1-1 By: Duncan S.B. No. 851
1-2 (In the Senate - Filed February 22, 2001; February 25, 2001,
1-3 read first time and referred to Committee on Business and Commerce;
1-4 April 24, 2001, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 5, Nays 2; April 24, 2001,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 851 By: Fraser
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to changing the name of the Texas Workers' Compensation
1-11 Commission to the Texas Department of Workers' Compensation and to
1-12 the powers and duties of the governing authority of that
1-13 department.
1-14 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-15 ARTICLE 1. ORGANIZATION OF DEPARTMENT
1-16 SECTION 1.001. Subchapter A, Chapter 402, Labor Code, is
1-17 amended to read as follows:
1-18 SUBCHAPTER A. ORGANIZATION
1-19 Sec. 402.001. DUTIES OF DEPARTMENT. In addition to the
1-20 other duties required of the Texas Department of Workers'
1-21 Compensation, the department shall:
1-22 (1) regulate the business of workers' compensation in
1-23 this state; and
1-24 (2) ensure that this subtitle and other laws granting
1-25 jurisdiction to or applicable to the department or the commissioner
1-26 are executed.
1-27 Sec. 402.002. COMPOSITION OF DEPARTMENT. The department is
1-28 composed of the commissioner and other officers and employees
1-29 required to efficiently implement:
1-30 (1) this subtitle; and
1-31 (2) other laws granting jurisdiction to or applicable
1-32 to the department or the commissioner.
1-33 Sec. 402.003. CHIEF EXECUTIVE. (a) The commissioner is the
1-34 department's chief executive and administrative officer. The
1-35 commissioner shall administer and enforce this subtitle and other
1-36 laws granting jurisdiction to or applicable to the department or
1-37 the commissioner.
1-38 (b) The commissioner has the powers and duties vested in the
1-39 department by this subtitle and other laws granting jurisdiction to
1-40 or applicable to the department or the commissioner.
1-41 (c) The commissioner may:
1-42 (1) investigate misconduct;
1-43 (2) hold hearings;
1-44 (3) issue subpoenas to compel the attendance of
1-45 witnesses and the production of documents;
1-46 (4) administer oaths;
1-47 (5) take testimony directly or by deposition or
1-48 interrogatory;
1-49 (6) assess and enforce penalties established under
1-50 this subtitle;
1-51 (7) enter appropriate orders as authorized by this
1-52 subtitle;
1-53 (8) correct clerical errors in the entry of orders;
1-54 (9) institute an action in the department's name to
1-55 enjoin the violation of this subtitle;
1-56 (10) initiate an action under Section 410.254 to
1-57 intervene in a judicial proceeding;
1-58 (11) prescribe the form, manner, and procedure for
1-59 transmission of information to the department; and
1-60 (12) delegate all powers and duties as necessary.
1-61 (d) The commissioner is the agent for service of process on
1-62 out-of-state employers.
1-63 Sec. 402.004. APPOINTMENT; TERM. (a) The governor, with
1-64 the advice and consent of the senate, shall appoint the
2-1 commissioner. The commissioner serves a two-year term that expires
2-2 on February 1 of each odd-numbered year.
2-3 (b) The governor shall appoint the commissioner without
2-4 regard to the race, color, disability, sex, religion, age, or
2-5 national origin of the appointee.
2-6 Sec. 402.005. QUALIFICATIONS. (a) The commissioner must:
2-7 (1) be a competent and experienced administrator;
2-8 (2) be well informed and qualified in the field of
2-9 workers' compensation; and
2-10 (3) have at least 10 years of experience as an
2-11 executive in the administration of business or government or as a
2-12 practicing attorney or certified public accountant, with at least
2-13 five years of that experience in the field of insurance, with
2-14 preference for experience in the field of workers' compensation
2-15 insurance.
2-16 (b) A person who is a former member or former executive
2-17 director of the Texas Workers' Compensation Commission is not
2-18 eligible for appointment as commissioner under Section 402.004.
2-19 Sec. 402.006. INELIGIBILITY FOR PUBLIC OFFICE. The
2-20 commissioner is ineligible to be a candidate for a public elective
2-21 office in this state unless the commissioner has resigned and the
2-22 governor has accepted the resignation.
2-23 Sec. 402.007. BOND. Before taking office, the commissioner
2-24 must execute with a surety company licensed to do business in this
2-25 state a bond for $50,000 payable to this state and conditioned on
2-26 the faithful discharge of the commissioner's duties.
2-27 Sec. 402.008. COMPENSATION. The commissioner is entitled to
2-28 compensation as provided by the General Appropriations Act.
2-29 [MEMBERSHIP REQUIREMENTS. (a) The Texas Workers' Compensation
2-30 Commission is composed of six members appointed by the governor
2-31 with the advice and consent of the senate.]
2-32 [(b) Appointments to the commission shall be made without
2-33 regard to the race, color, disability, sex, religion, age, or
2-34 national origin of the appointee. Section 401.011(16) does not
2-35 apply to the use of the term "disability" in this subsection.]
2-36 [(c) Three members of the commission must be employers of
2-37 labor and three members of the commission must be wage earners. A
2-38 person is not eligible for appointment as a member of the
2-39 commission if the person provides services subject to regulation by
2-40 the commission or charges fees that are subject to regulation by
2-41 the commission.]
2-42 [(d) In making appointments to the commission, the governor
2-43 shall attempt to reflect the social, geographic, and economic
2-44 diversity of the state. To ensure balanced representation, the
2-45 governor may consider:]
2-46 [(1) the geographic location of a prospective
2-47 appointee's domicile;]
2-48 [(2) the prospective appointee's experience as an
2-49 employer or wage earner;]
2-50 [(3) the number of employees employed by a prospective
2-51 member who would represent employers; and]
2-52 [(4) the type of work performed by a prospective
2-53 member who would represent wage earners.]
2-54 [(e) The governor shall consider the factors listed in
2-55 Subsection (d) in appointing a member to fill a vacancy on the
2-56 commission.]
2-57 [(f) In making an appointment to the commission, the
2-58 governor shall consider recommendations made by groups that
2-59 represent employers or wage earners.]
2-60 [Sec. 402.0015. TRAINING PROGRAM FOR COMMISSION MEMBERS.
2-61 (a) Before a member of the commission may assume the member's
2-62 duties, the member must complete the training program established
2-63 under this section.]
2-64 [(b) A training program established under this section must
2-65 provide information to the member regarding:]
2-66 [(1) the enabling legislation that created the
2-67 commission;]
2-68 [(2) the programs operated by the commission;]
2-69 [(3) the role and functions of the commission;]
3-1 [(4) the rules of the commission, with an emphasis on
3-2 the rules that relate to disciplinary and investigatory authority;]
3-3 [(5) the current budget for the commission;]
3-4 [(6) the results of the most recent formal audit of
3-5 the commission;]
3-6 [(7) the requirements of:]
3-7 [(A) the open meetings law, Chapter 551,
3-8 Government Code;]
3-9 [(B) the open records law, Chapter 552,
3-10 Government Code; and]
3-11 [(C) the administrative procedure law, Chapter
3-12 2001, Government Code;]
3-13 [(8) the requirements of the conflict of interest laws
3-14 and other laws relating to public officials; and]
3-15 [(9) any applicable ethics policies adopted by the
3-16 commission or the Texas Ethics Commission.]
3-17 [Sec. 402.002. TERMS; VACANCY. (a) Members of the
3-18 commission hold office for staggered six-year terms, with the terms
3-19 of one member representing employers and one member representing
3-20 wage earners expiring on February 1 of each odd-numbered year.]
3-21 [(b) If a vacancy occurs during a term, the governor shall
3-22 fill the vacancy for the unexpired term. The replacement must be
3-23 from the group represented by the member being replaced.]
3-24 Sec. 402.009 [402.003]. EFFECT OF LOBBYING ACTIVITY. A
3-25 person may not serve as commissioner [a member of the commission]
3-26 or act as the general counsel to the department [commission] if the
3-27 person is required to register as a lobbyist under Chapter 305,
3-28 Government Code, because of the person's activities for
3-29 compensation on behalf of a profession that is regulated by or that
3-30 has fees regulated by the department [commission].
3-31 [Sec. 402.004. VOTING REQUIREMENTS. (a) The commission may
3-32 take action only by a majority vote of its membership.]
3-33 [(b) Decisions regarding the employment of an executive
3-34 director require the affirmative vote of at least two commissioners
3-35 representing employers and two commissioners representing wage
3-36 earners.]
3-37 Sec. 402.010. GROUNDS FOR REMOVAL. [402.005. REMOVAL OF
3-38 COMMISSION MEMBERS.] (a) It is a ground for removal from office
3-39 if the commissioner [the commission if a member]:
3-40 (1) does not have at the time of appointment the
3-41 qualifications required by Section 402.005 [for appointment to the
3-42 commission];
3-43 (2) does not maintain during service as commissioner
3-44 [on the commission] the qualifications required by Section 402.005
3-45 [for appointment to the commission];
3-46 (3) violates a prohibition established by Section
3-47 402.009 or 402.013 [402.003 or 402.012]; or
3-48 (4) cannot because of illness or incapacity discharge
3-49 the commissioner's [member's] duties for a substantial part of the
3-50 commissioner's term [for which the member is appointed; or]
3-51 [(5) is absent from more than half of the regularly
3-52 scheduled commission meetings that the member is eligible to attend
3-53 during a calendar year].
3-54 (b) The validity of an action of the commissioner or the
3-55 department [commission] is not affected by the fact that it is
3-56 taken when a ground for removal of the commissioner [a commission
3-57 member] exists.
3-58 [(c) If the executive director of the commission knows that
3-59 a potential ground for removal exists, the executive director shall
3-60 notify the chairman of the commission of the potential ground. The
3-61 chairman shall then notify the governor and the attorney general
3-62 that a potential ground for removal exists. If the potential
3-63 ground for removal involves the chairman, the executive director
3-64 shall notify the next highest officer of the commission, who shall
3-65 notify the governor and the attorney general that a potential
3-66 ground for removal exists.]
3-67 Sec. 402.011 [402.006]. PROHIBITED GIFTS; ADMINISTRATIVE
3-68 VIOLATION. (a) The commissioner [A member] or an employee of the
3-69 department [commission] may not accept a gift, gratuity, or
4-1 entertainment from a person having an interest in a matter or
4-2 proceeding pending before the department [commission].
4-3 (b) A violation of Subsection (a) is a Class A
4-4 administrative violation and constitutes a ground for removal from
4-5 office or termination of employment.
4-6 [Sec. 402.007. MEETINGS. The commission shall meet at least
4-7 once in each calendar quarter and may meet at other times at the
4-8 call of the chairman or as provided by the rules of the commission.]
4-9 [Sec. 402.008. CHAIRMAN. (a) The governor shall designate
4-10 a member of the commission as the chairman of the commission to
4-11 serve in that capacity for a two-year term expiring February 1 of
4-12 each odd-numbered year. The governor shall alternate the
4-13 chairmanship between the members who are employers and the members
4-14 who are wage earners.]
4-15 [(b) The chairman may vote on all matters before the
4-16 commission.]
4-17 [Sec. 402.009. LEAVE OF ABSENCE. (a) An employer may not
4-18 terminate the employment of an employee who is appointed as a
4-19 member of the commission because of the exercise by the employee of
4-20 duties required as a commission member.]
4-21 [(b) A member of the commission is entitled to a leave of
4-22 absence from employment for the time required to perform commission
4-23 duties. During the leave of absence, the member may not be
4-24 subjected to loss of time, vacation time, or other benefits of
4-25 employment, other than salary.]
4-26 Sec. 402.012 [402.010]. CIVIL LIABILITY OF COMMISSIONER
4-27 [MEMBER]. The commissioner [A member of the commission] is not
4-28 liable in a civil action for an act performed in good faith in the
4-29 execution of duties as commissioner [a commission member].
4-30 [Sec. 402.011. REIMBURSEMENT. (a) A member of the
4-31 commission is entitled to reimbursement for actual and necessary
4-32 expenses incurred in performing functions as a member of the
4-33 commission. Reimbursement under this subsection may not exceed a
4-34 limit established in the General Appropriations Act.]
4-35 [(b) A member is entitled to reimbursement for actual lost
4-36 wages or use of leave benefits, if any, for:]
4-37 [(1) attendance at commission meetings and hearings;]
4-38 [(2) preparation for a commission meeting, not to
4-39 exceed two days in each calendar quarter;]
4-40 [(3) attendance at a subcommittee meeting, not to
4-41 exceed one day each month;]
4-42 [(4) attendance by the chair or vice chair of the
4-43 commission at a legislative committee meeting if attendance is
4-44 requested by the committee chair; and]
4-45 [(5) attendance at a meeting by a member appointed to
4-46 the Research and Oversight Council on Workers' Compensation or the
4-47 Texas Certified Self-Insured Guaranty Association.]
4-48 [(c) Reimbursement under Subsection (b) may not exceed $100
4-49 a day and $5,000 a year.]
4-50 [(d) A member of the commission is entitled to reimbursement
4-51 for actual and necessary expenses for attendance at not more than
4-52 five seminars in a calendar year if:]
4-53 [(1) the member is invited as a representative of the
4-54 commission to participate in a program offered at the seminar; and]
4-55 [(2) the member's participation is approved by the
4-56 chair of the commission.]
4-57 Sec. 402.013 [402.012]. CONFLICT OF INTEREST. (a) An
4-58 officer, employee, or paid consultant of a Texas trade association
4-59 whose members provide services subject to regulation by the
4-60 department [commission] or provide services whose fees are subject
4-61 to regulation by the department [commission] may not be the
4-62 commissioner [a member of the commission] or an employee of the
4-63 department [commission] who is exempt from the state's position
4-64 classification plan or is compensated at or above the amount
4-65 prescribed by the General Appropriations Act for step 1, salary
4-66 group A17 [17], of the position classification salary schedule.
4-67 (b) On acceptance of appointment as commissioner [to the
4-68 commission], a commissioner [an appointee] who is an officer,
4-69 employee, or paid consultant of a Texas trade association described
5-1 by Subsection (a) must resign the position or terminate the
5-2 contract with the trade association.
5-3 (c) For the purposes of this section, "Texas trade
5-4 association" means a nonprofit, cooperative, and voluntarily joined
5-5 association of business or professional competitors in this state
5-6 designed to assist its members and its industry or profession in
5-7 dealing with mutual business or professional problems and in
5-8 promoting their common interest. The term does not include a labor
5-9 union or an employees' association.
5-10 SECTION 1.002. Subchapter C, Chapter 402, Labor Code, is
5-11 amended to read as follows:
5-12 SUBCHAPTER C. DEPARTMENT [EXECUTIVE DIRECTOR AND] PERSONNEL
5-13 Sec. 402.041. APPOINTMENTS. (a) Subject to the General
5-14 Appropriations Act or other law, the commissioner shall appoint
5-15 deputies, assistants, and other personnel as necessary to carry out
5-16 the powers and duties of the commissioner and the department under
5-17 this subtitle and other laws granting jurisdiction to or applicable
5-18 to the department or the commissioner.
5-19 (b) A person appointed under this section must have the
5-20 professional, administrative, and workers' compensation experience
5-21 necessary to qualify the person for the position to which the
5-22 person is appointed.
5-23 (c) A person appointed as an associate or deputy
5-24 commissioner or to hold an equivalent position must have at least
5-25 five years of the experience required for appointment as
5-26 commissioner under Section 402.005. At least two years of that
5-27 experience must be in work related to the position to be held.
5-28 Sec. 402.042. DIVISION OF RESPONSIBILITIES. The
5-29 commissioner shall develop and implement policies that clearly
5-30 define the respective responsibilities of the commissioner and the
5-31 staff of the department. [EXECUTIVE DIRECTOR. (a) The executive
5-32 director is the executive officer and administrative head of the
5-33 commission. The executive director exercises all rights, powers,
5-34 and duties imposed or conferred by law on the commission, except
5-35 for rulemaking and other rights, powers, and duties specifically
5-36 reserved under this subtitle to members of the commission.]
5-37 [(b) The executive director shall hire personnel as
5-38 necessary to administer this subtitle.]
5-39 [(c) The executive director serves at the pleasure of the
5-40 commission.]
5-41 [(d) The commission shall develop and implement policies
5-42 that clearly separate the policymaking responsibilities of the
5-43 commission and the management responsibilities of the executive
5-44 director and the staff of the commission.]
5-45 [Sec. 402.042. GENERAL POWERS AND DUTIES OF EXECUTIVE
5-46 DIRECTOR. (a) The executive director shall conduct the day-to-day
5-47 operations of the commission in accordance with policies
5-48 established by the commission and otherwise implement commission
5-49 policy.]
5-50 [(b) The executive director may:]
5-51 [(1) investigate misconduct;]
5-52 [(2) hold hearings;]
5-53 [(3) issue subpoenas to compel the attendance of
5-54 witnesses and the production of documents;]
5-55 [(4) administer oaths;]
5-56 [(5) take testimony directly or by deposition or
5-57 interrogatory;]
5-58 [(6) assess and enforce penalties established under
5-59 this subtitle;]
5-60 [(7) enter appropriate orders as authorized by this
5-61 subtitle;]
5-62 [(8) correct clerical errors in the entry of orders;]
5-63 [(9) institute an action in the commission's name to
5-64 enjoin the violation of this subtitle;]
5-65 [(10) initiate an action under Section 410.254 to
5-66 intervene in a judicial proceeding;]
5-67 [(11) prescribe the form, manner, and procedure for
5-68 transmission of information to the commission; and]
5-69 [(12) delegate all powers and duties as necessary.]
