Section 408.0221 at any time with the
8-19 insurance carrier's permission. An employee is not bound by an
8-20 election to participate in a regional network made under
8-21 Subsection (d) or this subsection if:
8-22 (1) the insurance carrier waives the election;
8-23 (2) the commission invalidates the election based on a
8-24 determination of coercion; or
8-25 (3) the employee relocates to an area outside of the
8-26 regional network's service area, and the regional network is not
8-27 able to identify alternate network providers to provide health care
8-28 services reasonable for the employee's medical condition.
8-29 (f) An insurance carrier who elects to participate in a
8-30 regional network established under Section 408.0221 shall provide
8-31 each employer who obtains coverage through the insurance carrier
8-32 with adequate information about the regional network to share with
8-33 the employer's employees. Before an employee makes an election
8-34 under this section to participate in a regional network, the
8-35 employer shall provide the employee with:
8-36 (1) a complete, plain-language description of the
8-37 regional network's services, restrictions, and benefits, including
8-38 a description of the enhanced income benefits that may be due; and
8-39 (2) access to the most recent:
8-40 (A) list of doctors available through the
8-41 regional network; and
8-42 (B) regional network report card developed under
8-43 Section 408.0221.
8-44 (g) An employer shall not discharge, subject to disciplinary
8-45 action, or take an adverse employment action against an employee
8-46 who elects not to participate in a regional network created under
8-47 Section 408.0221 if the employer's action would not have occurred
8-48 in the absence of the employee's election not to participate.
8-49 (h) An employee may bring suit against an employer for
8-50 violation of Subsection (g) if:
8-51 (1) the employee gives written notice of intent to
8-52 bring suit to the employer within 60 days of the alleged violation;
8-53 and
8-54 (2) the employer does not reinstate the employee and
8-55 pay actual wages lost and reasonable attorney's fees incurred due
8-56 to the employer's action within 60 days of notification of the
8-57 employee's intent to bring suit.
8-58 (i) The employee must bring suit for an employer's violation
8-59 of Subsection (g) within 120 days of the alleged violation. A suit
8-60 under this section may be brought in the county in which:
8-61 (1) the plaintiff resides;
8-62 (2) the plaintiff was employed; or
8-63 (3) the defendant's primary place of business is
8-64 located.
8-65 (j) If the employee prevails in an action under Subsection
8-66 (h), the employee may recover:
8-67 (1) lost wages;
8-68 (2) reinstatement of front pay as equitable relief in
8-69 lieu of reinstatement;
9-1 (3) reasonable attorney's fees; and
9-2 (4) court costs.
9-3 (k) A suit under this section is the exclusive remedy for
9-4 violation of Subsection (g) and the provisions of Chapter 451 do
9-5 not apply to such a violation. Parties may not maintain an action
9-6 under Rule 42, Texas Rules of Civil Procedure.
9-7 (l) An employee who elects to participate in a regional
9-8 network created under Section 408.0221 shall receive:
9-9 (1) notwithstanding Section 408.082(c), income
9-10 benefits from the date disability begins if the disability lasts
9-11 two weeks or longer; and
9-12 (2) notwithstanding Section 408.061, an increased
9-13 maximum weekly benefit of up to 150 percent of the state average
9-14 weekly wage for temporary income benefits.
9-15 (m) Except for emergency care, or as otherwise provided by
9-16 this section, an employee who elects to participate in a regional
9-17 network shall receive medical treatment, including referrals, from
9-18 health care providers within the regional network. An employee or
9-19 an employee's treating doctor may use a health care provider
9-20 outside of the regional network with the approval of the regional
9-21 network for good cause consistent with the regional network
9-22 contract. If medically necessary services are not available
9-23 through regional network health care providers, the regional
9-24 network must, on the request of a regional network health care
9-25 provider, within a reasonable time period allow a referral to a
9-26 nonregional network health care provider and shall fully reimburse
9-27 the nonregional network physician or provider at an agreed rate.
9-28 For purposes of this subsection, "emergency care" has the meaning
9-29 assigned by Section 2(g), Texas Health Maintenance Organization Act
9-30 (Article 20A.02, Vernon's Texas Insurance Code).
9-31 (n) A health care provider who participates in a regional
9-32 network created under Section 408.0221 shall be reimbursed and be
9-33 subject to utilization review as provided by the regional network
9-34 contract. The insurance carrier is responsible for payment of
9-35 regional network providers as provided by the contract between the
9-36 regional network and the insurance carrier. A nonregional network
9-37 provider who does not obtain the approval of the regional network
9-38 to provide services may not be reimbursed by the insurance carrier.
9-39 (o) To resolve an issue regarding the necessity or the
9-40 appropriateness of care, or referrals to nonregional network
9-41 physicians or providers, an employee or an employee's treating
9-42 doctor may request a review by an independent review organization
9-43 under Section 413.031(c).
9-44 (p) An employee who elects to participate in a regional
9-45 network established under Section 408.0221 shall select an initial
9-46 treating doctor within the regional network as provided by the
9-47 regional network contract. An employee may change treating doctors
9-48 within the regional network in accordance with Sections 408.022(d)
9-49 and (e). An employee who requests to change treating doctors
9-50 within the regional network is not subject to Section 408.022(b) or
9-51 (c). At the sole discretion of the regional network, an employee
9-52 may select a treating doctor outside of the regional network if:
9-53 (1) the employee has a pre-existing relationship with
9-54 a doctor who maintains the employee's medical records and has a
9-55 documented history of treatment before the date of injury; and
9-56 (2) that doctor agrees in writing to abide by the
9-57 rules, terms, and conditions of the regional network contract,
9-58 including an agreement to refer the employee within the regional
9-59 network for services available through the regional network.
9-60 (q) An employee is subject to the selection of doctor,
9-61 change of doctor, and other medical benefit and income benefit
9-62 requirements established under Chapters 408 and 413 if an employee:
9-63 (1) elects not to participate in a regional network
9-64 established under Section 408.0221; or
9-65 (2) is covered by an insurance carrier that has not
9-66 elected to participate in a regional network established under
9-67 Section 408.0221.
9-68 (r) An employee may change treating doctors within the
9-69 regional network established under Section 408.0221 in which the
10-1 employee is participating in accordance with the regional network
10-2 contract and is entitled to:
10-3 (1) make one change from the initial treating doctor
10-4 to an alternate treating doctor within the regional network unless
10-5 the initial treating doctor has found that the employee has reached
10-6 maximum medical improvement, in which case the commission shall
10-7 appoint a designated doctor on the request of the employee as
10-8 provided by Section 408.0041; and
10-9 (2) request additional changes of the treating doctor
10-10 in the manner provided by the regional network contract.
10-11 Sec. 408.0223. INSURANCE CARRIER NETWORKS. (a) In this
10-12 section, "insurance carrier network" means a voluntary workers'
10-13 compensation health care delivery network established by an
10-14 insurance carrier. The term does not include a regional network
10-15 established under Section 408.0221.
10-16 (b) This subtitle does not prohibit an insurance carrier,
10-17 whether doing business as an individual carrier or as a group, from
10-18 participating in or maintaining voluntary insurance carrier
10-19 networks if those voluntary insurance carrier networks allow
10-20 selection of doctors as provided by Section 408.022.
10-21 (c) This subtitle does not prohibit an insurance carrier
10-22 from concurrently participating in an insurance carrier network and
10-23 a regional network established under Section 408.0221.