6-1 [(c) The executive director is the agent for service of
6-2 process on out-of-state employers.]
6-3 [Sec. 402.043. ADMINISTRATIVE ASSISTANTS. The executive
6-4 director shall employ and supervise:]
6-5 [(1) one person representing wage earners permanently
6-6 assigned to act as administrative assistant to the members of the
6-7 commission who represent wage earners; and]
6-8 [(2) one person representing employers permanently
6-9 assigned to act as administrative assistant to the members of the
6-10 commission who represent employers.]
6-11 Sec. 402.043 [402.044]. CAREER LADDER; ANNUAL PERFORMANCE
6-12 EVALUATIONS. (a) The commissioner [executive director] shall
6-13 develop an intra-agency career ladder program that addresses
6-14 opportunities for mobility and advancement for employees within the
6-15 department [commission]. The program shall require intra-agency
6-16 postings of all positions concurrently with any public posting.
6-17 (b) The commissioner [executive director] shall develop a
6-18 system of annual performance evaluations that are based on
6-19 documented employee performance. All merit pay for department
6-20 [commission] employees must be based on the system established
6-21 under this subsection.
6-22 Sec. 402.044 [402.045]. EQUAL EMPLOYMENT OPPORTUNITY POLICY
6-23 STATEMENT. (a) The commissioner [executive director] shall
6-24 prepare and maintain a written policy statement to ensure
6-25 implementation of a program of equal employment opportunity under
6-26 which all personnel transactions are made without regard to race,
6-27 color, disability, sex, religion, age, or national origin. The
6-28 policy statement must include:
6-29 (1) personnel policies, including policies related to
6-30 recruitment, evaluation, selection, appointment, training, and
6-31 promotion of personnel that are in compliance with the requirements
6-32 of Chapter 21;
6-33 (2) a comprehensive analysis of the department
6-34 [commission] work force that meets federal and state guidelines;
6-35 (3) procedures by which a determination can be made of
6-36 significant underuse in the department [commission] work force of
6-37 all persons for whom federal or state guidelines encourage a more
6-38 equitable balance; and
6-39 (4) reasonable methods to appropriately address those
6-40 areas of underuse.
6-41 (b) A policy statement prepared under this section must:
6-42 (1) cover an annual period;
6-43 (2) be updated annually;
6-44 (3) be reviewed by the Commission on Human Rights for
6-45 compliance with Subsection (a)(1); and
6-46 (4) be filed with the governor's office.
6-47 (c) The governor's office shall deliver a biennial report to
6-48 the legislature based on the information received under Subsection
6-49 (b). The report may be made separately or as part of other
6-50 biennial reports made to the legislature.
6-51 ARTICLE 2. CONFORMING AMENDMENTS WITHIN CHAPTER 402, LABOR CODE
6-52 SECTION 2.001. The heading to Chapter 402, Labor Code, is
6-53 amended to read as follows:
6-54 CHAPTER 402. TEXAS DEPARTMENT OF WORKERS' COMPENSATION
6-55 [COMMISSION]
6-56 SECTION 2.002. Section 402.021, Labor Code, is amended to
6-57 read as follows:
6-58 Sec. 402.021. DEPARTMENT [COMMISSION] DIVISIONS. (a) The
6-59 department [commission] shall have:
6-60 (1) a division of workers' health and safety;
6-61 (2) a division of medical review;
6-62 (3) a division of compliance and practices; and
6-63 (4) a division of hearings.
6-64 (b) In addition to the divisions listed by Subsection (a),
6-65 the commissioner [executive director, with the approval of the
6-66 commission,] may establish divisions within the department
6-67 [commission] for effective administration and performance of
6-68 department [commission] functions. The commissioner [executive
6-69 director] may allocate and reallocate functions among those [the]
7-1 divisions and those established under Subsection (a).
7-2 (c) The commissioner [executive director] shall appoint the
7-3 directors of the divisions of the department [commission]. The
7-4 directors serve at the pleasure of the commissioner [executive
7-5 director].
7-6 SECTION 2.003. Section 402.022, Labor Code, is amended to
7-7 read as follows:
7-8 Sec. 402.022. PUBLIC INTEREST INFORMATION. (a) The
7-9 department [executive director] shall prepare information of public
7-10 interest describing the functions of the department [commission]
7-11 and the procedures by which complaints are filed with and resolved
7-12 by the department [commission].
7-13 (b) The department [executive director] shall make the
7-14 information available to the public and appropriate state agencies.
7-15 SECTION 2.004. Section 402.023, Labor Code, is amended to
7-16 read as follows:
7-17 Sec. 402.023. COMPLAINT INFORMATION. (a) The department
7-18 [executive director] shall keep an information file about each
7-19 written complaint filed with the department [commission] that is
7-20 unrelated to a specific workers' compensation claim. The
7-21 information must include:
7-22 (1) the date the complaint is received;
7-23 (2) the name of the complainant;
7-24 (3) the subject matter of the complaint;
7-25 (4) a record of all persons contacted in relation to
7-26 the complaint;
7-27 (5) a summary of the results of the review or
7-28 investigation of the complaint; and
7-29 (6) for complaints for which the department
7-30 [commission] took no action, an explanation of the reason the
7-31 complaint was closed without action.
7-32 (b) For each written complaint that is unrelated to a
7-33 specific workers' compensation claim that the department
7-34 [commission] has authority to resolve, the department [executive
7-35 director] shall provide to the person filing the complaint and the
7-36 person about whom the complaint is made information about the
7-37 department's [commission's] policies and procedures relating to
7-38 complaint investigation and resolution. The department
7-39 [commission], at least quarterly and until final disposition of the
7-40 complaint, shall notify those persons about the status of the
7-41 complaint unless the notice would jeopardize an undercover
7-42 investigation.
7-43 SECTION 2.005. Section 402.024, Labor Code, is amended to
7-44 read as follows:
7-45 Sec. 402.024. PUBLIC PARTICIPATION. (a) The department
7-46 [commission] shall develop and implement policies that provide the
7-47 public with a reasonable opportunity to appear before the
7-48 department [commission] and to speak on issues under the general
7-49 jurisdiction of the department [commission].
7-50 (b) The department [commission] shall comply with federal
7-51 and state laws related to program and facility accessibility.
7-52 (c) In addition to compliance with Subsection (a), the
7-53 department [executive director] shall prepare and maintain a
7-54 written plan that describes how a person who does not speak English
7-55 may be provided reasonable access to the department's
7-56 [commission's] programs and services.
7-57 SECTION 2.006. Section 402.025, Labor Code, is amended to
7-58 read as follows:
7-59 Sec. 402.025. AUDIT. The financial transactions of the
7-60 department [commission] are subject to audit by the state auditor
7-61 in accordance with Chapter 321, Government Code.
7-62 SECTION 2.007. The heading to Subchapter D, Chapter 402,
7-63 Labor Code, is amended to read as follows:
7-64 SUBCHAPTER D. GENERAL POWERS AND DUTIES OF DEPARTMENT
7-65 [COMMISSION]
7-66 SECTION 2.008. Section 402.061, Labor Code, is amended to
7-67 read as follows:
7-68 Sec. 402.061. ADOPTION OF RULES. The commissioner
7-69 [commission] shall adopt rules as necessary for the implementation
8-1 and enforcement of this subtitle.
8-2 SECTION 2.009. Section 402.062, Labor Code, is amended to
8-3 read as follows:
8-4 Sec. 402.062. ACCEPTANCE OF GIFTS, GRANTS, AND DONATIONS.
8-5 (a) The commissioner [commission] may accept gifts, grants, or
8-6 donations as provided by rules adopted by the commissioner
8-7 [commission].
8-8 (b) Notwithstanding Chapter 575, Government Code, the
8-9 commissioner [commission] may accept a grant paid from the Texas
8-10 Workers' Compensation Insurance Fund established under Article
8-11 5.76-3, Insurance Code, to implement specific steps to control and
8-12 lower medical costs in the workers' compensation system and to
8-13 ensure the delivery of quality medical care. The department
8-14 [commission] must publish the name of the grantor and the purpose
8-15 and conditions of the grant in the Texas Register and provide for a
8-16 20-day public comment period before the department [commission] may
8-17 accept the grant. The commissioner [commission] shall acknowledge
8-18 acceptance of the grant at a public meeting. The minutes of the
8-19 public meeting must include the name of the grantor, a description
8-20 of the grant, and a general statement of the purposes for which the
8-21 grant will be used.
8-22 SECTION 2.010. Section 402.064, Labor Code, is amended to
8-23 read as follows:
8-24 Sec. 402.064. FEES. In addition to fees established by this
8-25 subtitle, the commissioner [commission] shall set reasonable fees
8-26 for services provided to persons requesting services from the
8-27 department [commission], including services provided under
8-28 Subchapter E.
8-29 SECTION 2.011. Section 402.065, Labor Code, is amended to
8-30 read as follows:
8-31 Sec. 402.065. EMPLOYMENT OF COUNSEL. The commissioner
8-32 [commission] may employ counsel to represent the department
8-33 [commission] in any legal action the department [commission] is
8-34 authorized to initiate.
8-35 SECTION 2.012. Section 402.066, Labor Code, is amended to
8-36 read as follows:
8-37 Sec. 402.066. RECOMMENDATIONS TO LEGISLATURE. (a) The
8-38 commissioner [commission] shall consider and recommend to the
8-39 legislature changes to this subtitle.
8-40 (b) The commissioner [commission] shall forward the
8-41 recommended changes to the legislature not later than December 1 of
8-42 each even-numbered year.
8-43 SECTION 2.013. Section 402.0665, Labor Code, is amended to
8-44 read as follows:
8-45 Sec. 402.0665. LEGISLATIVE OVERSIGHT. The legislature may
8-46 adopt requirements relating to legislative oversight of the
8-47 department [commission] and the workers' compensation system of
8-48 this state. The department [commission] shall comply with any
8-49 requirements adopted by the legislature under this section.
8-50 SECTION 2.014. Section 402.067, Labor Code, is amended to
8-51 read as follows:
8-52 Sec. 402.067. ADVISORY COMMITTEES. The commissioner
8-53 [commission] may appoint advisory committees as the commissioner
8-54 [it] considers necessary.
8-55 SECTION 2.015. Section 402.068, Labor Code, is amended to
8-56 read as follows:
8-57 Sec. 402.068. DELEGATION OF RIGHTS AND DUTIES. Except as
8-58 expressly provided by this subchapter, the commissioner
8-59 [commission] may not delegate rights and duties imposed on the
8-60 commissioner [it] by this subchapter.
8-61 SECTION 2.016. Section 402.069, Labor Code, is amended to
8-62 read as follows:
8-63 Sec. 402.069. QUALIFICATIONS AND STANDARDS OF CONDUCT
8-64 INFORMATION. The commissioner or the commissioner's designee
8-65 [executive director] shall provide to department [members of the
8-66 commission and commission] employees, as often as necessary,
8-67 information regarding their:
8-68 (1) qualifications for office or employment under this
8-69 subtitle; and
9-1 (2) responsibilities under applicable law relating to
9-2 standards of conduct for state [officers or] employees.
9-3 SECTION 2.017. Subsection (a), Section 402.070, Labor Code,
9-4 is amended to read as follows:
9-5 (a) The department [commission] shall prepare annually a
9-6 complete and detailed written report accounting for all funds
9-7 received and disbursed by the department [commission] during the
9-8 preceding fiscal year.
9-9 SECTION 2.018. Subsection (a), Section 402.071, Labor Code,
9-10 is amended to read as follows:
9-11 (a) The commissioner [commission] shall establish
9-12 qualifications for a representative and shall adopt rules
9-13 establishing procedures for authorization of representatives.
9-14 SECTION 2.019. Section 402.072, Labor Code, is amended to
9-15 read as follows:
9-16 Sec. 402.072. SANCTIONS. Only the commissioner [commission]
9-17 may impose:
9-18 (1) a sanction that deprives a person of the right to
9-19 practice before the department [commission] or of the right to
9-20 receive remuneration under this subtitle for a period exceeding 30
9-21 days; or
9-22 (2) another sanction suspending for more than 30 days
9-23 or revoking a license, certification, or permit required for
9-24 practice in the field of workers' compensation.
9-25 SECTION 2.020. Subsections (a) and (c), Section 402.073,
9-26 Labor Code, are amended to read as follows:
9-27 (a) The commissioner [commission] and the chief
9-28 administrative law judge of the State Office of Administrative
9-29 Hearings by rule shall adopt a memorandum of understanding
9-30 governing administrative procedure law hearings under this subtitle
9-31 conducted by the State Office of Administrative Hearings in the
9-32 manner provided for a contested case hearing under Chapter 2001,
9-33 Government Code (the administrative procedure law).
9-34 (c) In a case in which a hearing is conducted in conjunction
9-35 with Section 402.072, 407.046, or 408.023, and in other cases under
9-36 this subtitle that are not subject to Subsection (b), the
9-37 administrative law judge who conducts the hearing for the State
9-38 Office of Administrative Hearings shall propose a decision to the
9-39 commissioner [commission] for final consideration and decision by
9-40 the commissioner [commission].
9-41 SECTION 2.021. Section 402.081, Labor Code, is amended to
9-42 read as follows:
9-43 Sec. 402.081. DEPARTMENT [COMMISSION] RECORDS. (a) The
9-44 commissioner [executive director] is the custodian of the
9-45 department's [commission's] records and shall perform the duties of
9-46 a custodian required by law, including providing copies and the
9-47 certification of records.
9-48 (b) The department [executive director] may destroy a record
9-49 maintained by the department [commission] pertaining to an injury
9-50 after the 50th anniversary of the date of the injury to which the
9-51 record refers unless benefits are being paid on the claim on that
9-52 date.
9-53 (c) A record maintained by the department [commission] may
9-54 be preserved in any format permitted by Chapter 441, Government
9-55 Code, and rules adopted by the Texas State Library and Archives
9-56 Commission under that chapter.
9-57 (d) The department [commission] may charge a reasonable fee
9-58 for making available for inspection any of its information that
9-59 contains confidential information that must be redacted before the
9-60 information is made available. However, when a request for
9-61 information is for the inspection of 10 or fewer pages, and a copy
9-62 of the information is not requested, the department [commission]
9-63 may charge only the cost of making a copy of the page from which
9-64 confidential information must be redacted. The fee for access to
9-65 information under Chapter 552, Government Code, shall be in accord
9-66 with the rules of the General Services Commission that prescribe
9-67 the method for computing the charge for copies under that chapter.
9-68 SECTION 2.022. Section 402.082, Labor Code, is amended to
9-69 read as follows:
10-1 Sec. 402.082. INJURY INFORMATION MAINTAINED BY DEPARTMENT
10-2 [COMMISSION]. The department [commission] shall maintain
10-3 information on every compensable injury as to the:
10-4 (1) race, ethnicity, and sex of the claimant;
10-5 (2) classification of the injury;
10-6 (3) amount of wages earned by the claimant before the
10-7 injury; and
10-8 (4) amount of compensation received by the claimant.
10-9 SECTION 2.023. Subsection (a), Section 402.083, Labor Code,
10-10 is amended to read as follows:
10-11 (a) Information in or derived from a claim file regarding an
10-12 employee is confidential and may not be disclosed by the department
10-13 [commission] except as provided by this subtitle.
10-14 SECTION 2.024. Subsection (a), Section 402.084, Labor Code,
10-15 is amended to read as follows:
10-16 (a) The department [commission] shall perform and release a
10-17 record check on an employee, including current or prior injury
10-18 information, to the parties listed in Subsection (b) if:
10-19 (1) the claim is:
10-20 (A) open or pending before the department
10-21 [commission];
10-22 (B) on appeal to a court of competent
10-23 jurisdiction; or
10-24 (C) the subject of a subsequent suit in which
10-25 the insurance carrier or the subsequent injury fund is subrogated
10-26 to the rights of the named claimant; and
10-27 (2) the requesting party requests the release on a
10-28 form prescribed by the department [commission] for this purpose and
10-29 provides all required information.
10-30 SECTION 2.025. Section 402.085, Labor Code, is amended to
10-31 read as follows:
10-32 Sec. 402.085. EXCEPTIONS TO CONFIDENTIALITY. (a) The
10-33 department [commission] shall release information on a claim to:
10-34 (1) the Texas Department of Insurance for any
10-35 statutory or regulatory purpose;
10-36 (2) a legislative committee for legislative purposes;
10-37 (3) a state or federal elected official requested in
10-38 writing to provide assistance by a constituent who qualifies to
10-39 obtain injury information under Section 402.084(b), if the request
10-40 for assistance is provided to the department [commission];
10-41 (4) the Research and Oversight Council on Workers'
10-42 Compensation for research purposes; or
10-43 (5) the attorney general or another entity that
10-44 provides child support services under Part D, Title IV, Social
10-45 Security Act (42 U.S.C. Section 651 et seq.), relating to:
10-46 (A) establishing, modifying, or enforcing a
10-47 child support or medical support obligation; or
10-48 (B) locating an absent parent.
10-49 (b) The department [commission] may release information on a
10-50 claim to a governmental agency, political subdivision, or
10-51 regulatory body to use to:
10-52 (1) investigate an allegation of a criminal offense or
10-53 licensing or regulatory violation;
10-54 (2) provide:
10-55 (A) unemployment compensation benefits;
10-56 (B) crime victims compensation benefits;
10-57 (C) vocational rehabilitation services; or
10-58 (D) health care benefits;
10-59 (3) investigate occupational safety or health
10-60 violations;
10-61 (4) verify income on an application for benefits under
10-62 an income-based state or federal assistance program; or
10-63 (5) assess financial resources in an action, including
10-64 an administrative action, to:
10-65 (A) establish, modify, or enforce a child
10-66 support or medical support obligation;
10-67 (B) establish paternity;
10-68 (C) locate an absent parent; or
10-69 (D) cooperate with another state in an action
11-1 authorized under Part D, Title IV, Social Security Act (42 U.S.C.