10-24 SECTION 2.02. (a) The Texas Workers' Compensation Commission
10-25 shall adopt rules as required by Chapter 408, Labor Code, as
10-26 amended by this article, not later than October 1, 2002.
10-27 (b) The Texas Workers' Compensation Commission shall convene
10-28 the first meeting of the Health Care Network Advisory Committee
10-29 established under Section 408.0221, Labor Code, as added by this
10-30 article, not later than October 1, 2001.
10-31 (c) Unless determined to be unfeasible, the Texas Workers'
10-32 Compensation Commission shall contract for regional workers'
10-33 compensation health care delivery networks under Section 408.0221,
10-34 Labor Code, as added by this article, not later than December 31,
10-35 2002.
10-36 (d) Section 408.0222, Labor Code, as added by this article,
10-37 as that section affects workers' compensation benefits an employee
10-38 may receive for participating in a regional network under Section
10-39 408.0221, Labor Code, as added by this article, takes effect on the
10-40 certification by the Texas Workers' Compensation Commission that
10-41 the regional network is operational.
10-42 ARTICLE 3. RETURN-TO-WORK REPORTING AND SERVICES
10-43 SECTION 3.01. Section 409.005, Labor Code, is amended to read
10-44 as follows:
10-45 Sec. 409.005. REPORT OF INJURY; MODIFIED DUTY PROGRAM
10-46 NOTICE; ADMINISTRATIVE VIOLATION. (a) An employer shall report to
10-47 the employer's insurance carrier if:
10-48 (1) an injury results in the absence of an employee of
10-49 that employer from work for more than one day; or
10-50 (2) an employee of the employer notifies that employer
10-51 of an occupational disease under Section 409.001.
10-52 (b) The report under Subsection (a) must be made not later
10-53 than the eighth day after:
10-54 (1) the employee's absence from work for more than one
10-55 day due to an injury; or
10-56 (2) the day on which the employer receives notice
10-57 under Section 409.001 that the employee has contracted an
10-58 occupational disease.
10-59 (c) The employer shall deliver a written copy of the report
10-60 under Subsection (a) to the injured employee at the time that the
10-61 report is made to the insurance carrier.
10-62 (d) The insurance carrier shall file the report of the
10-63 injury on behalf of the policyholder. Except as provided by
10-64 Subsection (e), the insurance carrier must electronically file the
10-65 report with the commission not later than the seventh day after the
10-66 date on which the carrier receives the report from the employer.
10-67 (e) The executive director may waive the electronic filing
10-68 requirement under Subsection (d) and allow an insurance carrier to
10-69 mail or deliver the report to the commission not later than the
11-1 seventh day after the date on which the carrier receives the report
11-2 from the employer.
11-3 (f) A report required under this section may not be
11-4 considered to be an admission by or evidence against an employer or
11-5 an insurance carrier in a proceeding before the commission or a
11-6 court in which the facts set out in the report are contradicted by
11-7 the employer or insurance carrier.
11-8 (g) In addition to any information required under Subsection
11-9 (h), the report provided to the injured employee under Subsection
11-10 (c) must contain a summary written in plain language of the
11-11 employee's statutory rights and responsibilities under this
11-12 subtitle.
11-13 (h) The commission may adopt rules relating to:
11-14 (1) the information that must be contained in a report
11-15 required under this section, including the summary of rights and
11-16 responsibilities required under Subsection (g); and
11-17 (2) the development and implementation of an
11-18 electronic filing system for injury reports under this section.
11-19 (i) An employer and insurance carrier shall file subsequent
11-20 reports as required by commission rule.
11-21 (j) The employer shall, on the written request of the
11-22 employee, a doctor, the insurance carrier, or the commission,
11-23 notify the employee, the employee's treating doctor if known to the
11-24 employer, and the insurance carrier of the existence or absence of
11-25 opportunities for modified duty or a modified duty return-to-work
11-26 program available through the employer. If those opportunities or
11-27 that program exists, the employer shall identify the employer's
11-28 contact person and provide other information to assist the treating
11-29 doctor, the employee, and the insurance carrier to assess modified
11-30 duty or return-to-work options.
11-31 (k) A person commits a violation if the person fails to
11-32 comply with this section unless good cause exists. A violation
11-33 under this subsection is a Class D administrative violation.
11-34 SECTION 3.02. Subchapter B, Chapter 413, Labor Code, is
11-35 amended by adding Section 413.021 to read as follows:
11-36 Sec. 413.021. RETURN-TO-WORK COORDINATION SERVICES. (a) An
11-37 insurance carrier shall, with the agreement of a participating
11-38 employer, provide the employer with return-to-work coordination
11-39 services as necessary to facilitate an employee's reintegration to
11-40 employment. The insurance carrier shall notify the employer of the
11-41 availability of return-to-work coordination services. In offering
11-42 the services, insurance carriers and the commission shall target
11-43 employers without return-to-work programs and shall focus
11-44 return-to-work efforts on workers who begin to receive temporary
11-45 income benefits. These services may be offered by insurance
11-46 carriers in conjunction with the accident prevention services
11-47 provided under Section 411.061. Nothing in this section supersedes
11-48 the provisions of a collective bargaining agreement between an
11-49 employer and the employer's employees, and nothing in this section
11-50 authorizes or requires an employer to engage in conduct that would
11-51 otherwise be a violation of the employer's obligations under the
11-52 National Labor Relations Act (29 U.S.C. Section 151 et seq.), and
11-53 its subsequent amendments.
11-54 (b) Return-to-work coordination services under this section
11-55 may include:
11-56 (1) job analysis to identify the physical demands of a
11-57 job;
11-58 (2) job modification and restructuring assessments as
11-59 necessary to match job requirements with the functional capacity of
11-60 an employee; and
11-61 (3) medical or vocational case management to
11-62 coordinate the efforts of the employer, the treating doctor, and
11-63 the injured employee to achieve timely return to work.
11-64 (c) An insurance carrier is not required to provide physical
11-65 workplace modifications under this section and is not liable for
11-66 the cost of modifications made under this section to facilitate an
11-67 employee's return to employment.
11-68 (d) The commission shall use certified rehabilitation
11-69 counselors or other appropriately trained or credentialed
12-1 specialists to provide training to commission staff regarding the
12-2 coordination of return-to-work services under this section.
12-3 (e) The commission shall adopt rules necessary to collect
12-4 data on return-to-work outcomes to allow full evaluations of
12-5 successes and of barriers to achieving timely return to work after
12-6 an injury.
12-7 (f) The commission shall report twice annually to the
12-8 Research and Oversight Council on Workers' Compensation regarding
12-9 the implementation and outcome of the return-to-work initiatives
12-10 required by this section.
12-11 SECTION 3.03. The Texas Workers' Compensation Commission may
12-12 adopt rules as necessary to implement Sections 409.005(j) and
12-13 413.021, Labor Code, as added by this article, not earlier than
12-14 January 1, 2004.
12-15 ARTICLE 4. PREAUTHORIZATION, CONCURRENT REVIEW,
12-16 AND CERTIFICATION REQUIREMENTS
12-17 SECTION 4.01. Section 408.026, Labor Code, is amended to read
12-18 as follows:
12-19 Sec. 408.026. SPINAL SURGERY [SECOND OPINION]. [(a)] Except
12-20 in a medical emergency, an insurance carrier is liable for medical
12-21 costs related to spinal surgery only as provided by Section 413.014
12-22 and commission rules [if:]
12-23 [(1) before surgery, the employee obtains from a
12-24 doctor approved by the insurance carrier or the commission a second
12-25 opinion that concurs with the treating doctor's recommendation;]
12-26 [(2) the insurance carrier waives the right to an
12-27 examination or fails to request an examination before the 15th day
12-28 after the date of the notification that surgery is recommended; or]
12-29 [(3) the commission determines that extenuating
12-30 circumstances exist and orders payment for surgery].