11-2 Section 651 et seq.), or Chapter 231, Family [76, Human Resources]
11-3 Code.
11-4 SECTION 2.026. Subsections (a), (b), and (d), Section
11-5 402.088, Labor Code, are amended to read as follows:
11-6 (a) On receipt of a valid request made under and complying
11-7 with Section 402.087, the department [commission] shall review its
11-8 records.
11-9 (b) If the department [commission] finds that the applicant
11-10 has made two or more general injury claims in the preceding five
11-11 years, the department [commission] shall release the date and
11-12 description of each injury to the employer.
11-13 (d) If the employer requests information on three or more
11-14 applicants at the same time, the department [commission] may refuse
11-15 to release information until it receives the written authorization
11-16 from each applicant.
11-17 SECTION 2.027. Subsection (a), Section 402.089, Labor Code,
11-18 is amended to read as follows:
11-19 (a) An employer who receives information by telephone from
11-20 the department [commission] under Section 402.088 and who fails to
11-21 file the necessary authorization in accordance with Section 402.087
11-22 commits a Class C administrative violation.
11-23 SECTION 2.028. Section 402.090, Labor Code, is amended to
11-24 read as follows:
11-25 Sec. 402.090. STATISTICAL INFORMATION. The department
11-26 [commission], the research center, or any other governmental agency
11-27 may prepare and release statistical information if the identity of
11-28 an employee is not explicitly or implicitly disclosed.
11-29 SECTION 2.029. Subsection (a), Section 402.091, Labor Code,
11-30 is amended to read as follows:
11-31 (a) A person commits an offense if the person knowingly,
11-32 intentionally, or recklessly publishes, discloses, or distributes
11-33 information that is confidential under this subchapter to a person
11-34 not authorized to receive the information directly from the
11-35 department [commission].
11-36 SECTION 2.030. Subsections (a), (b), (d), (e), and (f),
11-37 Section 402.092, Labor Code, are amended to read as follows:
11-38 (a) Information maintained in the investigation files of the
11-39 department [commission] is confidential and may not be disclosed
11-40 except:
11-41 (1) in a criminal proceeding;
11-42 (2) in a hearing conducted by the department, or by
11-43 the State Office of Administrative Hearings under this subtitle
11-44 [commission];
11-45 (3) on a judicial determination of good cause; or
11-46 (4) to a governmental agency, political subdivision,
11-47 or regulatory body if the disclosure is necessary or proper for the
11-48 enforcement of the laws of this or another state or of the United
11-49 States.
11-50 (b) Department [Commission] investigation files are not open
11-51 records for purposes of Chapter 552, Government Code.
11-52 (d) For purposes of this section, "investigation file" means
11-53 any information compiled or maintained by the department
11-54 [commission] with respect to a department [commission]
11-55 investigation authorized by law.
11-56 (e) The department [commission], upon request, shall
11-57 disclose the identity of a complainant under this section if the
11-58 department [commission] finds:
11-59 (1) the complaint was groundless or made in bad faith;
11-60 or
11-61 (2) the complaint lacks any basis in fact or evidence;
11-62 or
11-63 (3) the complaint is frivolous; or
11-64 (4) the complaint is done specifically for competitive
11-65 or economic advantage.
11-66 (f) Upon completion of an investigation where the department
11-67 [commission] determines a complaint is groundless, frivolous, made
11-68 in bad faith, or is not supported by evidence or is done
11-69 specifically for competitive or economic advantage the department
12-1 [commission] shall notify the person who was the subject of the
12-2 complaint of its finding and the identity of the complainant.
12-3 ARTICLE 3. GENERAL CONFORMING AMENDMENTS
12-4 SECTION 3.001. Subsection (b), Section 91.003, Labor Code,
12-5 is amended to read as follows:
12-6 (b) In particular, the Texas Workforce Commission, the Texas
12-7 Department of Insurance, the Texas Department of Workers'
12-8 Compensation [Commission], and the attorney general's office shall
12-9 assist in the implementation of this chapter and shall provide
12-10 information to the department on request.
12-11 SECTION 3.002. Section 401.002, Labor Code, is amended to
12-12 read as follows:
12-13 Sec. 401.002. APPLICATION OF SUNSET ACT. The Texas
12-14 Department of Workers' Compensation [Commission] is subject to
12-15 Chapter 325, Government Code (Texas Sunset Act). Unless continued
12-16 in existence as provided by that chapter, the department
12-17 [commission] is abolished September 1, 2007.
12-18 SECTION 3.003. Section 401.011, Labor Code, is amended by
12-19 amending Subdivisions (8), (15), (37), and (39) and adding
12-20 Subdivision (45) to read as follows:
12-21 (8) "Commissioner" means the commissioner of workers'
12-22 compensation ["Commission" means the Texas Workers' Compensation
12-23 Commission].
12-24 (15) "Designated doctor" means a doctor appointed by
12-25 mutual agreement of the parties or by the department [commission]
12-26 to recommend a resolution of a dispute as to the medical condition
12-27 of an injured employee.
12-28 (37) "Representative" means a person, including an
12-29 attorney, authorized by the department [commission] to assist or
12-30 represent an employee, a person claiming a death benefit, or an
12-31 insurance carrier in a matter arising under this subtitle that
12-32 relates to the payment of compensation.
12-33 (39) "Sanction" means a penalty or other punitive
12-34 action or remedy imposed by the department [commission] on an
12-35 insurance carrier, representative, employee, employer, or health
12-36 care provider for an act or omission in violation of this subtitle
12-37 or a rule or order of the department [commission].
12-38 (45) "Department" means the Texas Department of
12-39 Workers' Compensation.
12-40 SECTION 3.004. Section 401.021, Labor Code, is amended to
12-41 read as follows:
12-42 Sec. 401.021. APPLICATION OF OTHER ACTS. Except as
12-43 otherwise provided by this subtitle:
12-44 (1) a proceeding, hearing, judicial review, or
12-45 enforcement of a department [commission] order, decision, or rule
12-46 is governed by the following subchapters and sections of Chapter
12-47 2001, Government Code:
12-48 (A) Subchapters A, B, D, E, G, and H, excluding
12-49 Sections 2001.004(3) and 2001.005;
12-50 (B) Sections 2001.051, 2001.052, and 2001.053;
12-51 (C) Sections 2001.056 through 2001.062; and
12-52 (D) Section 2001.141(c);
12-53 (2) a proceeding, hearing, judicial review, or
12-54 enforcement of a department [commission] order, decision, or rule
12-55 is governed by Subchapters A and B, Chapter 2002, Government Code,
12-56 excluding Sections 2002.001(3) [2002.001(2)] and 2002.023;
12-57 (3) Chapter 551, Government Code, applies to a
12-58 proceeding under this subtitle, other than:
12-59 (A) a benefit review conference;
12-60 (B) a contested case hearing;
12-61 (C) an appeals panel proceeding;
12-62 (D) arbitration; or
12-63 (E) another proceeding involving a determination
12-64 on a workers' compensation claim; and
12-65 (4) Chapter 552, Government Code, applies to a record
12-66 of the department [commission] or the research center.
12-67 SECTION 3.005. Subsection (b), Section 401.023, Labor Code,
12-68 is amended to read as follows:
12-69 (b) The department [commission] shall compute and publish
13-1 the interest and discount rate quarterly, using the auction rate
13-2 quoted on a discount basis for the 52-week treasury bills issued by
13-3 the United States government, as published by the Federal Reserve
13-4 Board on the date nearest to the 15th day preceding the first day
13-5 of the calendar quarter for which the rate is to be effective, plus
13-6 3.5 percent. For this purpose, calendar quarters begin January 1,
13-7 April 1, July 1, and October 1.
13-8 SECTION 3.006. Subsections (b), (c), and (d), Section
13-9 401.024, Labor Code, are amended to read as follows:
13-10 (b) Notwithstanding another provision of this subtitle that
13-11 specifies the form, manner, or procedure for the transmission of
13-12 specified information, the commissioner [commission] by rule may
13-13 permit or require the use of an electronic transmission instead of
13-14 the specified form, manner, or procedure. If the electronic
13-15 transmission of information is not authorized or permitted by
13-16 [commission] rule, the transmission of that information is governed
13-17 by any applicable statute or rule that prescribes the form, manner,
13-18 or procedure for the transmission, including standards adopted by
13-19 the Department of Information Resources.
13-20 (c) The department [commission] may designate and contract
13-21 with a data collection agent to fulfill the data collection
13-22 requirements of this subtitle.
13-23 (d) The department [executive director] may prescribe the
13-24 form, manner, and procedure for transmitting any authorized or
13-25 required electronic transmission, including requirements related to
13-26 security, confidentiality, accuracy, and accountability.
13-27 SECTION 3.007. Subchapter C, Chapter 401, Labor Code, is
13-28 amended by adding Section 401.025 to read as follows:
13-29 Sec. 401.025. REFERENCES TO COMMISSION AND EXECUTIVE
13-30 DIRECTOR. A reference in this code or other law to the Texas
13-31 Workers' Compensation Commission or the executive director of that
13-32 commission means the department or the commissioner as consistent
13-33 with the respective duties of the commissioner and the department
13-34 under this subtitle and other workers' compensation laws of this
13-35 state.
13-36 SECTION 3.008. The heading to Section 403.001, Labor Code,
13-37 is amended to read as follows:
13-38 Sec. 403.001. DEPARTMENT [COMMISSION] FUNDS.
13-39 SECTION 3.009. Subsections (a) and (b), Section 403.001,
13-40 Labor Code, are amended to read as follows:
13-41 (a) Except as provided by Sections 403.006 and 403.007 or as
13-42 otherwise provided by law, money collected under this subtitle,
13-43 including administrative penalties and advance deposits for
13-44 purchase of services, shall be deposited in the general revenue
13-45 fund of the state treasury to the credit of the department
13-46 [commission].
13-47 (b) The money may be spent as authorized by legislative
13-48 appropriation on warrants issued by the comptroller under
13-49 requisitions made by the department [commission].
13-50 SECTION 3.010. Section 403.003, Labor Code, is amended to
13-51 read as follows:
13-52 Sec. 403.003. RATE OF ASSESSMENT. (a) The department
13-53 [commission] shall set and certify to the comptroller the rate of
13-54 maintenance tax assessment not later than October 31 of each year,
13-55 taking into account:
13-56 (1) any expenditure projected as necessary for the
13-57 department [commission] to:
13-58 (A) administer this subtitle during the fiscal
13-59 year for which the rate of assessment is set; and
13-60 (B) reimburse the general revenue fund as
13-61 provided by Article 4.19, Insurance Code;
13-62 (2) projected employee benefits paid from general
13-63 revenues;
13-64 (3) a surplus or deficit produced by the tax in the
13-65 preceding year;
13-66 (4) revenue recovered from other sources, including
13-67 reappropriated receipts, grants, payments, fees, gifts, and
13-68 penalties recovered under this subtitle; and
13-69 (5) expenditures projected as necessary to support the
14-1 prosecution of workers' compensation insurance fraud.
14-2 (b) In setting the rate of assessment, the department
14-3 [commission] may not consider revenue or expenditures related to:
14-4 (1) the State Office of Risk Management;
14-5 (2) the research and oversight council on workers'
14-6 compensation; or
14-7 (3) any other revenue or expenditure excluded from
14-8 consideration by law.
14-9 SECTION 3.011. Section 403.004, Labor Code, is amended to
14-10 read as follows:
14-11 Sec. 403.004. COLLECTION OF TAX AFTER WITHDRAWAL FROM
14-12 BUSINESS. The insurance commissioner or the department [executive
14-13 director of the commission] immediately shall proceed to collect
14-14 taxes due under this chapter from an insurance carrier that
14-15 withdraws from business in this state, using legal process as
14-16 necessary.
14-17 SECTION 3.012. Section 403.005, Labor Code, is amended to
14-18 read as follows:
14-19 Sec. 403.005. TAX RATE SURPLUS OR DEFICIT. (a) If the tax
14-20 rate set by the department [commission] for a year does not produce
14-21 sufficient revenue to make all expenditures authorized by
14-22 legislative appropriation, the deficit shall be paid from the
14-23 general revenue fund.
14-24 (b) If the tax rate set by the commissioner [commission] for
14-25 a year produces revenue that exceeds the amount required to make
14-26 all expenditures authorized by the legislature, the excess shall be
14-27 deposited in the general revenue fund to the credit of the
14-28 department [commission].
14-29 SECTION 3.013. Subsection (c), Section 403.006, Labor Code,
14-30 is amended to read as follows:
14-31 (c) The commissioner [executive director] shall appoint an
14-32 administrator for the subsequent injury fund.
14-33 SECTION 3.014. Section 403.007, Labor Code, is amended to
14-34 read as follows:
14-35 Sec. 403.007. FUNDING OF SUBSEQUENT INJURY FUND. (a) If a
14-36 compensable death occurs and no legal beneficiary survives or a
14-37 claim for death benefits is not timely made, the insurance carrier
14-38 shall pay to the department [commission] for deposit to the credit
14-39 of the subsequent injury fund an amount equal to 364 weeks of the
14-40 death benefits otherwise payable.
14-41 (b) The insurance carrier may elect or the department
14-42 [commission] may order that death benefits payable to the fund be
14-43 commuted on written approval of the department [executive
14-44 director]. The commutation may be discounted for present payment
14-45 at the rate established in Section 401.023, compounded annually.
14-46 (c) If a claim for death benefits is not filed with the
14-47 department [commission] by a legal beneficiary on or before the
14-48 first anniversary of the date of the death of the employee, it is
14-49 presumed, for purposes of this section only, that no legal
14-50 beneficiary survived the deceased employee. The presumption does
14-51 not apply against a minor beneficiary or an incompetent beneficiary
14-52 for whom a guardian has not been appointed.
14-53 (d) If the insurance carrier makes payment to the subsequent
14-54 injury fund and it is later determined by a final award of the
14-55 department [commission] or the final judgment of a court of
14-56 competent jurisdiction that a legal beneficiary is entitled to the
14-57 death benefits, the department [commission] shall order the fund to
14-58 reimburse the insurance carrier for the amount overpaid to the
14-59 fund.
14-60 SECTION 3.015. Subsection (a), Section 404.002, Labor Code,
14-61 is amended to read as follows:
14-62 (a) The Research and Oversight Council on Workers'
14-63 Compensation is an advisory body to the commissioner [commission].
14-64 The council shall be operated in a manner that ensures that its
14-65 research, findings, and conclusions are factual, fair, and
14-66 unbiased.
14-67 SECTION 3.016. Subsection (b), Section 404.003, Labor Code,
14-68 is amended to read as follows:
14-69 (b) The department [commission] shall set the rate of the
15-1 maintenance tax based on the expenditures authorized and the
15-2 receipts anticipated in legislative appropriations. The tax rate
15-3 for insurance companies may not exceed one-tenth of one percent of
15-4 the correctly reported gross workers' compensation insurance
15-5 premiums. The tax rate for certified self-insurers may not exceed
15-6 one-tenth of one percent of the total tax base of all certified
15-7 self-insurers, as computed under Section 407.103(b).
15-8 SECTION 3.017. Subsections (a) and (d), Section 404.004,
15-9 Labor Code, are amended to read as follows:
15-10 (a) The council is governed by a board of directors,
15-11 composed of:
15-12 (1) three senators, appointed by the lieutenant
15-13 governor;
15-14 (2) three members of the house of representatives,
15-15 appointed by the speaker of the house of representatives;
15-16 (3) the commissioner or a person designated by the
15-17 commissioner [a member of the commission, appointed by the
15-18 commission, from the members who are wage earners];
15-19 (4) a member of the risk management board of the State
15-20 Office of Risk Management, appointed by the risk management board
15-21 [commission, appointed by the commission, from the members who are
15-22 employers of labor]; and
15-23 (5) the commissioner of insurance or a person
15-24 designated by that commissioner.
15-25 (d) An officer, employee, or paid consultant of a Texas
15-26 trade association whose members provide services subject to
15-27 regulation by the department [commission] or provide services whose
15-28 fees are subject to regulation by the department [commission] may
15-29 not be an employee of the council who is exempt from the state's
15-30 position classification plan or is compensated at or above the
15-31 amount prescribed by the General Appropriations Act for step 1,
15-32 salary group A17 [17], of the position classification salary
15-33 schedule.
15-34 SECTION 3.018. Section 404.0041, Labor Code, is amended to
15-35 read as follows:
15-36 Sec. 404.0041. EFFECT OF LOBBYING ACTIVITY. A person may
15-37 not act as the general counsel to the board or the council if the
15-38 person is required to register as a lobbyist under Chapter 305,
15-39 Government Code, because of the person's activities for
15-40 compensation on behalf of a profession that is regulated or has
15-41 fees regulated by the department [commission].