12-31 [(b) The commission shall adopt rules necessary to ensure
12-32 that an examination required under this section is performed
12-33 without undue delay.]
12-34 SECTION 4.02. Section 413.014, Labor Code, is amended to read
12-35 as follows:
12-36 Sec. 413.014. PREAUTHORIZATION REQUIREMENTS; CONCURRENT
12-37 REVIEW AND CERTIFICATION OF HEALTH CARE. (a) In this section,
12-38 "investigational or experimental service or device" means a health
12-39 care treatment, service, or device for which there is early,
12-40 developing scientific or clinical evidence demonstrating the
12-41 potential efficacy of the treatment, service, or device but that is
12-42 not yet broadly accepted as the prevailing standard of care.
12-43 (b) The commission by rule shall specify which health care
12-44 treatments and services require express preauthorization or
12-45 concurrent review by the insurance carrier. Treatments and services
12-46 for a medical emergency do not require express preauthorization.
12-47 (c) The commission rules adopted under this section must
12-48 provide that preauthorization and concurrent review are required at
12-49 a minimum for:
12-50 (1) spinal surgery, as provided by Section 408.026;
12-51 (2) work-hardening or work-conditioning services
12-52 provided by a health care facility that is not credentialed by an
12-53 organization recognized by commission rules;
12-54 (3) inpatient hospitalization, including any procedure
12-55 and length of stay;
12-56 (4) outpatient or ambulatory surgery; and
12-57 (5) any investigational or experimental services or
12-58 devices.
12-59 (d) [(b)] The insurance carrier is not liable for those
12-60 specified treatments and services requiring preauthorization unless
12-61 preauthorization is sought by the claimant or health care provider
12-62 and either obtained from the insurance carrier or ordered by the
12-63 commission.
12-64 (e) Each insurance carrier shall allow health care providers
12-65 to request that the insurance carrier prospectively or concurrently
12-66 certify coverage for health care services, including pharmaceutical
12-67 services, that do not require preauthorization and concurrent
12-68 review. Regardless of the insurance carrier's response to the
12-69 request, the carrier retains the right to retrospectively review
13-1 health care services and supporting records and to contest the
13-2 certification of those services.
13-3 SECTION 4.03. Subchapter B, Chapter 413, Labor Code, is
13-4 amended by adding Section 413.0141 to read as follows:
13-5 Sec. 413.0141. INITIAL PHARMACEUTICAL COVERAGE. The
13-6 commission may by rule provide that an insurance carrier shall
13-7 provide for payment of specified pharmaceutical services sufficient
13-8 for the first seven days following the date of injury if the health
13-9 care provider requests and receives verification of insurance
13-10 coverage and a verbal confirmation of an injury from the employer
13-11 or from the insurance carrier as provided by Section 413.014. The
13-12 rules adopted by the commission may also provide that an insurance
13-13 carrier is eligible for reimbursement for pharmaceutical services
13-14 paid under this section from the subsequent injury fund in the
13-15 event the injury is determined not to be compensable.
13-16 SECTION 4.04. The Texas Workers' Compensation Commission
13-17 shall adopt the rules required under Sections 408.026 and 413.014,
13-18 Labor Code, as amended or added by this article, not later than
13-19 February 1, 2002, and may adopt rules required by Section 413.0141,
13-20 Labor Code.
13-21 ARTICLE 5. REQUIRED MEDICAL EXAMINATIONS; DESIGNATED DOCTORS
13-22 SECTION 5.01. Sections 408.004(a) and (c), Labor Code, are
13-23 amended to read as follows:
13-24 (a) The commission may require an employee to submit to
13-25 medical examinations to resolve any question about[:]
13-26 [(1)] the appropriateness of the health care received
13-27 by the employee[;]
13-28 [(2) the impairment caused by the compensable injury;]
13-29 [(3) the attainment of maximum medical improvement; or]
13-30 [(4) similar issues].
13-31 (c) The insurance carrier shall pay for:
13-32 (1) an examination required under Subsection (a) or
13-33 (b); and
13-34 (2) the reasonable mileage expenses [expense] incident
13-35 to the employee in submitting to the examination.
13-36 SECTION 5.02. Subchapter A, Chapter 408, Labor Code, is
13-37 amended by adding Section 408.0041 to read as follows:
13-38 Sec. 408.0041. DESIGNATED DOCTOR EXAMINATION. (a) At the
13-39 request of an insurance carrier or an employee, the commission
13-40 shall order a medical examination to resolve any question about:
13-41 (1) the impairment caused by the compensable injury;
13-42 (2) the attainment of maximum medical improvement;
13-43 (3) the ability of the employee to return to work;
13-44 (4) the extent of the injury; or
13-45 (5) similar issues.
13-46 (b) A medical examination requested under Subsection (a)
13-47 shall be performed by the next available doctor on the commission's
13-48 list of designated doctors whose credentials are appropriate for
13-49 the issue in question and the injured employee's medical condition.
13-50 The designated doctor doing the review must be knowledgeable and
13-51 experienced with the treatment and procedures used by the doctor
13-52 treating the patient's medical condition and the treatments and
13-53 procedures performed must be within the scope of practice of the
13-54 designated doctor. The commission shall assign a designated doctor
13-55 not later than the 10th day after the date on which the request
13-56 under Subsection (a) is received, and the examination must be
13-57 conducted not later than the 21st day after the date on which the
13-58 commission issues the order under Subsection (a). An examination
13-59 under this section may not be held more frequently than every 60
13-60 days, unless good cause for more frequent examinations exists, as
13-61 defined by commission rules.
13-62 (c) The treating doctor and the insurance carrier are both
13-63 responsible for sending to the designated doctor all of the injured
13-64 employee's medical records relating to the issue to be evaluated by
13-65 the designated doctor that are in their possession. The treating
13-66 doctor and insurance carrier may send the records without a signed
13-67 release from the employee. The designated doctor is authorized to
13-68 receive the employee's confidential medical records to assist in
13-69 the resolution of disputes. The treating doctor and insurance
14-1 carrier may also send the designated doctor an analysis of the
14-2 injured worker's medical condition, functional abilities, and
14-3 return-to-work opportunities.
14-4 (d) To avoid undue influence on a person selected as a
14-5 designated doctor under this section, only the injured employee or
14-6 an appropriate member of the staff of the commission may
14-7 communicate with the designated doctor about the case regarding the
14-8 injured employee's medical condition or history before the
14-9 examination of the injured employee by the designated doctor.
14-10 After that examination is completed, communication with the
14-11 designated doctor regarding the injured employee's medical
14-12 condition or history may be made only through appropriate
14-13 commission staff members. The designated doctor may initiate
14-14 communication with any doctor who has previously treated or
14-15 examined the injured employee for the work-related injury or with
14-16 peer reviewers identified by the insurance carrier.
14-17 (e) The designated doctor shall report to the commission.
14-18 The report of the designated doctor has presumptive weight unless
14-19 the great weight of the evidence is to the contrary. An employer
14-20 may make a bona fide offer of employment subject to Sections
14-21 408.103(e) and 408.144(c) based on the designated doctor's report.