15-42 SECTION 3.019. Subsections (a) and (d), Section 404.007,
15-43 Labor Code, are amended to read as follows:
15-44 (a) The board shall:
15-45 (1) approve the operating budget of the council;
15-46 (2) adopt rules for the operations of the board and
15-47 the council;
15-48 (3) conduct professional studies and research on all
15-49 matters relevant to the cost, quality, and operational
15-50 effectiveness of the workers' compensation system;
15-51 (4) monitor the cost of income benefits under this
15-52 subtitle, with emphasis on the availability and cost of
15-53 supplemental income benefits;
15-54 (5) monitor the performance and operation of the Texas
15-55 Workers' Compensation Insurance Fund, with emphasis on the insurer
15-56 of last resort program;
15-57 (6) hold regular public hearings and receive testimony
15-58 and reports from:
15-59 (A) the department [commission];
15-60 (B) the Texas Workers' Compensation Insurance
15-61 Fund;
15-62 (C) the Texas Department of Insurance;
15-63 (D) the State Office of Risk Management; and
15-64 (E) any other public or private entity that is
15-65 involved in the workers' compensation system;
15-66 (7) receive information about workers' compensation
15-67 rules and operations of an entity listed in Subdivision (6); and
15-68 (8) review specific recommendations for legislation
15-69 relating to this subtitle [the Texas Workers' Compensation Act]
16-1 formally proposed by an entity listed in Subdivision (6).
16-2 (d) The board may:
16-3 (1) delegate powers to the executive director as it
16-4 considers appropriate, including general guidance on the
16-5 identification of information needs and the conduct of research;
16-6 (2) contract with other persons, including
16-7 institutions of higher education, for conducting economical studies
16-8 of high quality for the council;
16-9 (3) contract with the department [commission] for a
16-10 fiscal, personnel, or other support function;
16-11 (4) appoint expert advisory committees to provide
16-12 technical assistance in conducting research; and
16-13 (5) request reports and other information on workers'
16-14 compensation from an entity listed in Subsection (a)(6). Requests
16-15 made under this subsection shall be reasonable in scope and shall
16-16 take into account the availability of the information requested,
16-17 the preparation time required, and other relevant circumstances.
16-18 SECTION 3.020. Subsection (c), Section 404.008, Labor Code,
16-19 is amended to read as follows:
16-20 (c) The executive director shall prepare a request for
16-21 legislative appropriations for the operations of the council. If
16-22 the request is approved by the board, the board shall submit the
16-23 request to the department [commission]. The department
16-24 [commission] shall include the request in the department's
16-25 [commission's] legislative appropriations request.
16-26 SECTION 3.021. Subsection (a), Section 404.010, Labor Code,
16-27 is amended to read as follows:
16-28 (a) As required to fulfill the objectives of the council,
16-29 the council is entitled to access to the files and records of:
16-30 (1) the department [commission];
16-31 (2) the Texas Workforce Commission;
16-32 (3) the Texas Department of Insurance;
16-33 (4) the Texas Department of Human Services;
16-34 (5) the Texas Workers' Compensation Insurance Fund;
16-35 and
16-36 (6) other state agencies.
16-37 SECTION 3.022. The heading to Section 406.004, Labor Code,
16-38 is amended to read as follows:
16-39 Sec. 406.004. EMPLOYER NOTICE TO DEPARTMENT [COMMISSION];
16-40 ADMINISTRATIVE VIOLATION.
16-41 SECTION 3.023. Subsections (a) through (d), Section 406.004,
16-42 Labor Code, are amended to read as follows:
16-43 (a) An employer who does not obtain workers' compensation
16-44 insurance coverage shall notify the department [commission] in
16-45 writing, in the time and as prescribed by department [commission]
16-46 rule, that the employer elects not to obtain coverage.
16-47 (b) The department [commission] shall prescribe forms to be
16-48 used for the employer notification and shall require the employer
16-49 to provide reasonable information to the department [commission]
16-50 about the employer's business.
16-51 (c) The department [commission] may contract with the Texas
16-52 Employment Commission or the comptroller for assistance in
16-53 collecting the notification required under this section. Those
16-54 agencies shall cooperate with the department [commission] in
16-55 enforcing this section.
16-56 (d) The employer notification filing required under this
16-57 section shall be filed with the department [commission] in
16-58 accordance with Section 406.009.
16-59 SECTION 3.024. Subsection (c), Section 406.005, Labor Code,
16-60 is amended to read as follows:
16-61 (c) Each employer shall post a notice of whether the
16-62 employer has workers' compensation insurance coverage at
16-63 conspicuous locations at the employer's place of business as
16-64 necessary to provide reasonable notice to the employees. The
16-65 commissioner [commission] may adopt rules relating to the form and
16-66 content of the notice. The employer shall revise the notice when
16-67 the information contained in the notice is changed.
16-68 SECTION 3.025. Subsections (a), (b), and (c), Section
16-69 406.006, Labor Code, are amended to read as follows:
17-1 (a) An insurance company from which an employer has obtained
17-2 workers' compensation insurance coverage, a certified self-insurer,
17-3 and a political subdivision shall file notice of the coverage and
17-4 claim administration contact information with the department
17-5 [commission] not later than the 10th day after the date on which
17-6 the coverage or claim administration agreement takes effect, unless
17-7 the commissioner [commission] adopts a rule establishing a later
17-8 date for filing. Coverage takes effect on the date on which a
17-9 binder is issued, a later date and time agreed to by the parties,
17-10 on the date provided by the certificate of self-insurance, or on
17-11 the date provided in an interlocal agreement that provides for
17-12 self-insurance. The commissioner [commission] may adopt rules that
17-13 establish the coverage and claim administration contact information
17-14 required under this subsection.
17-15 (b) The notice required under this section shall be filed
17-16 with the department [commission] in accordance with Section
17-17 406.009.
17-18 (c) An insurance company, certified self-insurer, or
17-19 political subdivision commits a violation if the person fails to
17-20 file notice with the department [commission] as provided by this
17-21 section. A violation under this subsection is a Class C
17-22 administrative violation. Each day of noncompliance constitutes a
17-23 separate violation.
17-24 SECTION 3.026. Subsections (a), (b), and (c), Section
17-25 406.007, Labor Code, are amended to read as follows:
17-26 (a) An employer who terminates workers' compensation
17-27 insurance coverage obtained under this subtitle shall file a
17-28 written notice with the department [commission] by certified mail
17-29 not later than the 10th day after the date on which the employer
17-30 notified the insurance carrier to terminate the coverage. The
17-31 notice must include a statement certifying the date that notice was
17-32 provided or will be provided to affected employees under Section
17-33 406.005.
17-34 (b) The notice required under this section shall be filed
17-35 with the department [commission] in accordance with Section
17-36 406.009.
17-37 (c) Termination of coverage takes effect on the later of:
17-38 (1) the 30th day after the date of filing of notice
17-39 with the department [commission] under Subsection (a); or
17-40 (2) the cancellation date of the policy.
17-41 SECTION 3.027. Section 406.008, Labor Code, is amended to
17-42 read as follows:
17-43 Sec. 406.008. CANCELLATION OR NONRENEWAL OF COVERAGE BY
17-44 INSURANCE COMPANY; NOTICE. (a) An insurance company that cancels
17-45 a policy of workers' compensation insurance or that does not renew
17-46 the policy by the anniversary date of the policy shall deliver
17-47 notice of the cancellation or nonrenewal by certified mail or in
17-48 person to the employer and the department [commission] not later
17-49 than:
17-50 (1) the 30th day before the date on which the
17-51 cancellation or nonrenewal takes effect; or
17-52 (2) the 10th day before the date on which the
17-53 cancellation or nonrenewal takes effect if the insurance company
17-54 cancels or does not renew because of:
17-55 (A) fraud in obtaining coverage;
17-56 (B) misrepresentation of the amount of payroll
17-57 for purposes of premium calculation;
17-58 (C) failure to pay a premium when due;
17-59 (D) an increase in the hazard for which the
17-60 employer seeks coverage that results from an act or omission of the
17-61 employer and that would produce an increase in the rate, including
17-62 an increase because of a failure to comply with:
17-63 (i) reasonable recommendations for loss
17-64 control; or
17-65 (ii) recommendations designed to reduce a
17-66 hazard under the employer's control within a reasonable period; or
17-67 (E) a determination made by the commissioner of
17-68 insurance that the continuation of the policy would place the
17-69 insurer in violation of the law or would be hazardous to the
18-1 interest of subscribers, creditors, or the general public.
18-2 (b) The notice required under this section shall be filed
18-3 with the department [commission].
18-4 (c) Failure of the insurance company to give notice as
18-5 required by this section extends the policy until the date on which
18-6 the required notice is provided to the employer and the department
18-7 [commission].
18-8 SECTION 3.028. Subsections (a) through (d), Section 406.009,
18-9 Labor Code, are amended to read as follows:
18-10 (a) The department [commission] shall collect and maintain
18-11 the information required under this subchapter and shall monitor
18-12 compliance with the requirements of this subchapter.
18-13 (b) The commissioner [commission] may adopt rules as
18-14 necessary to enforce this subchapter.
18-15 (c) The department [commission] may designate a data
18-16 collection agent, implement an electronic reporting and public
18-17 information access program, and adopt rules as necessary to
18-18 implement the data collection requirements of this subchapter. The
18-19 department [executive director] may establish the form, manner, and
18-20 procedure for the transmission of information to the department
18-21 [commission as authorized by Section 402.042(b)(11)].
18-22 (d) The department [commission] may require an employer or
18-23 insurance carrier subject to this subtitle to identify or confirm
18-24 an employer's coverage status and claim administration contact
18-25 information as necessary to achieve the purposes of this subtitle.
18-26 SECTION 3.029. Subsection (c), Section 406.010, Labor Code,
18-27 is amended to read as follows:
18-28 (c) The commissioner [commission] by rule shall further
18-29 specify the requirements of this section.
18-30 SECTION 3.030. Subsection (a), Section 406.011, Labor Code,
18-31 is amended to read as follows:
18-32 (a) The commissioner [commission] by rule may require an
18-33 insurance carrier to designate a representative in Austin to act as
18-34 the insurance carrier's agent before the department [commission] in
18-35 Austin. Notice to the designated agent constitutes notice to the
18-36 insurance carrier.
18-37 SECTION 3.031. Section 406.012, Labor Code, is amended to
18-38 read as follows:
18-39 Sec. 406.012. ENFORCEMENT OF SUBCHAPTER. The department
18-40 [commission] shall enforce the administrative penalties established
18-41 under this subchapter in accordance with Chapter 415.
18-42 SECTION 3.032. Subsection (c), Section 406.051, Labor Code,
18-43 is amended to read as follows:
18-44 (c) The employer may not transfer:
18-45 (1) the obligation to accept a report of injury under
18-46 Section 409.001;
18-47 (2) the obligation to maintain records of injuries
18-48 under Section 409.006;
18-49 (3) the obligation to report injuries to the insurance
18-50 carrier under Section 409.005;
18-51 (4) liability for a violation of Section 415.006 or
18-52 415.008 or of Chapter 451; or
18-53 (5) the obligation to comply with a department
18-54 [commission] order.
18-55 SECTION 3.033. Subsection (b), Section 406.073, Labor Code,
18-56 is amended to read as follows:
18-57 (b) The employer shall file the agreement with the
18-58 department [executive director] on request.
18-59 SECTION 3.034. Subsections (a) and (b), Section 406.074,
18-60 Labor Code, are amended to read as follows:
18-61 (a) The department [executive director] may enter into an
18-62 agreement with an appropriate agency of another jurisdiction with
18-63 respect to:
18-64 (1) conflicts of jurisdiction;
18-65 (2) assumption of jurisdiction in a case in which the
18-66 contract of employment arises in one state and the injury is
18-67 incurred in another;
18-68 (3) procedures for proceeding against a foreign
18-69 employer who fails to comply with this subtitle; and
19-1 (4) procedures for the appropriate agency to use to
19-2 proceed against an employer of this state who fails to comply with
19-3 the workers' compensation laws of the other jurisdiction.
19-4 (b) An executed agreement that has been adopted as a rule by
19-5 the commissioner [commission] binds all subject employers and
19-6 employees.
19-7 SECTION 3.035. Subsection (b), Section 406.093, Labor Code,
19-8 is amended to read as follows:
19-9 (b) The commissioner [commission] by rule shall adopt
19-10 procedures relating to the method of payment of benefits to legally
19-11 incompetent employees.
19-12 SECTION 3.036. Subsection (b), Section 406.095, Labor Code,
19-13 is amended to read as follows:
19-14 (b) The commissioner [commission] by rule shall establish
19-15 the procedures and requirements for an election under this section.
19-16 SECTION 3.037. Subsections (c) and (d), Section 406.144,
19-17 Labor Code, are amended to read as follows:
19-18 (c) An agreement under this section shall be filed with the
19-19 department [commission] either by personal delivery or by
19-20 registered or certified mail and is considered filed on receipt by
19-21 the department [commission].
19-22 (d) The hiring contractor shall send a copy of an agreement
19-23 under this section to the hiring contractor's workers' compensation
19-24 insurance carrier on filing of the agreement with the department
19-25 [commission].
19-26 SECTION 3.038. Subsections (a), (b), (c), (d), and (f),
19-27 Section 406.145, Labor Code, are amended to read as follows:
19-28 (a) A hiring contractor and an independent subcontractor may
19-29 make a joint agreement declaring that the subcontractor is an
19-30 independent contractor as defined in Section 406.141(2) and that
19-31 the subcontractor is not the employee of the hiring contractor. If
19-32 the joint agreement is signed by both the hiring contractor and the
19-33 subcontractor and filed with the department [commission], the
19-34 subcontractor, as a matter of law, is an independent contractor and
19-35 not an employee, and is not entitled to workers' compensation
19-36 insurance coverage through the hiring contractor unless an
19-37 agreement is entered into under Section 406.144 to provide workers'
19-38 compensation insurance coverage. The department [commission] shall
19-39 prescribe forms for the joint agreement.
19-40 (b) A joint agreement shall be delivered to the department
19-41 [commission] by personal delivery or registered or certified mail
19-42 and is considered filed on receipt by the department [commission].
19-43 (c) The hiring contractor shall send a copy of a joint
19-44 agreement signed under this section to the hiring contractor's
19-45 workers' compensation insurance carrier on filing of the joint
19-46 agreement with the department [commission].
19-47 (d) The department [commission] shall maintain a system for
19-48 accepting and maintaining the joint agreements.
19-49 (f) If a subsequent hiring agreement is made to which the
19-50 joint agreement does not apply, the hiring contractor and
19-51 independent contractor shall notify the department [commission] and
19-52 the hiring contractor's workers' compensation insurance carrier in
19-53 writing.
19-54 SECTION 3.039. Subsection (b), Section 406.162, Labor Code,
19-55 is amended to read as follows:
19-56 (b) The comptroller shall prepare a consumer price index for
19-57 this state and shall certify the applicable index factor to the
19-58 department [commission] before October 1 of each year. The
19-59 department [commission] shall adjust the gross annual payroll
19-60 requirement under Subsection (a)(2)(B) accordingly.
19-61 SECTION 3.040. Subdivision (3), Section 407.001, Labor Code,
19-62 is amended to read as follows:
19-63 (3) "Impaired employer" means a certified
19-64 self-insurer:
19-65 (A) who has suspended payment of compensation as
19-66 determined by the department [commission];
19-67 (B) who has filed for relief under bankruptcy
19-68 laws;
19-69 (C) against whom bankruptcy proceedings have
20-1 been filed; or
20-2 (D) for whom a receiver has been appointed by a
20-3 court of this state.
20-4 SECTION 3.041. Section 407.021, Labor Code, is amended to
20-5 read as follows:
20-6 Sec. 407.021. DIVISION. The division of self-insurance
20-7 regulation is a division of the department [commission].
20-8 SECTION 3.042. Section 407.022, Labor Code, is amended to
20-9 read as follows:
20-10 Sec. 407.022. DIRECTOR. (a) The commissioner [executive
20-11 director of the commission] shall appoint the director of the
20-12 division.
20-13 (b) The director shall exercise all the rights, powers, and
20-14 duties imposed or conferred on the department [commission] by this
20-15 chapter, other than by Section 407.023.
20-16 SECTION 3.043. Section 407.023, Labor Code, is amended to
20-17 read as follows:
20-18 Sec. 407.023. EXCLUSIVE POWERS AND DUTIES OF COMMISSIONER
20-19 [COMMISSION]. (a) The commissioner [commission, by majority
20-20 vote,] shall:
20-21 (1) approve or deny a recommendation by the director
20-22 concerning the issuance or revocation of a certificate of authority
20-23 to self-insure; and
20-24 (2) certify that a certified self-insurer has
20-25 suspended payment of compensation or has otherwise become an
20-26 impaired employer.
20-27 (b) The commissioner [commission] may not delegate the
20-28 powers and duties imposed by this section.
20-29 SECTION 3.044. Subsections (a), (b), and (c), Section
20-30 407.041, Labor Code, are amended to read as follows:
20-31 (a) An employer who desires to self-insure under this
20-32 chapter must submit an application to the department [commission]
20-33 for a certificate of authority to self-insure.
20-34 (b) The application must be:
20-35 (1) submitted on a form adopted by the department
20-36 [commission]; and
20-37 (2) accompanied by a nonrefundable $1,000 application
20-38 fee.
20-39 (c) Not later than the 60th day after the date on which the
20-40 application is received, the director shall recommend approval or
20-41 denial of the application to the commissioner [commission].
20-42 SECTION 3.045. Section 407.042, Labor Code, is amended to
20-43 read as follows:
20-44 Sec. 407.042. ISSUANCE OF CERTIFICATE. With the approval of
20-45 the Texas Certified Self-Insurer Guaranty Association, [and by
20-46 majority vote,] the commissioner [commission] shall issue a
20-47 certificate of authority to self-insure to an applicant who meets
20-48 the certification requirements under this chapter and pays the
20-49 required fee.