14-22 (f) If an insurance carrier is not satisfied with the
14-23 opinion rendered by a designated doctor under this section, the
14-24 insurance carrier may request the commission to order an employee
14-25 to attend an examination by a doctor selected by the insurance
14-26 carrier. The commission shall allow the insurance carrier
14-27 reasonable time to obtain and present the opinion of the doctor
14-28 selected under this subsection before the commission makes a final
14-29 decision on the merits of the issue in question.
14-30 (g) The insurance carrier shall pay for:
14-31 (1) an examination required under Subsection (a); and
14-32 (2) the reasonable expenses incident to the employee
14-33 in submitting to the examination.
14-34 (h) An employee is not entitled to temporary income
14-35 benefits, and an insurance carrier may suspend the payment of
14-36 temporary income benefits, during and for a period in which the
14-37 employee fails to submit to an examination under Subsection (a) or
14-38 (b) unless the commission determines that the employee had good
14-39 cause for the failure to submit to the examination. The commission
14-40 may order temporary income benefits to be paid for the period that
14-41 the commission determines the employee had good cause. The
14-42 commission by rule shall ensure that an employee receives
14-43 reasonable notice of an examination and of the insurance carrier's
14-44 basis for suspension of payment and that the employee is provided a
14-45 reasonable opportunity to reschedule an examination missed by the
14-46 employee for good cause.
14-47 (i) If the report of a designated doctor indicates that an
14-48 employee can return to work immediately or has reached maximum
14-49 medical improvement, the insurance carrier may suspend or reduce
14-50 the payment of temporary income benefits immediately.
14-51 (j) If the report of a doctor selected by the insurance
14-52 carrier indicates that an employee can return to work immediately
14-53 or has reached maximum medical improvement, the insurance carrier
14-54 may suspend or reduce the payment of temporary income benefits on
14-55 the 14th day after the date on which the insurance carrier files a
14-56 notice of suspension with the commission.
14-57 (k) At the request of the employee or the insurance carrier
14-58 to dispute a decision under Subsection (i) or (j), the commission
14-59 shall hold an expedited benefit review conference, by personal
14-60 appearance or by telephone, not later than the 10th day after the
14-61 date on which the commission receives the request for the
14-62 conference. If a benefit review conference is not held by the 14th
14-63 day after the date on which the commission receives the insurance
14-64 carrier's notice of suspension, an interlocutory order, effective
14-65 from the date of the report certifying maximum medical improvement,
14-66 is automatically entered for the continuation of temporary income
14-67 benefits until a benefit review conference is held, and the
14-68 insurance carrier is eligible for reimbursement for any overpayment
14-69 of benefits as provided by Chapter 410. The commission is not
15-1 required to schedule a contested case hearing as required by
15-2 Section 410.025(b) if a benefit review conference is scheduled
15-3 under this subsection. If a benefit review conference is held not
15-4 later than the 14th day, the commission may enter an interlocutory
15-5 order for the continuation of benefits and the insurance carrier is
15-6 eligible for reimbursement for any overpayments of benefits as
15-7 provided by Chapter 410. The commission shall adopt rules as
15-8 necessary to implement this subsection under which:
15-9 (1) an insurance carrier is required to notify the
15-10 employee and the treating doctor of the suspension of benefits
15-11 under this subsection by certified mail or another verifiable
15-12 delivery method;
15-13 (2) the commission makes a reasonable attempt to
15-14 obtain the treating doctor's opinion before the commission makes a
15-15 determination regarding the entry of an interlocutory order; and
15-16 (3) the commission may allow abbreviated contested
15-17 case hearings by personal appearance or telephone to consider
15-18 issues relating to overpayment of benefits under this section.
15-19 SECTION 5.03. Sections 408.122(b) and (c), Labor Code, are
15-20 amended to read as follows:
15-21 (b) To be eligible to serve as a designated doctor, a doctor
15-22 must meet specific qualifications, including training in the
15-23 determination of impairment ratings. The executive director shall
15-24 develop qualification standards and administrative policies to
15-25 implement this subsection, and the commission may adopt rules as
15-26 necessary. The designated doctor doing the review must be
15-27 knowledgeable and experienced with the treatment and procedures
15-28 used by the doctor treating the patient's medical condition and the
15-29 treatments and procedures performed must be within the scope of
15-30 practice of the designated doctor. A designated doctor's
15-31 credentials must be appropriate for the issue in question and the
15-32 injured employee's medical condition. [To the extent possible, a
15-33 designated doctor must be in the same discipline and licensed by
15-34 the same board of examiners as the employee's doctor of choice.]
15-35 (c) [If a dispute exists as to whether the employee has
15-36 reached maximum medical improvement, the commission shall direct
15-37 the employee to be examined by a designated doctor chosen by mutual
15-38 agreement of the parties. If the parties are unable to agree on a
15-39 designated doctor, the commission shall direct the employee to be
15-40 examined by a designated doctor chosen by the commission. The
15-41 designated doctor shall report to the commission.] The report of
15-42 the designated doctor has presumptive weight, and the commission
15-43 shall base its determination of whether the employee has reached
15-44 maximum medical improvement on the report unless the great weight
15-45 of the other medical evidence is to the contrary.
15-46 SECTION 5.04. The Research and Oversight Council on Workers'
15-47 Compensation shall report to the legislature not later than
15-48 December 31, 2002, regarding issues related to medical examinations
15-49 conducted under Section 408.0041, Labor Code, as added by this
15-50 article.
15-51 SECTION 5.05. Section 408.004, Labor Code, as amended by this
15-52 article, applies only to a request for a medical examination made
15-53 to the Texas Workers' Compensation Commission by an insurance
15-54 carrier on or after January 1, 2002.
15-55 ARTICLE 6. MEDICAL BENEFIT REGULATION; DISPUTE RESOLUTION
15-56 SECTION 6.01. Section 408.028, Labor Code, is amended to read
15-57 as follows:
15-58 Sec. 408.028. PHARMACEUTICAL SERVICES. (a) A physician
15-59 [health care practitioner] providing care to an employee under this
15-60 subchapter shall prescribe for the employee any necessary
15-61 prescription drugs, and over-the-counter alternatives to
15-62 prescription medications as clinically appropriate and applicable,
15-63 in accordance with applicable state law and as provided by
15-64 Subsection (b). A doctor providing care may order over-the-counter
15-65 alternatives to prescription medications, when clinically
15-66 appropriate, in accordance with applicable state law and as
15-67 provided by Subsection (b).
15-68 (b) The commission by rule shall develop an open formulary
15-69 under Section 413.011 that requires the use of generic
16-1 pharmaceutical medications and clinically appropriate
16-2 over-the-counter alternatives to prescription medications unless
16-3 otherwise specified by the prescribing doctor, in accordance with
16-4 applicable state law.
16-5 (c) Except as otherwise provided by this subtitle, an [An]
16-6 insurance carrier may not require an employee to use pharmaceutical
16-7 services designated by the carrier.
16-8 (d) The commission shall adopt rules to allow an employee to
16-9 purchase over-the-counter alternatives to prescription medications
16-10 prescribed or ordered under Subsection (a) or (b) and to obtain
16-11 reimbursement from the insurance carrier for those medications.
16-12 SECTION 6.02. Section 413.011, Labor Code, is amended to
16-13 read as follows:
16-14 Sec. 413.011. FEE GUIDELINES; TREATMENT GUIDELINES [AND
16-15 MEDICAL POLICIES]. (a) The commission by rule shall adopt by
16-16 reference the reimbursement methodology and model used by the
16-17 Medicare system with minimal modifications to that reimbursement
16-18 methodology as necessary to meet occupational injury requirements
16-19 and to allow chiropractors to serve as treating doctors. This
16-20 section may not be interpreted in a manner inconsistent with state
16-21 laws relating to insurance equity regarding parity of payment or
16-22 fee reimbursement levels based on provider type, license,
16-23 discipline, or specialty. The commission shall calculate
16-24 conversion factors to set fees for services based on that
16-25 methodology and shall provide for reasonable fees for the
16-26 evaluation and management of care by treating doctors as required
16-27 by Section 408.025(c) and commission rules. The commission shall
16-28 adopt other Medicare requirements and related rules, including
16-29 coding compliance standards, to meet the standards for reporting
16-30 documentation and billing required by Section 413.053, and
16-31 guidelines relating to [establish medical policies and guidelines
16-32 relating to:]
16-33 [(1) fees charged or paid for medical services for
16-34 employees who suffer compensable injuries, including guidelines
16-35 relating to payment of fees for specific medical treatments or
16-36 services;]
16-37 [(2) use of medical services by employees who suffer
16-38 compensable injuries; and]
16-39 [(3)] fees charged or paid for providing expert
16-40 testimony relating to an issue arising under this subtitle.
16-41 (b) Guidelines for medical services fees must be fair and
16-42 reasonable and designed to ensure the quality of medical care and
16-43 to achieve effective medical cost control. The guidelines may not
16-44 provide for payment of a fee in excess of the fee charged for
16-45 similar treatment of an injured individual of an equivalent
16-46 standard of living and paid by that individual or by someone acting
16-47 on that individual's behalf. The commission shall consider the
16-48 increased security of payment afforded by this subtitle in
16-49 establishing the fee guidelines.
16-50 (c) The commission by rule may adopt treatment guidelines.
16-51 If adopted, treatment guidelines adopted must be nationally
16-52 recognized, scientifically valid, and outcome-based and designed to
16-53 reduce excessive or inappropriate medical care while safeguarding
16-54 necessary medical care [Medical policies adopted by the commission
16-55 must be consistent with Sections 413.013, 413.020, 413.052, and
16-56 413.053].
16-57 (d) The commission by rule may [shall] establish medical
16-58 policies relating to necessary treatments for injuries.
16-59 (e) Any medical [Medical] policies or guidelines adopted by
16-60 the commission must [shall] be:
16-61 (1) designed to ensure the quality of medical care and
16-62 to achieve effective medical cost control;
16-63 (2) designed to enhance a timely and appropriate
16-64 return to work; and
16-65 (3) consistent with Sections 413.013, 413.020,
16-66 413.052, and 413.053.
16-67 SECTION 6.03. Section 413.031, Labor Code, is amended to read
16-68 as follows:
16-69 Sec. 413.031. MEDICAL DISPUTE RESOLUTION. (a) A party,
17-1 including a health care provider or claimant, is entitled to a
17-2 review of a medical service provided or for which authorization of
17-3 payment is sought if that party [a health care provider] is:
17-4 (1) denied payment or paid a reduced amount for the
17-5 medical service rendered;
17-6 (2) denied authorization for the payment for the
17-7 service requested or performed if authorization is required or
17-8 allowed by this subtitle or [the medical policies of the]
17-9 commission rules; [or]
17-10 (3) ordered by the commission [division] to refund a
17-11 payment received; or
17-12 (4) ordered to make a payment that was refused or
17-13 reduced for a medical service rendered.
17-14 (b) A health care provider who submits a charge in excess of
17-15 the fee guidelines or treatment policies is entitled to a review of
17-16 the medical service to determine if reasonable medical
17-17 justification exists for the deviation.
17-18 (c) In resolving disputes over the amount of payment due for
17-19 services determined to be medically necessary and appropriate for
17-20 treatment of a compensable injury, the role of the commission is to
17-21 adjudicate the correct payment given the relevant statutory
17-22 provisions and commission rules. The commission shall publish on
17-23 its Internet website its medical dispute decisions, including
17-24 decisions of independent review organizations, and any subsequent
17-25 decisions by the State Office of Administrative Hearings. Before
17-26 publication, the commission shall redact only that information
17-27 necessary to prevent identification of the injured worker.
17-28 (d) A review of the medical necessity of a health care
17-29 [medical] service requiring preauthorization under Section 413.014
17-30 or commission rules under that [this] section shall be conducted by
17-31 an independent review organization under Article 21.58C, Insurance
17-32 Code, in the same manner as reviews of utilization review decisions
17-33 by health maintenance organizations. It is a defense for the
17-34 insurance carrier if the carrier timely complies with the decision
17-35 of the independent review organization. The commission by rule
17-36 shall specify the appropriate dispute resolution process for
17-37 disputes in which a claimant has paid for medical services and is
17-38 seeking reimbursement [provided by a health care provider
17-39 professional review organization if requested by the health care
17-40 practitioner or if ordered by the commission].
17-41 (e) Except as provided by Subsection (d), a review of the
17-42 medical necessity of a health care service provided under this
17-43 chapter or Chapter 408 shall be conducted by an independent review
17-44 organization under Article 21.58C, Insurance Code, in the same
17-45 manner as reviews of utilization review decisions by health
17-46 maintenance organizations. It is a defense for the insurance
17-47 carrier if the carrier timely complies with the decision of the
17-48 independent review organization.
17-49 (f) The insurance carrier shall pay the cost of the review
17-50 if the dispute arises in connection with a request for health care
17-51 services that require preauthorization under Section 413.014 or
17-52 commission rules under that section.
17-53 (g) Except as provided by Subsection (f), the cost of the
17-54 review shall be paid by the nonprevailing party.
17-55 (h) Notwithstanding Subsections (f) and (g), an employee may
17-56 not be required to pay any portion of the cost of a review.
17-57 (i) [(d)] A party to a medical dispute that remains
17-58 unresolved after a review of the medical service under this section
17-59 is entitled to a hearing. The hearing shall be conducted by the
17-60 State Office of Administrative Hearings within 90 days of receipt
17-61 of a request for a hearing in the manner provided for a contested
17-62 case under Chapter 2001, Government Code (the administrative
17-63 procedure law).
17-64 SECTION 6.04. Section 413.041, Labor Code, is amended to read
17-65 as follows:
17-66 Sec. 413.041. DISCLOSURE. (a) Each doctor shall disclose to
17-67 the commission the identity of any health care provider in which
17-68 the doctor, or the health care provider that employs the doctor,
17-69 has a financial interest. The doctor shall make the disclosure in
18-1 the manner provided by commission rule.
18-2 (b) The commission shall require by rule that a doctor
18-3 disclose financial interests in other health care providers as a
18-4 condition of registration for the approved doctor list established
18-5 under Section 408.023, and shall define "financial interest" for
18-6 purposes of this subsection as provided by analogous federal
18-7 regulations. The commission by rule shall adopt the federal
18-8 standards that prohibit the payment or acceptance of payment in
18-9 exchange for health care referrals.
18-10 (c) A doctor or health care provider that fails to comply
18-11 with this section is subject to penalties and sanctions as provided
18-12 by this subtitle, including forfeiture of the right to
18-13 reimbursement for services rendered during the period of
18-14 noncompliance.