20-50 SECTION 3.046. Section 407.043, Labor Code, is amended to
20-51 read as follows:
20-52 Sec. 407.043. PROCEDURES ON DENIAL OF APPLICATION. (a) If
20-53 the commissioner [commission] determines that an applicant for a
20-54 certificate of authority to self-insure does not meet the
20-55 certification requirements, the department [commission] shall
20-56 notify the applicant in writing of its determination, stating the
20-57 specific reasons for the denial and the conditions to be met before
20-58 approval may be granted.
20-59 (b) The applicant is entitled to a reasonable period, as
20-60 determined by the department [commission], to meet the conditions
20-61 for approval before the application is considered rejected for
20-62 purposes of appeal.
20-63 SECTION 3.047. Subsection (a), Section 407.044, Labor Code,
20-64 is amended to read as follows:
20-65 (a) A certificate of authority to self-insure is valid for
20-66 one year after the date of issuance and may be renewed under
20-67 procedures prescribed by the department [commission].
20-68 SECTION 3.048. Section 407.045, Labor Code, is amended to
20-69 read as follows:
21-1 Sec. 407.045. WITHDRAWAL FROM SELF-INSURANCE. (a) A
21-2 certified self-insurer may withdraw from self-insurance at any time
21-3 with the approval of the commissioner [commission]. The
21-4 commissioner [commission] shall approve the withdrawal if the
21-5 certified self-insurer shows to the satisfaction of the
21-6 commissioner [commission] that the certified self-insurer has
21-7 established an adequate program to pay all incurred losses,
21-8 including unreported losses, that arise out of accidents or
21-9 occupational diseases first distinctly manifested during the period
21-10 of operation as a certified self-insurer.
21-11 (b) A certified self-insurer who withdraws from
21-12 self-insurance shall surrender to the department [commission] the
21-13 certificate of authority to self-insure.
21-14 SECTION 3.049. Subsections (a), (b), and (d), Section
21-15 407.046, Labor Code, are amended to read as follows:
21-16 (a) The commissioner [commission by majority vote] may
21-17 revoke the certificate of authority to self-insure of a certified
21-18 self-insurer who fails to comply with requirements or conditions
21-19 established by this chapter or a rule adopted by the commissioner
21-20 [commission] under this chapter.
21-21 (b) If the commissioner [commission] believes that a ground
21-22 exists to revoke a certificate of authority to self-insure, the
21-23 commissioner [commission] shall refer the matter to the State
21-24 Office of Administrative Hearings. That office shall hold a
21-25 hearing to determine if the certificate should be revoked. The
21-26 hearing shall be conducted in the manner provided for a contested
21-27 case hearing under Chapter 2001, Government Code (the
21-28 administrative procedure law).
21-29 (d) If the certified self-insurer fails to show cause why
21-30 the certificate should not be revoked, the commissioner
21-31 [commission] immediately shall revoke the certificate.
21-32 SECTION 3.050. Subsection (b), Section 407.047, Labor Code,
21-33 is amended to read as follows:
21-34 (b) The security required under Sections 407.064 and 407.065
21-35 shall be maintained with the department [commission] or under the
21-36 department's [commission's] control until each claim for workers'
21-37 compensation benefits is paid, is settled, or lapses under this
21-38 subtitle.
21-39 SECTION 3.051. Subsections (a), (c), (e), and (f), Section
21-40 407.061, Labor Code, are amended to read as follows:
21-41 (a) To be eligible for a certificate of authority to
21-42 self-insure, an applicant for an initial or renewal certificate
21-43 must present evidence satisfactory to the commissioner [commission]
21-44 and the association of sufficient financial strength and liquidity,
21-45 under standards adopted by the commissioner [commission], to ensure
21-46 that all workers' compensation obligations incurred by the
21-47 applicant under this chapter are met promptly.
21-48 (c) The applicant must present a plan for claims
21-49 administration that is acceptable to the commissioner [commission]
21-50 and that designates a qualified claims servicing contractor.
21-51 (e) The applicant must provide to the department
21-52 [commission] a copy of each contract entered into with a person
21-53 that provides claims services, underwriting services, or accident
21-54 prevention services if the provider of those services is not an
21-55 employee of the applicant. The contract must be acceptable to the
21-56 commissioner [commission] and must be submitted in a standard form
21-57 adopted by the department [commission], if the department
21-58 [commission] adopts such a form.
21-59 (f) The commissioner [commission] shall adopt rules for the
21-60 requirements for the financial statements required by Subsection
21-61 (b)(2).
21-62 SECTION 3.052. Section 407.062, Labor Code, is amended to
21-63 read as follows:
21-64 Sec. 407.062. FINANCIAL STRENGTH AND LIQUIDITY REQUIREMENTS.
21-65 In assessing the financial strength and liquidity of an applicant,
21-66 the commissioner [commission] shall consider:
21-67 (1) the applicant's organizational structure and
21-68 management background;
21-69 (2) the applicant's profit and loss history;
22-1 (3) the applicant's compensation loss history;
22-2 (4) the source and reliability of the financial
22-3 information submitted by the applicant;
22-4 (5) the number of employees affected by
22-5 self-insurance;
22-6 (6) the applicant's access to excess insurance
22-7 markets;
22-8 (7) financial ratios, indexes, or other financial
22-9 measures that the commissioner [commission] finds appropriate; and
22-10 (8) any other information considered appropriate by
22-11 the commissioner [commission].
22-12 SECTION 3.053. Subsection (a), Section 407.063, Labor Code,
22-13 is amended to read as follows:
22-14 (a) In addition to meeting the other certification
22-15 requirements imposed under this chapter, an applicant for an
22-16 initial certificate of authority to self-insure must present
22-17 evidence satisfactory to the commissioner [commission] of a total
22-18 unmodified workers' compensation insurance premium in this state in
22-19 the calendar year of application of at least $500,000.
22-20 SECTION 3.054. Subsection (b), Section 407.064, Labor Code,
22-21 is amended to read as follows:
22-22 (b) If an applicant who has provided a letter of credit as
22-23 all or part of the security required under this section desires to
22-24 cancel the existing letter of credit and substitute a different
22-25 letter of credit or another form of security, the applicant shall
22-26 notify the department [commission] in writing not later than the
22-27 60th day before the effective date of the cancellation of the
22-28 original letter of credit.
22-29 SECTION 3.055. Subsections (a), (b), (c), (d), (f), and (g),
22-30 Section 407.081, Labor Code, are amended to read as follows:
22-31 (a) Each certified self-insurer shall file an annual report
22-32 with the department [commission]. The department [commission]
22-33 shall prescribe the form of the report and shall furnish blank
22-34 forms for the preparation of the report to each certified
22-35 self-insurer.
22-36 (b) The report must:
22-37 (1) include payroll information, in the form
22-38 prescribed by this chapter and the department [commission];
22-39 (2) state the number of injuries sustained in the
22-40 three preceding calendar years; and
22-41 (3) indicate separately the amount paid during each
22-42 year for income benefits, medical benefits, death benefits, burial
22-43 benefits, and other proper expenses related to worker injuries.
22-44 (c) Each certified self-insurer shall file with the
22-45 department [commission] as part of the annual report annual
22-46 independent financial statements that reflect the financial
22-47 condition of the self-insurer. The department [commission] shall
22-48 make a financial statement filed under this subsection available
22-49 for public review.
22-50 (d) The department [commission] may require that the report
22-51 include additional financial and statistical information.
22-52 (f) The report must include an estimate of future liability
22-53 for compensation. The estimate must be signed and sworn to by a
22-54 certified casualty actuary every third year, or more frequently if
22-55 required by the department [commission].
22-56 (g) If the department [commission] considers it necessary,
22-57 it may order a certified self-insurer whose financial condition or
22-58 claims record warrants closer supervision to report as provided by
22-59 this section more often than annually.
22-60 SECTION 3.056. Subsections (a), (c), and (d), Section
22-61 407.082, Labor Code, are amended to read as follows:
22-62 (a) Each certified self-insurer shall maintain the books,
22-63 records, and payroll information necessary to compile the annual
22-64 report required under Section 407.081 and any other information
22-65 reasonably required by the department [commission].
22-66 (c) The material maintained by the certified self-insurer
22-67 shall be open to examination by an authorized agent or
22-68 representative of the department [commission] at reasonable times
22-69 to ascertain the correctness of the information.
23-1 (d) The examination may be conducted at any location,
23-2 including the department's [commission's] Austin offices, or, at
23-3 the certified self-insurer's option, in the offices of the
23-4 certified self-insurer. The certified self-insurer shall pay the
23-5 reasonable expenses, including travel expenses, of an inspector who
23-6 conducts an inspection at its offices.
23-7 SECTION 3.057. Subsection (b), Section 407.101, Labor Code,
23-8 is amended to read as follows:
23-9 (b) The department [commission] shall deposit the
23-10 application fee for a certificate of authority to self-insure in
23-11 the state treasury to the credit of the workers' compensation
23-12 self-insurance fund.
23-13 SECTION 3.058. Section 407.102, Labor Code, is amended to
23-14 read as follows:
23-15 Sec. 407.102. REGULATORY FEE. (a) Each certified
23-16 self-insurer shall pay an annual fee to cover the administrative
23-17 costs incurred by the department [commission] in implementing this
23-18 chapter.
23-19 (b) The department [commission] shall base the fee on the
23-20 total amount of income benefit payments made in the preceding
23-21 calendar year. The department [commission] shall assess each
23-22 certified self-insurer a pro rata share based on the ratio that the
23-23 total amount of income benefit payments made by that certified
23-24 self-insurer bears to the total amount of income benefit payments
23-25 made by all certified self-insurers.
23-26 SECTION 3.059. Subsections (a) and (d), Section 407.103,
23-27 Labor Code, are amended to read as follows:
23-28 (a) Each certified self-insurer shall pay a self-insurer
23-29 maintenance tax for the administration of the department
23-30 [commission] and to support the prosecution of workers'
23-31 compensation insurance fraud in this state. Not more than two
23-32 percent of the total tax base of all certified self-insurers, as
23-33 computed under Subsection (b), may be assessed for a maintenance
23-34 tax under this section.
23-35 (d) In setting the rate of maintenance tax assessment for
23-36 insurance companies, the department [commission] may not consider
23-37 revenue or expenditures related to the division.
23-38 SECTION 3.060. Subsections (b), (c), and (e), Section
23-39 407.104, Labor Code, are amended to read as follows:
23-40 (b) The department [commission] shall compute the fee and
23-41 taxes of a certified self-insurer and notify the certified
23-42 self-insurer of the amounts due. The taxes and fees shall be
23-43 remitted to the department [commission].
23-44 (c) The regulatory fee imposed under Section 407.102 shall
23-45 be deposited in the state treasury to the credit of the workers'
23-46 compensation self-insurance fund. The self-insurer maintenance tax
23-47 shall be deposited in the state treasury to the credit of the
23-48 department [commission].
23-49 (e) If the certificate of authority to self-insure of a
23-50 certified self-insurer is terminated, the insurance commissioner or
23-51 the commissioner [executive director of the commission] shall
23-52 proceed immediately to collect taxes due under this subtitle, using
23-53 legal process as necessary.
23-54 SECTION 3.061. Subsections (b) and (c), Section 407.122,
23-55 Labor Code, are amended to read as follows:
23-56 (b) The board of directors is composed of the following
23-57 voting members:
23-58 (1) three certified self-insurers;
23-59 (2) the commissioner [one commission member
23-60 representing wage earners;]
23-61 [(3) one commission member representing employers];
23-62 and
23-63 (3) [(4)] the public counsel of the office of public
23-64 insurance counsel.
23-65 (c) The [executive director of the commission and the]
23-66 director of the division of self-insurance regulation serves
23-67 [serve] as a nonvoting member [members] of the board of directors.
23-68 SECTION 3.062. Subsection (b), Section 407.123, Labor Code,
23-69 is amended to read as follows:
24-1 (b) Rules adopted by the board are subject to the approval
24-2 of the commissioner [commission].
24-3 SECTION 3.063. Subsections (a) and (c), Section 407.124,
24-4 Labor Code, are amended to read as follows:
24-5 (a) On determination by the commissioner [commission] that a
24-6 certified self-insurer has become an impaired employer, the
24-7 director shall secure release of the security deposit required by
24-8 this chapter and shall promptly estimate:
24-9 (1) the amount of additional funds needed to
24-10 supplement the security deposit;
24-11 (2) the available assets of the impaired employer for
24-12 the purpose of making payment of all incurred liabilities for
24-13 compensation; and
24-14 (3) the funds maintained by the association for the
24-15 emergency payment of compensation liabilities.
24-16 (c) A certified self-insurer designated as an impaired
24-17 employer is exempt from assessments beginning on the date of the
24-18 designation until the commissioner [commission] determines that the
24-19 employer is no longer impaired.
24-20 SECTION 3.064. Subsection (d), Section 407.126, Labor Code,
24-21 is amended to read as follows:
24-22 (d) The board of directors shall administer the trust fund
24-23 in accordance with rules adopted by the commissioner [commission].
24-24 SECTION 3.065. Subsection (a), Section 407.127, Labor Code,
24-25 is amended to read as follows:
24-26 (a) If the commissioner [commission] determines that the
24-27 payment of benefits and claims administration shall be made through
24-28 the association, the association assumes the workers' compensation
24-29 obligations of the impaired employer and shall begin the payment of
24-30 the obligations for which it is liable not later than the 30th day
24-31 after the date of notification by the director.
24-32 SECTION 3.066. Subsection (a), Section 407.133, Labor Code,
24-33 is amended to read as follows:
24-34 (a) The commissioner [commission, after notice and hearing
24-35 and by majority vote,] may suspend or revoke the certificate of
24-36 authority to self-insure of a certified self-insurer who fails to
24-37 pay an assessment. The association promptly shall report such a
24-38 failure to the director.
24-39 SECTION 3.067. Subsection (c), Section 408.003, Labor Code,
24-40 is amended to read as follows:
24-41 (c) The employer shall notify the department [commission]
24-42 and the insurance carrier on forms prescribed by the department
24-43 [commission] of the initiation of and amount of payments made under
24-44 this section.
24-45 SECTION 3.068. Subsections (a), (b), (d), (e), and (f),
24-46 Section 408.004, Labor Code, are amended to read as follows:
24-47 (a) The department [commission] may require an employee to
24-48 submit to medical examinations to resolve any question about:
24-49 (1) the appropriateness of the health care received by
24-50 the employee;
24-51 (2) the impairment caused by the compensable injury;
24-52 (3) the attainment of maximum medical improvement; or
24-53 (4) similar issues.
24-54 (b) The department [commission] may require an employee to
24-55 submit to a medical examination at the request of the insurance
24-56 carrier, but only after the insurance carrier has attempted and
24-57 failed to receive the permission and concurrence of the employee
24-58 for the examination. Except as otherwise provided by this
24-59 subsection, the insurance carrier is entitled to the examination
24-60 only once in a 180-day period. The commissioner [commission] may
24-61 adopt rules that require an employee to submit to not more than
24-62 three medical examinations in a 180-day period under specified
24-63 circumstances, including to determine whether there has been a
24-64 change in the employee's condition, whether it is necessary to
24-65 change the employee's diagnosis, and whether treatment should be
24-66 extended to another body part or system. The commissioner
24-67 [commission] by rule shall adopt a system for monitoring requests
24-68 made under this subsection by insurance carriers. That system must
24-69 ensure that good cause exists for any additional medical
25-1 examination allowed under this subsection that is not requested by
25-2 the employee. A subsequent examination must be performed by the
25-3 same doctor unless otherwise approved by the department
25-4 [commission].
25-5 (d) An injured employee is entitled to have a doctor of the
25-6 employee's choice present at an examination required by the
25-7 department [commission] at the request of an insurance carrier.
25-8 The insurance carrier shall pay a fee set by the department
25-9 [commission] to the doctor selected by the employee.
25-10 (e) An employee who, without good cause as determined by the
25-11 department [commission], fails or refuses to appear at the time
25-12 scheduled for an examination under Subsection (a) or (b) commits a
25-13 violation. A violation under this subsection is a Class D
25-14 administrative violation. An employee is not entitled to temporary
25-15 income benefits, and an insurance carrier may suspend the payment
25-16 of temporary income benefits, during and for a period in which the
25-17 employee fails to submit to an examination under Subsection (a) or
25-18 (b) unless the department [commission] determines that the employee
25-19 had good cause for the failure to submit to the examination. The
25-20 department [commission] may order temporary income benefits to be
25-21 paid for the period that the department [commission] determines the
25-22 employee had good cause. The commissioner [commission] by rule
25-23 shall ensure that an employee receives reasonable notice of an
25-24 examination and of the insurance carrier's basis for suspension of
25-25 payment, and that the employee is provided a reasonable opportunity
25-26 to reschedule an examination missed by the employee for good cause.