18-15 (d) The commission shall publish all final disclosure
18-16 enforcement orders issued under this section on the commission's
18-17 Internet website [A health care provider who refers a workers'
18-18 compensation claimant to another health care provider in which the
18-19 referring provider has more than a five percent financial interest
18-20 shall file an annual disclosure statement with the commission as
18-21 provided by commission rules and shall disclose the interest to the
18-22 insurance carrier at the time of the referral. The referring
18-23 provider shall specify the degree of the financial interest and
18-24 shall provide other information as required by commission rules].
18-25 SECTION 6.05. Section 415.0035, Labor Code, is amended by
18-26 adding Subsections (e) and (f) to read as follows:
18-27 (e) An insurance carrier or health care provider commits an
18-28 administrative violation if that person violates this subtitle or a
18-29 rule, order, or decision of the commission.
18-30 (f) A subsequent administrative violation under this
18-31 section, after prior notice to the insurance carrier or health care
18-32 provider of noncompliance, is subject to penalties as provided by
18-33 Section 415.021. Prior notice under this subsection is not required
18-34 if the violation was committed wilfully or intentionally, or if the
18-35 violation was of a decision or order of the commission.
18-36 SECTION 6.06. Section 415.021(a), Labor Code, is amended to
18-37 read as follows:
18-38 (a) The commission may assess an administrative penalty
18-39 against a person who commits an administrative violation.
18-40 Notwithstanding Subsection (c), the commission by rule shall adopt
18-41 a schedule of specific monetary administrative penalties for
18-42 specific violations under this subtitle.
18-43 SECTION 6.07. Section 415.023, Labor Code, is amended to read
18-44 as follows:
18-45 Sec. 415.023. COMMISSION OF WRONGFUL ACT AS MATTER OF
18-46 PRACTICE; ADMINISTRATIVE VIOLATION. (a) A person who commits an
18-47 administrative violation under Section 415.001, 415.002, [or]
18-48 415.003, or 415.0035 as a matter of practice is subject to an
18-49 applicable rule adopted under Subsection (b) in addition to the
18-50 penalty assessed for the violation.
18-51 (b) The commission may adopt rules providing for:
18-52 (1) a reduction or denial of fees;
18-53 (2) public or private reprimand by the commission;
18-54 (3) suspension from practice before the commission;
18-55 [or]
18-56 (4) restriction, suspension, or revocation of the
18-57 right to receive reimbursement under this subtitle; or
18-58 (5) referral and petition to the appropriate licensing
18-59 authority for appropriate disciplinary action, including the
18-60 restriction, suspension, or revocation of the person's license.
18-61 SECTION 6.08. (a) The Texas Workers' Compensation Commission
18-62 shall adopt the rules and fee guidelines under Section 413.011,
18-63 Labor Code, as amended by this article, not later than May 1, 2002.
18-64 Unless subsequently readopted by the commission, the treatment
18-65 guidelines adopted under Chapter 413, Labor Code, in effect
18-66 immediately before September 1, 2001, are not applicable to health
18-67 care services provided on or after January 1, 2002.
18-68 (b) The Texas Workers' Compensation Commission shall adopt
18-69 rules as required by Sections 408.028 and 413.041, Labor Code, as
19-1 amended by this article, not later than June 1, 2002.
19-2 (c) The change in law made by this article by the amendment
19-3 of Section 413.031, Labor Code, applies only to a request for a
19-4 review of medical services received on or after January 1, 2002. A
19-5 request received before that date is covered by the law in effect
19-6 immediately before September 1, 2001, and that law is continued in
19-7 effect for that purpose.
19-8 (d) Section 413.041(c), Labor Code, as added by this
19-9 article, applies only to a failure to comply with Section 413.041
19-10 that occurs after June 1, 2002.
19-11 (e) Section 415.0035, Labor Code, as amended by this
19-12 article, applies only to a violation occurring on or after
19-13 September 1, 2002.
19-14 ARTICLE 7. SUNSET REVIEW; AUDIT
19-15 SECTION 7.01. Section 401.002, Labor Code, is amended to
19-16 read as follows:
19-17 Sec. 401.002. APPLICATION OF SUNSET ACT. The Texas Workers'
19-18 Compensation Commission is subject to Chapter 325, Government Code
19-19 (Texas Sunset Act). Unless continued in existence as provided by
19-20 that chapter, the commission is abolished September 1, 2005 [2007].
19-21 SECTION 7.02. Subchapter A, Chapter 401, Labor Code, is
19-22 amended by adding Section 401.003 to read as follows:
19-23 Sec. 401.003. ACTIVITIES OF THE STATE AUDITOR. (a) The
19-24 commission is subject to audit by the state auditor in accordance
19-25 with Chapter 321, Government Code. The state auditor may audit the
19-26 commission's:
19-27 (1) structure and internal controls;
19-28 (2) level and quality of service provided to
19-29 employers, injured employees, insurance carriers, self-insured
19-30 governmental entities, and other participants;
19-31 (3) implementation of statutory mandates;
19-32 (4) employee turnover;
19-33 (5) information management systems, including public
19-34 access to nonconfidential information;
19-35 (6) adoption and implementation of administrative
19-36 rules; and
19-37 (7) assessment of administrative violations and the
19-38 penalties for those violations.
19-39 (b) Nothing in this section limits the authority of the
19-40 state auditor under Chapter 321, Government Code.
19-41 ARTICLE 8. ATTORNEY'S FEES
19-42 SECTION 8.01. Section 408.221, Labor Code, is amended to read
19-43 as follows:
19-44 Sec. 408.221. ATTORNEY'S FEES PAID TO CLAIMANT'S COUNSEL.
19-45 (a) An attorney's fee, including a contingency fee, for
19-46 representing a claimant before the commission or court under this
19-47 subtitle must be approved by the commission or court.
19-48 (b) Except as otherwise provided, an attorney's fee under
19-49 this section is based on the attorney's time and expenses according
19-50 to written evidence presented to the commission or court. Except as
19-51 provided by Subsection (c) or Section 408.147(c), the attorney's
19-52 fee shall be paid from the claimant's recovery.
19-53 (c) An insurance carrier that seeks judicial review under
19-54 Subchapter G, Chapter 410, of a final decision of a commission
19-55 appeals panel regarding compensability or eligibility for, or the
19-56 amount of, income or death benefits is liable for reasonable and
19-57 necessary attorney's fees incurred by the claimant as a result of
19-58 the insurance carrier's appeal if the claimant prevails on an issue
19-59 on which judicial review is sought by the insurance carrier in
19-60 accordance with the limitation of issues contained in Section
19-61 410.302. This subsection does not apply to attorney's fees for
19-62 which an insurance carrier may be liable under Section 408.147. An
19-63 award of attorney's fees under this subsection is not subject to
19-64 commission rules adopted under Subsection (f). This subsection
19-65 expires September 1, 2005.
19-66 (d) In approving an attorney's fee under this section, the
19-67 commission or court shall consider:
19-68 (1) the time and labor required;
19-69 (2) the novelty and difficulty of the questions
20-1 involved;
20-2 (3) the skill required to perform the legal services
20-3 properly;
20-4 (4) the fee customarily charged in the locality for
20-5 similar legal services;
20-6 (5) the amount involved in the controversy;
20-7 (6) the benefits to the claimant that the attorney is
20-8 responsible for securing; and
20-9 (7) the experience and ability of the attorney
20-10 performing the services.
20-11 (e) [(d)] The commission by rule or the court may provide
20-12 for the commutation of an attorney's fee, except that the
20-13 attorney's fee shall be paid in periodic payments in a claim
20-14 involving death benefits if the only dispute is as to the proper
20-15 beneficiary or beneficiaries.
20-16 (f) [(e)] The commission by rule shall provide guidelines
20-17 for maximum attorney's fees for specific services in accordance
20-18 with this section.
20-19 (g) [(f)] An attorney's fee may not be allowed in a case
20-20 involving a fatal injury or lifetime income benefit if the
20-21 insurance carrier admits liability on all issues and tenders
20-22 payment of maximum benefits in writing under this subtitle while
20-23 the claim is pending before the commission.
20-24 (h) [(g)] An attorney's fee shall be paid to the attorney by
20-25 separate draft.
20-26 (i) [(h)] Except as provided by Subsection (c) or Section
20-27 408.147(c), an attorney's fee may not exceed 25 percent of the
20-28 claimant's recovery.
20-29 SECTION 8.02. Section 408.147(c), Labor Code, is amended to
20-30 read as follows:
20-31 (c) If an insurance carrier disputes a commission
20-32 determination that an employee is entitled to supplemental income
20-33 benefits or the amount of supplemental income benefits due and the
20-34 employee prevails on any disputed issue, the insurance carrier is
20-35 liable for reasonable and necessary attorney's fees incurred by the
20-36 employee as a result of the insurance carrier's dispute and for
20-37 supplemental income benefits accrued but not paid and interest on
20-38 that amount, according to Section 408.064. Attorney's fees awarded
20-39 under this subsection are not subject to Sections 408.221(b), (f)
20-40 [(e)], and (i) [(h)].
20-41 SECTION 8.03. Section 408.222(b), Labor Code, is amended to
20-42 read as follows:
20-43 (b) In determining whether a fee is reasonable under this
20-44 section, the commission or court shall consider issues analogous to
20-45 those listed under Section 408.221(d) [408.221(c)]. The defense
20-46 counsel shall present written evidence to the commission or court
20-47 relating to:
20-48 (1) the time spent and expenses incurred in defending
20-49 the case; and
20-50 (2) other evidence considered necessary by the
20-51 commission or court in making a determination under this section.
20-52 ARTICLE 9. LIFETIME INCOME BENEFITS
20-53 SECTION 9.01. Section 408.161(a), Labor Code, is amended to
20-54 read as follows:
20-55 (a) Lifetime income benefits are paid until the death of the
20-56 employee for:
20-57 (1) total and permanent loss of sight in both eyes;
20-58 (2) loss of both feet at or above the ankle;
20-59 (3) loss of both hands at or above the wrist;
20-60 (4) loss of one foot at or above the ankle and the
20-61 loss of one hand at or above the wrist;
20-62 (5) an injury to the spine that results in permanent
20-63 and complete paralysis of both arms, both legs, or one arm and one
20-64 leg; [or]
20-65 (6) a physically traumatic injury to the brain
20-66 resulting in incurable insanity or imbecility; or
20-67 (7) burns that result in at least 40 percent of the
20-68 body being subject to debriding or grafting, or third degree burns
20-69 covering the majority of either both hands or one hand and the
21-1 head.
21-2 ARTICLE 10. MULTIPLE EMPLOYMENT; SUBSEQUENT INJURY FUND
21-3 SECTION 10.01. Section 403.006, Labor Code, is amended by
21-4 amending Subsection (b) and adding Subsection (d) to read as
21-5 follows:
21-6 (b) The subsequent injury fund is liable for:
21-7 (1) the payment of compensation as provided by Section
21-8 408.162;
21-9 (2) reimbursement of insurance carrier claims of
21-10 overpayment of benefits based on interlocutory orders of the
21-11 commission as provided by this subtitle, consistent with the
21-12 priorities established by rule by the commission;
21-13 (3) reimbursement of insurance carrier claims as
21-14 provided by Sections 408.042 and 413.0141, consistent with the
21-15 priorities established by rule by the commission; and
21-16 (4) the payment of an assessment of feasibility and
21-17 the development of regional networks established under Section
21-18 408.0221.
21-19 (d) Based on an actuarial assessment of the funding
21-20 available under Section 403.007(e), the commission may make partial
21-21 payment of insurance carrier claims under Subsection (b)(3).
21-22 SECTION 10.02. Section 403.007, Labor Code, is amended by
21-23 adding Subsections (e) and (f) to read as follows:
21-24 (e) If the commission determines that the funding under
21-25 Subsection (a) is not adequate to meet the expected obligations of
21-26 the subsequent injury fund established under Section 403.006, the
21-27 fund shall be supplemented by the collection of a maintenance tax
21-28 paid by insurance carriers, other than a governmental entity, as
21-29 provided by Sections 403.002 and 403.003. The rate of assessment
21-30 must be adequate to provide 120 percent of the projected unfunded
21-31 liabilities of the fund for the next biennium as certified by an
21-32 independent actuary or financial advisor.
21-33 (f) The commission's actuary or financial advisor shall
21-34 report biannually to the Research and Oversight Council on Workers'
21-35 Compensation on the financial condition and projected assets and
21-36 liabilities of the subsequent injury fund. The commission shall
21-37 make the reports available to members of the legislature and the
21-38 public. The commission may purchase annuities to provide for
21-39 payments due to claimants under this subtitle if the commission
21-40 determines that the purchase of annuities is financially prudent
21-41 for the administration of the fund.
21-42 SECTION 10.03. Section 408.042, Labor Code, is amended to
21-43 read as follows:
21-44 Sec. 408.042. AVERAGE WEEKLY WAGE FOR PART-TIME EMPLOYEE OR
21-45 EMPLOYEE WITH MULTIPLE EMPLOYMENT. (a) The average weekly wage of
21-46 a part-time employee who limits the employee's work to less than
21-47 [full-time hours or] a full-time workweek as a regular course of
21-48 that employee's conduct is computed as provided by Section 408.041.
21-49 (b) For part-time employees not covered by Subsection (a),
21-50 the average weekly wage:
21-51 (1) for determining temporary income benefits is
21-52 computed as provided by Section 408.041; and
21-53 (2) for determining impairment income benefits,
21-54 supplemental income benefits, lifetime income benefits, and death
21-55 benefits is computed as follows:
21-56 (A) if the employee has worked for the employer
21-57 for at least the 13 weeks immediately preceding the date of the
21-58 injury, the average weekly wage is computed by dividing the sum of
21-59 the wages paid in the 13 consecutive weeks immediately preceding
21-60 the date of the injury by 13 and adjusting that amount to the
21-61 weekly wage level the employee would have attained by working a
21-62 full-time workweek at the same rate of pay; or
21-63 (B) if the employee has worked for the employer
21-64 for less than 13 weeks immediately preceding the date of the
21-65 injury, the average weekly wage is equal to:
21-66 (i) the weekly wage that the employer pays
21-67 a similar employee for similar services based on a [in] full-time
21-68 workweek [employment]; or
21-69 (ii) if a similar employee does not exist,
22-1 the usual wage paid in that vicinity for the same or similar
22-2 services based on a [provided for compensation in] full-time
22-3 workweek [employment].