25-27 (f) If the report of a doctor selected by an insurance
25-28 carrier indicates that an employee can return to work immediately
25-29 or has reached maximum medical improvement, the insurance carrier
25-30 may suspend or reduce the payment of temporary income benefits on
25-31 the 14th day after the date on which the insurance carrier files a
25-32 notice of suspension with the department [commission] as provided
25-33 by this subsection. The department [commission] shall hold an
25-34 expedited benefit review conference, by personal appearance or by
25-35 telephone, not later than the 10th day after the date on which the
25-36 department [commission] receives the insurance carrier's notice of
25-37 suspension. If a benefit review conference is not held by the 14th
25-38 day after the date on which the department [commission] receives
25-39 the insurance carrier's notice of suspension, an interlocutory
25-40 order, effective from the date of the report certifying maximum
25-41 medical improvement, is automatically entered for the continuation
25-42 of temporary income benefits until a benefit review conference is
25-43 held, and the insurance carrier is eligible for reimbursement for
25-44 any overpayment of benefits as provided by Chapter 410. The
25-45 department [commission] is not required to automatically schedule a
25-46 contested case hearing as required by Section 410.025(b) if a
25-47 benefit review conference is scheduled under this subsection. If a
25-48 benefit review conference is held not later than the 14th day, the
25-49 department [commission] may enter an interlocutory order for the
25-50 continuation of benefits, and the insurance carrier is eligible for
25-51 reimbursement for any overpayments of benefits as provided by
25-52 Chapter 410. The commissioner [commission] shall adopt rules as
25-53 necessary to implement this subsection under which:
25-54 (1) an insurance carrier is required to notify the
25-55 employee and the treating doctor of the suspension of benefits
25-56 under this subsection by certified mail or another verifiable
25-57 delivery method;
25-58 (2) the department [commission] makes a reasonable
25-59 attempt to obtain the treating doctor's opinion before the
25-60 department [commission] makes a determination regarding the entry
25-61 of an interlocutory order; and
25-62 (3) the department [commission] may allow abbreviated
25-63 contested case hearings by personal appearance or telephone to
25-64 consider issues relating to overpayment of benefits under this
25-65 section.
25-66 SECTION 3.069. Subsection (e), Section 408.005, Labor Code,
25-67 is amended to read as follows:
25-68 (e) The director of the division of hearings shall approve a
25-69 settlement if the director is satisfied that:
26-1 (1) the settlement accurately reflects the agreement
26-2 between the parties;
26-3 (2) the settlement reflects adherence to all
26-4 appropriate provisions of law and the policies of the department
26-5 [commission]; and
26-6 (3) under the law and facts, the settlement is in the
26-7 best interest of the claimant.
26-8 SECTION 3.070. Subsections (a), (b), and (c), Section
26-9 408.022, Labor Code, are amended to read as follows:
26-10 (a) Except in an emergency, the department [commission]
26-11 shall require an employee to receive medical treatment from a
26-12 doctor chosen from a list of doctors approved by the department
26-13 [commission]. A doctor may perform only those procedures that are
26-14 within the scope of the practice for which the doctor is licensed.
26-15 The employee is entitled to the employee's initial choice of a
26-16 doctor from the department's [commission's] list.
26-17 (b) If an employee is dissatisfied with the initial choice
26-18 of a doctor from the department's [commission's] list, the employee
26-19 may notify the department [commission] and request authority to
26-20 select an alternate doctor. The notification must be in writing
26-21 stating the reasons for the change, except notification may be by
26-22 telephone when a medical necessity exists for immediate change.
26-23 (c) The commissioner [commission] shall prescribe criteria
26-24 to be used by the department [commission] in granting the employee
26-25 authority to select an alternate doctor. The criteria may include:
26-26 (1) whether treatment by the current doctor is
26-27 medically inappropriate;
26-28 (2) the professional reputation of the doctor;
26-29 (3) whether the employee is receiving appropriate
26-30 medical care to reach maximum medical improvement; and
26-31 (4) whether a conflict exists between the employee and
26-32 the doctor to the extent that the doctor-patient relationship is
26-33 jeopardized or impaired.
26-34 SECTION 3.071. Section 408.023, Labor Code, is amended to
26-35 read as follows:
26-36 Sec. 408.023. LIST OF APPROVED DOCTORS. (a) Each doctor
26-37 licensed in this state on January 1, 1993, is on the department's
26-38 [commission's] list of approved doctors unless subsequently deleted
26-39 and not reinstated. The name of a doctor shall be placed on the
26-40 list of approved doctors when that doctor becomes licensed in this
26-41 state. A doctor not licensed in this state but licensed in another
26-42 state or jurisdiction who treats employees may apply to the
26-43 department [commission] to be included on the list.
26-44 (b) The commissioner [commission] shall establish criteria
26-45 for deleting a doctor from the list of approved doctors. The
26-46 criteria may include anything the commissioner [commission]
26-47 considers relevant, including:
26-48 (1) sanctions of the doctor by the department
26-49 [commission] for violations of Chapter 413 or Chapter 415;
26-50 (2) sanctions by the Medicare or Medicaid program for:
26-51 (A) substandard medical care;
26-52 (B) overcharging; or
26-53 (C) overutilization of medical services;
26-54 (3) evidence from the department's [commission's]
26-55 medical records that the doctor's charges, fees, diagnoses, or
26-56 treatments are substantially different from those the department
26-57 [commission] finds to be fair and reasonable; and
26-58 (4) suspension of the doctor's license by the
26-59 appropriate licensing authority.
26-60 (c) The department [commission] shall establish procedures
26-61 for a doctor to apply for reinstatement to the list.
26-62 SECTION 3.072. Section 408.024, Labor Code, is amended to
26-63 read as follows:
26-64 Sec. 408.024. NONCOMPLIANCE WITH SELECTION REQUIREMENTS.
26-65 Except as otherwise provided, and after notice and an opportunity
26-66 for hearing, the department [commission] may relieve an insurance
26-67 carrier of liability for health care that is furnished by a health
26-68 care provider or another person selected in a manner inconsistent
26-69 with the requirements of this subchapter.
27-1 SECTION 3.073. Subsections (a), (b), and (d), Section
27-2 408.025, Labor Code, are amended to read as follows:
27-3 (a) The commissioner [commission] by rule shall adopt
27-4 requirements for reports and records that are required to be filed
27-5 with the department [commission] or provided to the injured
27-6 employee, the employee's attorney, or the insurance carrier by a
27-7 health care provider.
27-8 (b) The commissioner [commission] by rule shall adopt
27-9 requirements for reports and records that are to be made available
27-10 by a health care provider to another health care provider to
27-11 prevent unnecessary duplication of tests and examinations.
27-12 (d) On the request of an injured employee, the employee's
27-13 attorney, or the insurance carrier, a health care provider shall
27-14 furnish records relating to treatment or hospitalization for which
27-15 compensation is being sought. The department [commission] may
27-16 regulate the charge for furnishing a report or record, but the
27-17 charge may not be less than the fair and reasonable charge for
27-18 furnishing the report or record. A health care provider may
27-19 disclose to the insurance carrier of an affected employer records
27-20 relating to the diagnosis or treatment of the injured employee
27-21 without the authorization of the injured employee to determine the
27-22 amount of payment or the entitlement to payment.
27-23 SECTION 3.074. Section 408.026, Labor Code, is amended to
27-24 read as follows:
27-25 Sec. 408.026. SPINAL SURGERY SECOND OPINION. (a) Except in
27-26 a medical emergency, an insurance carrier is liable for medical
27-27 costs related to spinal surgery only if:
27-28 (1) before surgery, the employee obtains from a doctor
27-29 approved by the insurance carrier or the department [commission] a
27-30 second opinion that concurs with the treating doctor's
27-31 recommendation;
27-32 (2) the insurance carrier waives the right to an
27-33 examination or fails to request an examination before the 15th day
27-34 after the date of the notification that surgery is recommended; or
27-35 (3) the department [commission] determines that
27-36 extenuating circumstances exist and orders payment for surgery.
27-37 (b) The commissioner [commission] shall adopt rules
27-38 necessary to ensure that an examination required under this section
27-39 is performed without undue delay.
27-40 SECTION 3.075. Subsection (d), Section 408.027, Labor Code,
27-41 is amended to read as follows:
27-42 (d) If an insurance carrier disputes the amount of payment
27-43 or the health care provider's entitlement to payment, the insurance
27-44 carrier shall send to the department [commission], the health care
27-45 provider, and the injured employee a report that sufficiently
27-46 explains the reasons for the reduction or denial of payment for
27-47 health care services provided to the employee. The insurance
27-48 carrier is entitled to a hearing as provided by Section 413.031(d).
27-49 SECTION 3.076. Subsection (c), Section 408.041, Labor Code,
27-50 is amended to read as follows:
27-51 (c) If Subsection (a) or (b) cannot reasonably be applied
27-52 because the employee's employment has been irregular or because the
27-53 employee has lost time from work during the 13-week period
27-54 immediately preceding the injury because of illness, weather, or
27-55 another cause beyond the control of the employee, the department
27-56 [commission] may determine the employee's average weekly wage by
27-57 any method that the department [commission] considers fair, just,
27-58 and reasonable to all parties and consistent with the methods
27-59 established under this section.
27-60 SECTION 3.077. Subsection(c), Section 408.043, Labor Code,
27-61 is amended to read as follows:
27-62 (c) If, for good reason, the department [commission]
27-63 determines that computing the average weekly wage for a seasonal
27-64 employee as provided by this section is impractical, the department
27-65 [commission] shall compute the average weekly wage as of the time
27-66 of the injury in a manner that is fair and just to both parties.
27-67 SECTION 3.078. Section 408.045, Labor Code, is amended to
27-68 read as follows:
27-69 Sec. 408.045. NONPECUNIARY WAGES. The department
28-1 [commission] may not include nonpecuniary wages in computing an
28-2 employee's average weekly wage during a period in which the
28-3 employer continues to provide the nonpecuniary wages.
28-4 SECTION 3.079. Subsection (f), Section 408.061, Labor Code,
28-5 is amended to read as follows:
28-6 (f) The department [commission] shall compute the maximum
28-7 weekly income benefits for each state fiscal year not later than
28-8 September 1 of each year.
28-9 SECTION 3.080. Subsection (b), Section 408.062, Labor Code,
28-10 is amended to read as follows:
28-11 (b) The department [commission] shall compute the minimum
28-12 weekly income benefit for each state fiscal year not later than
28-13 September 1 of each year.
28-14 SECTION 3.081. Subsection (a), Section 408.063, Labor Code,
28-15 is amended to read as follows:
28-16 (a) To expedite the payment of income benefits, the
28-17 commissioner [commission] may by rule establish reasonable
28-18 presumptions relating to the wages earned by an employee, including
28-19 the presumption that an employee's last paycheck accurately
28-20 reflects the employee's usual wage.
28-21 SECTION 3.082. Subsections (b) and (c), Section 408.081,
28-22 Labor Code, are amended to read as follows:
28-23 (b) Except as otherwise provided by this section or this
28-24 subtitle, income benefits shall be paid weekly as and when they
28-25 accrue without order from the department [commission]. Interest on
28-26 accrued but unpaid benefits shall be paid, without order of the
28-27 department [commission], at the time the accrued benefits are paid.
28-28 (c) The commissioner [commission] by rule shall establish
28-29 requirements for agreements under which income benefits may be paid
28-30 monthly. Income benefits may be paid monthly only:
28-31 (1) on the request of the employee and the agreement
28-32 of the employee and the insurance carrier; and
28-33 (2) in compliance with the requirements adopted by the
28-34 commissioner [commission].
28-35 SECTION 3.083. Subsections (a) and (b), Section 408.084,
28-36 Labor Code, are amended to read as follows:
28-37 (a) At the request of the insurance carrier, the department
28-38 [commission] may order that impairment income benefits and
28-39 supplemental income benefits be reduced in a proportion equal to
28-40 the proportion of a documented impairment that resulted from
28-41 earlier compensable injuries.
28-42 (b) The department [commission] shall consider the
28-43 cumulative impact of the compensable injuries on the employee's
28-44 overall impairment in determining a reduction under this section.
28-45 SECTION 3.084. Section 408.085, Labor Code, is amended to
28-46 read as follows:
28-47 Sec. 408.085. ADVANCE OF BENEFITS FOR HARDSHIP. (a) If
28-48 there is a likelihood that income benefits will be paid, the
28-49 department [commission] may grant an employee suffering financial
28-50 hardship advances as provided by this subtitle against the amount
28-51 of income benefits to which the employee may be entitled. An
28-52 advance may be ordered before or after the employee attains maximum
28-53 medical improvement. An insurance carrier shall pay the advance
28-54 ordered.
28-55 (b) An employee must apply to the department [commission]
28-56 for an advance on a form prescribed by the department [commission].
28-57 The application must describe the hardship that is the grounds for
28-58 the advance.
28-59 (c) An advance under this section may not exceed an amount
28-60 equal to four times the maximum weekly benefit for temporary income
28-61 benefits as computed in Section 408.061. The department
28-62 [commission] may not grant more than three advances to a particular
28-63 employee based on the same injury.
28-64 (d) The department [commission] may not grant an advance to
28-65 an employee who is receiving, on the date of the application under
28-66 Subsection (b), at least 90 percent of the employee's net preinjury
28-67 wages under Section 408.003 or 408.129.
28-68 SECTION 3.085. Section 408.086, Labor Code, is amended to
28-69 read as follows:
29-1 Sec. 408.086. DEPARTMENT [COMMISSION] DETERMINATION OF
29-2 EXTENDED UNEMPLOYMENT OR UNDEREMPLOYMENT. (a) During the period
29-3 that impairment income benefits or supplemental income benefits are
29-4 being paid to an employee, the department [commission] shall
29-5 determine at least annually whether any extended unemployment or
29-6 underemployment is a direct result of the employee's impairment.
29-7 (b) To make this determination, the department [commission]
29-8 may require periodic reports from the employee and the insurance
29-9 carrier and, at the insurance carrier's expense, may require
29-10 physical or other examinations, vocational assessments, or other
29-11 tests or diagnoses necessary to perform its duty under this section
29-12 and Subchapter H.
29-13 SECTION 3.086. Subsection (b), Section 408.102, Labor Code,
29-14 is amended to read as follows:
29-15 (b) The commissioner [commission] by rule shall establish a
29-16 presumption that maximum medical improvement has been reached based
29-17 on a lack of medical improvement in the employee's condition.
29-18 SECTION 3.087. Subsection (b), Section 408.103, Labor Code,
29-19 is amended to read as follows:
29-20 (b) A temporary income benefit under Subsection (a)(2) may
29-21 not exceed the employee's actual earnings for the previous year.
29-22 It is presumed that the employee's actual earnings for the previous
29-23 year are equal to:
29-24 (1) the sum of the employee's wages as reported in the
29-25 most recent four quarterly wage reports to the Texas Workforce
29-26 [Employment] Commission divided by 52;
29-27 (2) the employee's wages in the single quarter of the
29-28 most recent four quarters in which the employee's earnings were
29-29 highest, divided by 13, if the department [commission] finds that
29-30 the employee's most recent four quarters' earnings reported in the
29-31 Texas Workforce [Employment] Commission wage reports are not
29-32 representative of the employee's usual earnings; or
29-33 (3) the amount the department [commission] determines
29-34 from other credible evidence to be the actual earnings for the
29-35 previous year if the Texas Workforce [Employment] Commission does
29-36 not have a wage report reflecting at least one quarter's earnings
29-37 because the employee worked outside the state during the previous
29-38 year.
29-39 SECTION 3.088. Subsections (a) and (c), Section 408.104,
29-40 Labor Code, are amended to read as follows:
29-41 (a) On application by either the employee or the insurance
29-42 carrier, the department [commission] by order may extend the
29-43 104-week period described by Section 401.011(30)(B) if the employee
29-44 has had spinal surgery, or has been approved for spinal surgery
29-45 under Section 408.026 and commissioner [commission] rules, within
29-46 12 weeks before the expiration of the 104-week period. If an order
29-47 is issued under this section, the order shall extend the statutory
29-48 period for maximum medical improvement to a date certain, based on
29-49 medical evidence presented to the department [commission].
29-50 (c) The commissioner [commission] shall adopt rules to
29-51 implement this section, including rules establishing procedures for
29-52 requesting and disputing an extension.
29-53 SECTION 3.089. Subsections (b) and (c), Section 408.122,
29-54 Labor Code, are amended to read as follows:
29-55 (b) To be eligible to serve as a designated doctor, a doctor
29-56 must meet specific qualifications, including training in the
29-57 determination of impairment ratings. The department [executive
29-58 director] shall develop qualification standards and administrative
29-59 policies to implement this subsection, and the commissioner
29-60 [commission] may adopt rules as necessary. To the extent possible,
29-61 a designated doctor must be in the same discipline and licensed by
29-62 the same board of examiners as the employee's doctor of choice.
29-63 (c) If a dispute exists as to whether the employee has
29-64 reached maximum medical improvement, the department [commission]
29-65 shall direct the employee to be examined by a designated doctor
29-66 chosen by mutual agreement of the parties. If the parties are
29-67 unable to agree on a designated doctor, the department [commission]
29-68 shall direct the employee to be examined by a designated doctor
29-69 chosen by the department [commission]. The designated doctor shall
30-1 report to the department [commission]. The report of the
30-2 designated doctor has presumptive weight, and the department
30-3 [commission] shall base its determination of whether the employee
30-4 has reached maximum medical improvement on the report unless the
30-5 great weight of the other medical evidence is to the contrary.
30-6 SECTION 3.090. Subsections (b) and (c), Section 408.123,
30-7 Labor Code, are amended to read as follows:
30-8 (b) A certifying doctor shall issue a written report
30-9 certifying that maximum medical improvement has been reached,
30-10 stating the employee's impairment rating, and providing any other
30-11 information required by the department [commission] to:
30-12 (1) the department [commission];
30-13 (2) the employee; and
30-14 (3) the insurance carrier.
30-15 (c) If an employee is not certified as having reached
30-16 maximum medical improvement before the expiration of 102 weeks
30-17 after the date income benefits begin to accrue, the department
30-18 [commission] shall notify the treating doctor of the requirements
30-19 of this subchapter.
30-20 SECTION 3.091. Section 408.124, Labor Code, is amended to
30-21 read as follows:
30-22 Sec. 408.124. IMPAIRMENT RATING GUIDELINES. (a) An award
30-23 of an impairment income benefit, whether by the department
30-24 [commission] or a court, shall be made on an impairment rating
30-25 determined using the impairment rating guidelines described in this
30-26 section.
30-27 (b) For determining the existence and degree of an
30-28 employee's impairment, the department [commission] shall use
30-29 "Guides to the Evaluation of Permanent Impairment," third edition,
30-30 second printing, dated February 1989, published by the American
30-31 Medical Association.
30-32 (c) Notwithstanding Subsection (b), the commissioner
30-33 [commission] by rule may adopt the fourth edition of the "Guides to
30-34 the Evaluation of Permanent Impairment," published by the American
30-35 Medical Association, for determining the existence and degree of an
30-36 employee's impairment.
30-37 SECTION 3.092. Subsections (a), (b), (c), (d), (e), and (f),
30-38 Section 408.125, Labor Code, are amended to read as follows:
30-39 (a) If an impairment rating is disputed, the department
30-40 [commission] shall direct the employee to be examined by a
30-41 designated doctor chosen by mutual agreement of the parties.
30-42 (b) If the parties are unable to agree on a designated
30-43 doctor, the department [commission] shall direct the employee to be
30-44 examined by a designated doctor chosen by the department
30-45 [commission].
30-46 (c) The designated doctor shall report in writing to the
30-47 department [commission].
30-48 (d) If the designated doctor is chosen by the parties, the
30-49 department [commission] shall adopt the impairment rating made by
30-50 the designated doctor.
30-51 (e) If the designated doctor is chosen by the department
30-52 [commission], the report of the designated doctor shall have
30-53 presumptive weight, and the department [commission] shall base the
30-54 impairment rating on that report unless the great weight of the
30-55 other medical evidence is to the contrary. If the great weight of
30-56 the medical evidence contradicts the impairment rating contained in
30-57 the report of the designated doctor chosen by the department
30-58 [commission], the department [commission] shall adopt the
30-59 impairment rating of one of the other doctors.
30-60 (f) To avoid undue influence on a person selected as a
30-61 designated doctor under this section, only the injured employee or
30-62 an appropriate member of the staff of the department [commission]
30-63 may communicate with the designated doctor about the case regarding
30-64 the injured employee's medical condition or history before the
30-65 examination of the injured employee by the designated doctor.
30-66 After that examination is completed, communication with the
30-67 designated doctor regarding the injured employee's medical
30-68 condition or history may be made only through appropriate
30-69 department [commission] staff members. The designated doctor may
31-1 initiate communication with any doctor who has previously treated
31-2 or examined the injured employee for the work-related injury.
31-3 SECTION 3.093. Subsection (c), Section 408.127, Labor Code,
31-4 is amended to read as follows:
31-5 (c) The commissioner [commission] shall adopt rules and
31-6 forms to ensure the full reporting and the accuracy of reductions
31-7 and reimbursements made under this section.
31-8 SECTION 3.094. Subsections (a), (b), and (d), Section
31-9 408.129, Labor Code, are amended to read as follows:
31-10 (a) On approval by the department [commission] of a written
31-11 request received from an employee, an insurance carrier shall
31-12 accelerate the payment of impairment income benefits to the
31-13 employee. The accelerated payment may not exceed a rate of payment
31-14 equal to that of the employee's net preinjury wage.
31-15 (b) The department [commission] shall approve the request
31-16 and order the acceleration of the benefits if the department
31-17 [commission] determines that the acceleration is:
31-18 (1) required to relieve hardship; and
31-19 (2) in the overall best interest of the employee.
31-20 (d) The department [commission] may prescribe forms
31-21 necessary to implement this section.
31-22 SECTION 3.095. Section 408.141, Labor Code, is amended to
31-23 read as follows:
31-24 Sec. 408.141. AWARD OF SUPPLEMENTAL INCOME BENEFITS. An
31-25 award of a supplemental income benefit, whether by the department
31-26 [commission] or a court, shall be made in accordance with this
31-27 subchapter.
31-28 SECTION 3.096. Subsections (a) and (b), Section 408.143,
31-29 Labor Code, are amended to read as follows:
31-30 (a) After the department's [commission's] initial
31-31 determination of supplemental income benefits, the employee must
31-32 file a statement with the insurance carrier stating:
31-33 (1) that the employee has earned less than 80 percent
31-34 of the employee's average weekly wage as a direct result of the
31-35 employee's impairment;
31-36 (2) the amount of wages the employee earned in the
31-37 filing period provided by Subsection (b); and
31-38 (3) that the employee has in good faith sought
31-39 employment commensurate with the employee's ability to work.
31-40 (b) The statement required under this section must be filed
31-41 quarterly on a form and in the manner provided by the department
31-42 [commission]. The department [commission] may modify the filing
31-43 period as appropriate to an individual case.
31-44 SECTION 3.097. Subsection (c), Section 408.147, Labor Code,
31-45 is amended to read as follows:
31-46 (c) If an insurance carrier disputes the department's [a
31-47 commission] determination that an employee is entitled to
31-48 supplemental income benefits or the amount of supplemental income
31-49 benefits due and the employee prevails on any disputed issue, the
31-50 insurance carrier is liable for reasonable and necessary attorney's
31-51 fees incurred by the employee as a result of the insurance
31-52 carrier's dispute and for supplemental income benefits accrued but
31-53 not paid and interest on that amount, according to Section 408.064.
31-54 Attorney's fees awarded under this subsection are not subject to
31-55 Sections 408.221(b), (e), and (h).
31-56 SECTION 3.098. Section 408.148, Labor Code, is amended to
31-57 read as follows:
31-58 Sec. 408.148. EMPLOYEE DISCHARGE AFTER TERMINATION. The
31-59 department [commission] may reinstate supplemental income benefits
31-60 to an employee who is discharged within 12 months of the date of
31-61 losing entitlement to supplemental income benefits under Section
31-62 408.146(c) if the department [commission] finds that the employee
31-63 was discharged at that time with the intent to deprive the employee
31-64 of supplemental income benefits.
31-65 SECTION 3.099. Section 408.149, Labor Code, is amended to
31-66 read as follows:
31-67 Sec. 408.149. STATUS REVIEW; BENEFIT REVIEW CONFERENCE.
31-68 (a) Not more than once in each period of 12 calendar months, an
31-69 employee and an insurance carrier each may request the department
32-1 [commission] to review the status of the employee and determine
32-2 whether the employee's unemployment or underemployment is a direct
32-3 result of impairment from the compensable injury.
32-4 (b) Either party may request a benefit review conference to
32-5 contest a determination of the department [commission] at any time,
32-6 subject only to the limits placed on the insurance carrier by
32-7 Section 408.147.
32-8 SECTION 3.100. Subsection (a), Section 408.150, Labor Code,
32-9 is amended to read as follows:
32-10 (a) The department [commission] shall refer an employee to
32-11 the Texas Rehabilitation Commission with a recommendation for
32-12 appropriate services if the department [commission] determines that
32-13 an employee entitled to supplemental income benefits could be
32-14 materially assisted by vocational rehabilitation or training in
32-15 returning to employment or returning to employment more nearly
32-16 approximating the employee's preinjury employment. The department
32-17 [commission] shall also notify insurance carriers of the need for
32-18 vocational rehabilitation or training services. The insurance
32-19 carrier may provide services through a private provider of
32-20 vocational rehabilitation services under Section 409.012.
32-21 SECTION 3.101. Subsections (b) and (c), Section 408.151,
32-22 Labor Code, are amended to read as follows:
32-23 (b) If a dispute exists as to whether the employee's medical
32-24 condition has improved sufficiently to allow the employee to return
32-25 to work, the department [commission] shall direct the employee to
32-26 be examined by a designated doctor chosen by the department
32-27 [commission]. The designated doctor shall report to the department
32-28 [commission]. The report of the designated doctor has presumptive
32-29 weight, and the commission shall base its determination of whether
32-30 the employee's medical condition has improved sufficiently to allow
32-31 the employee to return to work on that report unless the great
32-32 weight of the other medical evidence is to the contrary.
32-33 (c) The department [commission] may require an employee to
32-34 whom Subsection (a) applies to submit to a medical examination
32-35 under Section 408.004 only to determine whether the employee's
32-36 medical condition is a direct result of impairment from a
32-37 compensable injury.
32-38 SECTION 3.102. Subsection (d), Section 408.161, Labor Code,
32-39 is amended to read as follows:
32-40 (d) An insurance carrier may pay lifetime income benefits
32-41 through an annuity if the annuity agreement meets the terms and
32-42 conditions for annuity agreements adopted by the commissioner
32-43 [commission] by rule. The establishment of an annuity under this
32-44 subsection does not relieve the insurance carrier of the liability
32-45 under this title for ensuring that the lifetime income benefits are
32-46 paid.
32-47 SECTION 3.103. Subsections (c) and (d), Section 408.181,
32-48 Labor Code, are amended to read as follows:
32-49 (c) The commissioner [commission] by rule shall establish
32-50 requirements for agreements under which death benefits may be paid
32-51 monthly. Death benefits may be paid monthly only:
32-52 (1) on the request of the legal beneficiary and the
32-53 agreement of the legal beneficiary and the insurance carrier; and
32-54 (2) in compliance with the requirements adopted by the
32-55 commissioner [commission].
32-56 (d) An insurance carrier may pay death benefits through an
32-57 annuity if the annuity agreement meets the terms and conditions for
32-58 annuity agreements adopted by the commissioner [commission] by
32-59 rule. The establishment of an annuity under this subsection does
32-60 not relieve the insurance carrier of the liability under this title
32-61 for ensuring that the death benefits are paid.
32-62 SECTION 3.104. Subsection (f), Section 408.182, Labor Code,
32-63 is amended to read as follows:
32-64 (f) In this section:
32-65 (1) "Eligible child" means a child of a deceased
32-66 employee if the child is:
32-67 (A) a minor;
32-68 (B) enrolled as a full-time student in an
32-69 accredited educational institution and is less than 25 years of
33-1 age; or
33-2 (C) a dependent of the deceased employee at the
33-3 time of the employee's death.
33-4 (2) "Eligible grandchild" means a grandchild of a
33-5 deceased employee who is a dependent of the deceased employee and
33-6 whose parent is not an eligible child.
33-7 (3) "Eligible spouse" means the surviving spouse of a
33-8 deceased employee unless the spouse abandoned the employee for
33-9 longer than the year immediately preceding the death without good
33-10 cause, as determined by the department [commission].
33-11 SECTION 3.105. Subsection (b), Section 408.183, Labor Code,
33-12 is amended to read as follows:
33-13 (b) An eligible spouse is entitled to receive death benefits
33-14 for life or until remarriage. On remarriage, the eligible spouse
33-15 is entitled to receive 104 weeks of death benefits, commuted as
33-16 provided by commissioner [commission] rule.
33-17 SECTION 3.106. Subsection (c), Section 408.187, Labor Code,
33-18 is amended to read as follows:
33-19 (c) The department [commission] shall require the insurance
33-20 carrier to pay the costs of a procedure ordered under this section.
33-21 SECTION 3.107. Section 408.202, Labor Code, is amended to
33-22 read as follows:
33-23 Sec. 408.202. ASSIGNABILITY OF BENEFITS. Benefits are not
33-24 assignable, except a legal beneficiary may, with the department's
33-25 [commission] approval, assign the right to death benefits.
33-26 SECTION 3.108. Subsections (a) through (f), Section 408.221,
33-27 Labor Code, are amended to read as follows:
33-28 (a) An attorney's fee, including a contingency fee, for
33-29 representing a claimant before the department [commission] or court
33-30 under this subtitle must be approved by the department [commission]
33-31 or court.
33-32 (b) Except as otherwise provided, an attorney's fee under
33-33 this section is based on the attorney's time and expenses according
33-34 to written evidence presented to the department [commission] or
33-35 court. Except as provided by Section 408.147(c), the attorney's
33-36 fee shall be paid from the claimant's recovery.
33-37 (c) In approving an attorney's fee under this section, the
33-38 department [commission] or court shall consider:
33-39 (1) the time and labor required;
33-40 (2) the novelty and difficulty of the questions
33-41 involved;
33-42 (3) the skill required to perform the legal services
33-43 properly;
33-44 (4) the fee customarily charged in the locality for
33-45 similar legal services;
33-46 (5) the amount involved in the controversy;
33-47 (6) the benefits to the claimant that the attorney is
33-48 responsible for securing; and
33-49 (7) the experience and ability of the attorney
33-50 performing the services.
33-51 (d) The commissioner [commission] by rule or the court may
33-52 provide for the commutation of an attorney's fee, except that the
33-53 attorney's fee shall be paid in periodic payments in a claim
33-54 involving death benefits if the only dispute is as to the proper
33-55 beneficiary or beneficiaries.
33-56 (e) The commissioner [commission] by rule shall provide
33-57 guidelines for maximum attorney's fees for specific services in
33-58 accordance with this section.
33-59 (f) An attorney's fee may not be allowed in a case involving
33-60 a fatal injury or lifetime income benefit if the insurance carrier
33-61 admits liability on all issues and tenders payment of maximum
33-62 benefits in writing under this subtitle while the claim is pending
33-63 before the department [commission].
33-64 SECTION 3.109. Section 408.222, Labor Code, is amended to
33-65 read as follows:
33-66 Sec. 408.222. ATTORNEY'S FEES PAID TO DEFENSE COUNSEL.
33-67 (a) The amount of an attorney's fee for defending an insurance
33-68 carrier in a workers' compensation action brought under this
33-69 subtitle must be approved by the department [commission] or court
34-1 and determined by the department [commission] or court to be
34-2 reasonable and necessary.
34-3 (b) In determining whether a fee is reasonable under this
34-4 section, the department [commission] or court shall consider issues
34-5 analogous to those listed under Section 408.221(c). The defense
34-6 counsel shall present written evidence to the department
34-7 [commission] or court relating to:
34-8 (1) the time spent and expenses incurred in defending
34-9 the case; and
34-10 (2) other evidence considered necessary by the
34-11 department [commission] or court in making a determination under
34-12 this section.
34-13 SECTION 3.110. Section 409.002, Labor Code, is amended to
34-14 read as follows:
34-15 Sec. 409.002. FAILURE TO FILE NOTICE OF INJURY. Failure to
34-16 notify an employer as required by Section 409.001(a) relieves the
34-17 employer and the employer's insurance carrier of liability under
34-18 this subtitle unless:
34-19 (1) the employer, a person eligible to receive notice
34-20 under Section 409.001(b), or the employer's insurance carrier has
34-21 actual knowledge of the employee's injury;
34-22 (2) the department [commission] determines that good
34-23 cause exists for failure to provide notice in a timely manner; or
34-24 (3) the employer or the employer's insurance carrier
34-25 does not contest the claim.
34-26 SECTION 3.111. Section 409.003, Labor Code, is amended to
34-27 read as follows:
34-28 Sec. 409.003. CLAIM FOR COMPENSATION. An employee or a
34-29 person acting on the employee's behalf shall file with the
34-30 department [commission] a claim for compensation for an injury not
34-31 later than one year after the date on which:
34-32 (1) the injury occurred; or
34-33 (2) if the injury is an occupational disease, the
34-34 employee knew or should have known that the disease was related to
34-35 the employee's employment.
34-36 SECTION 3.112. Section 409.004, Labor Code, is amended to
34-37 read as follows:
34-38 Sec. 409.004. FAILURE TO FILE CLAIM FOR COMPENSATION.
34-39 Failure to file a claim for compensation with the department
34-40 [commission] as required under Section 409.003 relieves the
34-41 employer and the employer's insurance carrier of liability under
34-42 this subtitle unless:
34-43 (1) good cause exists for failure to file a claim in a
34-44 timely manner; or
34-45 (2) the employer or the employer's insurance carrier
34-46 does not contest the claim.
34-47 SECTION 3.113. Subsections (d), (e), (f), (h), and (i),
34-48 Section 409.005, Labor Code, are amended to read as follows:
34-49 (d) The insurance carrier shall file the report of the
34-50 injury on behalf of the policyholder. Except as provided by
34-51 Subsection (e), the insurance carrier must electronically file the
34-52 report with the department [commission] not later than the seventh
34-53 day after the date on which the carrier receives the report from
34-54 the employer.
34-55 (e) The commissioner [executive director] may waive the
34-56 electronic filing requirement under Subsection (d) and allow an
34-57 insurance carrier to mail or deliver the report to the department
34-58 [commission] not later than the seventh day after the date on which
34-59 the carrier receives the report from the employer.
34-60 (f) A report required under this section may not be
34-61 considered to be an admission by or evidence against an employer or
34-62 an insurance carrier in a proceeding before the department
34-63 [commission] or a court in which the facts set out in the report
34-64 are contradicted by the employer or insurance carrier.
34-65 (h) The commissioner [commission] may adopt rules relating
34-66 to:
34-67 (1) the information that must be contained in a report
34-68 required under this section, including the summary of rights and
34-69 responsibilities required under Subsection (g); and
35-1 (2) the development and implementation of an
35-2 electronic filing system for injury reports under this section.
35-3 (i) An employer and insurance carrier shall file subsequent
35-4 reports as required by commissioner [commission] rule.
35-5 SECTION 3.114. Subsections (b) and (c), Section 409.006,
35-6 Labor Code, are amended to read as follows:
35-7 (b) The record shall be available to the department
35-8 [commission] at reasonable times and under conditions prescribed by
35-9 the department [commission].