22-4 (c) For employees with multiple employment, the average
22-5 weekly wage for determining temporary income benefits, impairment
22-6 income benefits, supplemental income benefits, lifetime income
22-7 benefits, and death benefits, is computed as follows:
22-8 (1) the average weekly wage for an employee with
22-9 multiple employment is equal to the sum of the average weekly wages
22-10 computed under Subdivisions (2) and (3);
22-11 (2) for each of the employers for whom the employee
22-12 has worked for at least the 13 weeks immediately preceding the date
22-13 of injury, the average weekly wage is equal to the sum of the wages
22-14 paid by that employer to the employee in the 13 weeks immediately
22-15 preceding the injury divided by 13;
22-16 (3) for each of the employers for whom the employee
22-17 has worked for less than the 13 weeks immediately preceding the
22-18 date of the injury, the average weekly wage is equal to:
22-19 (A) the weekly wage that employer pays similar
22-20 employees for similar services; or
22-21 (B) if a similar employee does not exist, the
22-22 usual weekly wage paid in that vicinity for the same or similar
22-23 services; and
22-24 (4) the average weekly wage of an employee with
22-25 multiple employment who limits the employee's work to less than a
22-26 full-time workweek, but does not do so as a regular course of that
22-27 employee's conduct, is adjusted to the weekly wage level the
22-28 employee would have attained by working a full-time workweek at the
22-29 employee's average rate of pay.
22-30 (d) The commission shall:
22-31 (1) prescribe a form to collect information regarding
22-32 the wages of employees with multiple employment; and
22-33 (2) by rule, determine the manner by which wage
22-34 information is collected and distributed to implement this section.
22-35 (e) For an employee with multiple employment, only the
22-36 employee's wages that are reportable for federal income tax
22-37 purposes may be considered. The employee shall document and verify
22-38 wage payments subject to this section.
22-39 (f) If the commission determines that computing the average
22-40 weekly wage for an employee as provided by Subsection (c) is
22-41 impractical or unreasonable, the commission shall set the average
22-42 weekly wage in a manner that more fairly reflects the employee's
22-43 average weekly wage and that is fair and just to both parties or is
22-44 in the manner agreed to by the parties. The commission by rule may
22-45 define methods to determine a fair and just average weekly wage
22-46 consistent with this section.
22-47 (g) An insurance carrier is entitled to apply for and
22-48 receive reimbursement at least annually from the subsequent injury
22-49 fund for the amount of income benefits paid to a worker under this
22-50 section that are based on employment other than the employment
22-51 during which the compensable injury occurred. The commission may
22-52 adopt rules that govern the documentation, application process, and
22-53 other administrative requirements necessary to implement this
22-54 subsection.
22-55 (h) In this section:
22-56 (1) "Employee with multiple employment" means an
22-57 employee who has more than one employer.
22-58 (2) "Full-time workweek" means a 40-hour workweek.
22-59 (3) "Part-time[, "part-time] employee" means an
22-60 employee who, at the time of the injury, was working less than a
22-61 [the] full-time [hours or full-time] workweek for the employer for
22-62 whom the employee was working when the compensable injury occurred
22-63 [of similar employees in the same employment, whether for the same
22-64 or a different employer].
22-65 ARTICLE 11. INSURANCE CARRIER INFORMATION
22-66 SECTION 11.01. Section 410.164, Labor Code, is amended by
22-67 adding Subsection (c) to read as follows:
22-68 (c) At each contested case hearing, as applicable, the
22-69 insurance carrier shall file with the hearing officer and shall
23-1 deliver to the claimant a single document stating the true
23-2 corporate name of the insurance carrier and the name and address of
23-3 the insurance carrier's registered agent for service of process.
23-4 The document is part of the record of the contested case hearing.
23-5 SECTION 11.02. Section 410.204, Labor Code, is amended by
23-6 adding Subsection (d) to read as follows:
23-7 (d) Each final decision of the appeals panel shall conclude
23-8 with a separate paragraph stating: "The true corporate name of the
23-9 insurance carrier is (NAME IN BOLD PRINT) and the name and address
23-10 of its registered agent for service of process is (NAME AND ADDRESS
23-11 IN BOLD PRINT)."
23-12 SECTION 11.03. This article applies only to a workers'
23-13 compensation hearing that is conducted on or after the effective
23-14 date of this Act. A hearing that is conducted before that date is
23-15 governed by the law in effect on the date the hearing was
23-16 conducted, and the former law is continued in effect for that
23-17 purpose.
23-18 ARTICLE 12. APPEAL REQUIREMENTS
23-19 SECTION 12.01. Section 410.202, Labor Code, is amended by
23-20 adding Subsection (d) to read as follows:
23-21 (d) Saturdays and Sundays and holidays listed in Section
23-22 662.003, Government Code, are not included in the computation of
23-23 the time in which a request for an appeal under Subsection (a) or a
23-24 response under Subsection (b) must be filed.
23-25 SECTION 12.02. The change in law made by this article applies
23-26 only to an appeal in a workers' compensation proceeding filed on or
23-27 after the effective date of this Act. An appeal filed before the
23-28 effective date of this Act is governed by the law in effect on the
23-29 date the appeal was filed, and the former law is continued in
23-30 effect for that purpose.
23-31 ARTICLE 13. STUDY ON DRUG-FREE WORKPLACE REQUIREMENTS
23-32 SECTION 13.01. Subchapter G, Chapter 411, Labor Code, is
23-33 amended by adding Section 411.093 to read as follows:
23-34 Sec. 411.093. STUDY ON DRUG-FREE WORKPLACE; REPORT. (a) The
23-35 commission shall study:
23-36 (1) the implementation and development of drug-free
23-37 workplace policies under this subchapter;
23-38 (2) the use of drug-free workplace requirements
23-39 adopted by other jurisdictions to reduce the adverse impact on the
23-40 operation of workers' compensation insurance systems of drug abuse
23-41 and its effects in the workplace; and
23-42 (3) any other aspects of the effect of drug abuse on
23-43 the operation of the workers' compensation insurance system in this
23-44 state as considered appropriate by the commission or the Research
23-45 and Oversight Council on Workers' Compensation.
23-46 (b) The commission shall report not later than February 1,
23-47 2003, to the legislature and the Research and Oversight Council on
23-48 Workers' Compensation regarding the study conducted under this
23-49 section. The report must include:
23-50 (1) any commission recommendations for legislative
23-51 changes in the workers' compensation laws as regards the
23-52 implementation of a drug-free workplace requirement; and
23-53 (2) an analysis of the possible effects of the
23-54 adoption of a workers' compensation insurance premium discount
23-55 program for employers who maintain a drug-free workplace on the
23-56 operation of the workers' compensation insurance system in this
23-57 state.
23-58 (c) On the request of the commission, the Texas Department
23-59 of Insurance shall assist the commission in the performance of its
23-60 duties under this section.
23-61 (d) This section expires September 1, 2003.
23-62 ARTICLE 14. GENERAL TRANSITION; EFFECTIVE DATE
23-63 SECTION 14.01. Except as otherwise provided by this Act, this
23-64 Act applies only to a claim for workers' compensation benefits
23-65 based on a compensable injury that occurs on or after the effective
23-66 date of this Act. A claim based on a compensable injury that
23-67 occurs before that date is governed by the law in effect on the
23-68 date that the compensable injury occurred, and the former law is
23-69 continued in effect for that purpose.
24-1 SECTION 14.02. Except as expressly provided, this Act takes
24-2 effect September 1, 2001.
24-3 * * * * *