35-10 (c) The commissioner [commission] may adopt rules relating
35-11 to the information that must be contained in an employer record
35-12 under this section.
35-13 SECTION 3.115. Subsection (a), Section 409.007, Labor Code,
35-14 is amended to read as follows:
35-15 (a) A person must file a claim for death benefits with the
35-16 department [commission] not later than the first anniversary of the
35-17 date of the employee's death.
35-18 SECTION 3.116. Section 409.009, Labor Code, is amended to
35-19 read as follows:
35-20 Sec. 409.009. SUBCLAIMS. A person may file a written claim
35-21 with the department [commission] as a subclaimant if the person
35-22 has:
35-23 (1) provided compensation, including health care
35-24 provided by a health care insurer, directly or indirectly, to or
35-25 for an employee or legal beneficiary; and
35-26 (2) sought and been refused reimbursement from the
35-27 insurance carrier.
35-28 SECTION 3.117. Section 409.010, Labor Code, is amended to
35-29 read as follows:
35-30 Sec. 409.010. INFORMATION PROVIDED TO EMPLOYEE OR LEGAL
35-31 BENEFICIARY. Immediately on receiving notice of an injury or death
35-32 from any person, the department [commission] shall mail to the
35-33 employee or legal beneficiary a clear and concise description of:
35-34 (1) the services provided by the department
35-35 [commission], including the services of the ombudsman program;
35-36 (2) the department's [commission's] procedures; and
35-37 (3) the person's rights and responsibilities under
35-38 this subtitle.
35-39 SECTION 3.118. Subsections (a) and (c), Section 409.011,
35-40 Labor Code, are amended to read as follows:
35-41 (a) Immediately on receiving notice of an injury or death
35-42 from any person, the department [commission] shall mail to the
35-43 employer a description of:
35-44 (1) the services provided by the department
35-45 [commission];
35-46 (2) the department's [commission's] procedures; and
35-47 (3) the employer's rights and responsibilities under
35-48 this subtitle.
35-49 (c) The department [commission] is not required to provide
35-50 the information to an employer more than once during a calendar
35-51 year.
35-52 SECTION 3.119. Section 409.012, Labor Code, is amended to
35-53 read as follows:
35-54 Sec. 409.012. VOCATIONAL REHABILITATION INFORMATION.
35-55 (a) The department [commission] shall analyze each report of
35-56 injury received from an employer under this chapter to determine
35-57 whether the injured employee would be assisted by vocational
35-58 rehabilitation.
35-59 (b) If the department [commission] determines that an
35-60 injured employee would be assisted by vocational rehabilitation,
35-61 the department [commission] shall notify the injured employee in
35-62 writing of the services and facilities available through the Texas
35-63 Rehabilitation Commission and private providers of vocational
35-64 rehabilitation. The department [commission] shall notify the Texas
35-65 Rehabilitation Commission and the affected insurance carrier that
35-66 the injured employee has been identified as one who could be
35-67 assisted by vocational rehabilitation.
35-68 (c) The department [commission] shall cooperate with the
35-69 Texas Rehabilitation Commission and private providers of vocational
36-1 rehabilitation in the provision of services and facilities to
36-2 employees by the Texas Rehabilitation Commission.
36-3 (d) A private provider of vocational rehabilitation services
36-4 may register with the department [commission].
36-5 (e) The commissioner [commission] by rule may require that a
36-6 private provider of vocational rehabilitation services maintain
36-7 certain credentials and qualifications in order to provide services
36-8 in connection with a workers' compensation insurance claim.
36-9 SECTION 3.120. Section 409.013, Labor Code, is amended to
36-10 read as follows:
36-11 Sec. 409.013. PLAIN LANGUAGE INFORMATION; NOTIFICATION OF
36-12 INJURED WORKER. (a) The department [commission] shall develop
36-13 information for public dissemination about the benefit process and
36-14 the compensation procedures established under this chapter. The
36-15 information must be written in plain language and must be available
36-16 in English and Spanish.
36-17 (b) On receipt of a report under Section 409.005, the
36-18 department [commission] shall contact the affected employee by mail
36-19 or by telephone and shall provide the information required under
36-20 Subsection (a) to that employee, together with any other
36-21 information that may be prepared by the department [commission] for
36-22 public dissemination that relates to the employee's situation, such
36-23 as information relating to back injuries or occupational diseases.
36-24 SECTION 3.121. Subsections (a) and (b), Section 409.021,
36-25 Labor Code, are amended to read as follows:
36-26 (a) An insurance carrier shall initiate compensation under
36-27 this subtitle promptly. Not later than the seventh day after the
36-28 date on which an insurance carrier receives written notice of an
36-29 injury, the insurance carrier shall:
36-30 (1) begin the payment of benefits as required by this
36-31 subtitle; or
36-32 (2) notify the department [commission] and the
36-33 employee in writing of its refusal to pay and advise the employee
36-34 of:
36-35 (A) the right to request a benefit review
36-36 conference; and
36-37 (B) the means to obtain additional information
36-38 from the department [commission].
36-39 (b) An insurance carrier shall notify the department
36-40 [commission] in writing of the initiation of income or death
36-41 benefit payments in the manner prescribed by commissioner
36-42 [commission] rules.
36-43 SECTION 3.122. Subsection (c), Section 409.022, Labor Code,
36-44 is amended to read as follows:
36-45 (c) An insurance carrier commits a violation if the
36-46 insurance carrier does not have reasonable grounds for a refusal to
36-47 pay benefits, as determined by the department [commission]. A
36-48 violation under this subsection is a Class B administrative
36-49 violation.
36-50 SECTION 3.123. Subsection (a), Section 409.023, Labor Code,
36-51 is amended to read as follows:
36-52 (a) An insurance carrier shall continue to pay benefits
36-53 promptly as and when the benefits accrue without a final decision,
36-54 order, or other action of the department [commission], except as
36-55 otherwise provided.
36-56 SECTION 3.124. Subsection (b), Section 409.0231, Labor Code,
36-57 is amended to read as follows:
36-58 (b) The commissioner [commission] shall adopt rules in
36-59 consultation with the Texas Department of Information Resources as
36-60 necessary to implement this section, including rules prescribing a
36-61 period of benefits that is of sufficient duration to allow payment
36-62 by electronic funds transfer.
36-63 SECTION 3.125. Section 409.024, Labor Code, is amended to
36-64 read as follows:
36-65 Sec. 409.024. TERMINATION OR REDUCTION OF BENEFITS; NOTICE;
36-66 ADMINISTRATIVE VIOLATION. (a) An insurance carrier shall file
36-67 with the department [commission] a notice of termination or
36-68 reduction of benefits, including the reasons for the termination or
36-69 reduction, not later than the 10th day after the date on which
37-1 benefits are terminated or reduced.
37-2 (b) An insurance carrier commits a violation if the
37-3 insurance carrier does not have reasonable grounds to terminate or
37-4 reduce benefits, as determined by the department [commission]. A
37-5 violation under this subsection is a Class B administrative
37-6 violation.
37-7 SECTION 3.126. Subsection (a), Section 409.041, Labor Code,
37-8 is amended to read as follows:
37-9 (a) The department [commission] shall maintain an ombudsman
37-10 program as provided by this subchapter to assist injured workers
37-11 and persons claiming death benefits in obtaining benefits under
37-12 this subtitle.
37-13 SECTION 3.127. Subsections (a) and (c), Section 409.042,
37-14 Labor Code, are amended to read as follows:
37-15 (a) At least one specially qualified employee in each
37-16 department [commission] office shall be designated an ombudsman who
37-17 shall perform the duties under this section as the person's primary
37-18 responsibility.
37-19 (c) The commissioner [commission] by rule shall adopt
37-20 training guidelines and continuing education requirements for
37-21 ombudsmen. Training provided under this subsection must:
37-22 (1) include education regarding this subtitle, rules
37-23 adopted under this subtitle, and appeals panel decisions, with
37-24 emphasis on benefits and the dispute resolution process; and
37-25 (2) require an ombudsman undergoing training to be
37-26 observed and monitored by an experienced ombudsman during daily
37-27 activities conducted under this subchapter.
37-28 SECTION 3.128. Subsection (a), Section 409.043, Labor Code,
37-29 is amended to read as follows:
37-30 (a) Each employer shall notify its employees of the
37-31 ombudsman program in a manner prescribed by the commissioner
37-32 [commission].
37-33 SECTION 3.129. Section 409.044, Labor Code, is amended to
37-34 read as follows:
37-35 Sec. 409.044. PUBLIC INFORMATION. The department
37-36 [commission] shall widely disseminate information about the
37-37 ombudsman program.
37-38 SECTION 3.130. Section 410.002, Labor Code, is amended to
37-39 read as follows:
37-40 Sec. 410.002. LAW GOVERNING LIABILITY PROCEEDINGS. A
37-41 proceeding before the department [commission] to determine the
37-42 liability of an insurance carrier for compensation for an injury or
37-43 death under this subtitle is governed by this chapter.
37-44 SECTION 3.131. Section 410.004, Labor Code, is amended to
37-45 read as follows:
37-46 Sec. 410.004. DIVISION OF HEARINGS. The division shall
37-47 conduct benefit review conferences, contested case hearings,
37-48 arbitration, and appeals within the department [commission] related
37-49 to workers' compensation claims.
37-50 SECTION 3.132. Subsection (a), Section 410.005, Labor Code,
37-51 is amended to read as follows:
37-52 (a) Unless the department [commission] determines that good
37-53 cause exists for the selection of a different location, a benefit
37-54 review conference or a contested case hearing may not be conducted
37-55 at a site more than 75 miles from the claimant's residence at the
37-56 time of the injury.
37-57 SECTION 3.133. Section 410.021, Labor Code, is amended to
37-58 read as follows:
37-59 Sec. 410.021. PURPOSE. A benefit review conference is a
37-60 nonadversarial, informal dispute resolution proceeding designed to:
37-61 (1) explain, orally and in writing, the rights of the
37-62 respective parties to a workers' compensation claim and the
37-63 procedures necessary to protect those rights;
37-64 (2) discuss the facts of the claim, review available
37-65 information in order to evaluate the claim, and delineate the
37-66 disputed issues; and
37-67 (3) mediate and resolve disputed issues by agreement
37-68 of the parties in accordance with this subtitle and the policies of
37-69 the department [commission].
38-1 SECTION 3.134. Subsections (b) and (c), Section 410.022,
38-2 Labor Code, are amended to read as follows:
38-3 (b) A benefit review officer must:
38-4 (1) be an employee of the department [commission]; and
38-5 (2) be trained in the principles and procedures of
38-6 dispute mediation.
38-7 (c) The department [commission] shall institute and maintain
38-8 an education and training program for benefit review officers and
38-9 shall consult or contract with the Federal Mediation and
38-10 Conciliation Service or other appropriate organizations for this
38-11 purpose.
38-12 SECTION 3.135. Section 410.023, Labor Code, is amended to
38-13 read as follows:
38-14 Sec. 410.023. REQUEST FOR BENEFIT REVIEW CONFERENCE. On
38-15 receipt of a request from a party or on its own motion, the
38-16 department [commission] may direct the parties to a disputed
38-17 workers' compensation claim to meet in a benefit review conference
38-18 to attempt to reach agreement on disputed issues involved in the
38-19 claim.
38-20 SECTION 3.136. Section 410.024, Labor Code, is amended to
38-21 read as follows:
38-22 Sec. 410.024. BENEFIT REVIEW CONFERENCE AS PREREQUISITE TO
38-23 FURTHER PROCEEDINGS ON CERTAIN CLAIMS. (a) Except as otherwise
38-24 provided by law or commissioner [commission] rule, the parties to a
38-25 disputed compensation claim are not entitled to a contested case
38-26 hearing or arbitration on the claim unless a benefit review
38-27 conference is conducted as provided by this subchapter.
38-28 (b) The commissioner [commission] by rule shall adopt
38-29 guidelines relating to claims that do not require a benefit review
38-30 conference and may proceed directly to a contested case hearing or
38-31 arbitration.
38-32 SECTION 3.137. Section 410.025, Labor Code, is amended to
38-33 read as follows:
38-34 Sec. 410.025. SCHEDULING OF BENEFIT REVIEW CONFERENCE;
38-35 NOTICE. (a) The commissioner [commission] by rule shall prescribe
38-36 the time within which a benefit review conference must be
38-37 scheduled.
38-38 (b) At the time a benefit review conference is scheduled,
38-39 the department [commission] shall schedule a contested case hearing
38-40 to be held not later than the 60th day after the date of the
38-41 benefit review conference if the disputed issues are not resolved
38-42 at the benefit review conference.
38-43 (c) The department [commission] shall send written notice of
38-44 the benefit review conference to the parties to the claim and the
38-45 employer.
38-46 (d) The commissioner [commission] by rule shall provide for
38-47 expedited proceedings in cases in which compensability or liability
38-48 for essential medical treatment is in dispute.
38-49 SECTION 3.138. Subsection (a), Section 410.026, Labor Code,
38-50 is amended to read as follows:
38-51 (a) A benefit review officer shall:
38-52 (1) mediate disputes between the parties and assist in
38-53 the adjustment of the claim consistent with this subtitle and the
38-54 policies of the department [commission];
38-55 (2) thoroughly inform all parties of their rights and
38-56 responsibilities under this subtitle, especially in a case in which
38-57 the employee is not represented by an attorney or other
38-58 representative; and
38-59 (3) ensure that all documents and information relating
38-60 to the employee's wages, medical condition, and any other
38-61 information pertinent to the resolution of disputed issues are
38-62 contained in the claim file at the conference, especially in a case
38-63 in which the employee is not represented by an attorney or other
38-64 representative.
38-65 SECTION 3.139. Subsection (a), Section 410.027, Labor Code,
38-66 is amended to read as follows:
38-67 (a) The commissioner [commission] shall adopt rules for
38-68 conducting benefit review conferences.
38-69 SECTION 3.140. Section 410.030, Labor Code, is amended to
39-1 read as follows:
39-2 Sec. 410.030. BINDING EFFECT OF AGREEMENT. (a) An
39-3 agreement signed in accordance with Section 410.029 is binding on
39-4 the insurance carrier through the conclusion of all matters
39-5 relating to the claim, unless the department [commission] or a
39-6 court, on a finding of fraud, newly discovered evidence, or other
39-7 good and sufficient cause, relieves the insurance carrier of the
39-8 effect of the agreement.
39-9 (b) The agreement is binding on the claimant, if represented
39-10 by an attorney, to the same extent as on the insurance carrier. If
39-11 the claimant is not represented by an attorney, the agreement is
39-12 binding on the claimant through the conclusion of all matters
39-13 relating to the claim while the claim is pending before the
39-14 department [commission], unless the department [commission] for
39-15 good cause relieves the claimant of the effect of the agreement.
39-16 SECTION 3.141. Subsection (b), Section 410.034, Labor Code,
39-17 is amended to read as follows:
39-18 (b) The commissioner [commission] by rule shall prescribe
39-19 the times within which the agreement and report must be filed.
39-20 SECTION 3.142. Section 410.102, Labor Code, is amended to
39-21 read as follows:
39-22 Sec. 410.102. ARBITRATORS; QUALIFICATIONS. (a) An
39-23 arbitrator must be an employee of the department [commission],
39-24 except that the department [commission] may contract with qualified
39-25 arbitrators on a determination of special need.
39-26 (b) An arbitrator must:
39-27 (1) be a member of the National Academy of
39-28 Arbitrators;
39-29 (2) be on an approved list of the American Arbitration
39-30 Association or Federal Mediation and Conciliation Service; or
39-31 (3) meet qualifications established by the
39-32 commissioner [commission] by rule [and be approved by an
39-33 affirmative vote of at least two commission members representing
39-34 employers of labor and at least two commission members representing
39-35 wage earners].
39-36 (c) The department [commission] shall require that each
39-37 arbitrator have appropriate training in the workers' compensation
39-38 laws of this state. The department [commission] shall establish
39-39 procedures to carry out this subsection.
39-40 SECTION 3.143. Section 410.103, Labor Code, is amended to
39-41 read as follows:
39-42 Sec. 410.103. DUTIES OF ARBITRATOR. An arbitrator shall:
39-43 (1) protect the interests of all parties;
39-44 (2) ensure that all relevant evidence has been
39-45 disclosed to the arbitrator and to all parties; and
39-46 (3) render an award consistent with this subtitle and
39-47 the policies of the department [commission].
39-48 SECTION 3.144. Subsections (b) and (c), Section 410.104,
39-49 Labor Code, are amended to read as follows:
39-50 (b) To elect arbitration, the parties must file the election
39-51 with the department [commission] not later than the 20th day after
39-52 the last day of the benefit review conference. The department
39-53 [commission] shall prescribe a form for that purpose.
39-54 (c) An election to engage in arbitration under this
39-55 subchapter is irrevocable and binding on all parties for the
39-56 resolution of all disputes arising out of the claims that are under
39-57 the jurisdiction of the department [commission].
39-58 SECTION 3.145. Section 410.105, Labor Code, is amended to
39-59 read as follows:
39-60 Sec. 410.105. LISTS OF ARBITRATORS. (a) The department
39-61 [commission] shall establish regional lists of arbitrators who meet
39-62 the qualifications prescribed under Sections 410.102(a) and (b).
39-63 Each regional list shall be initially prepared in a random name
39-64 order, and subsequent additions to a list shall be added
39-65 chronologically.
39-66 (b) The department [commission] shall review the lists of
39-67 arbitrators annually and determine if each arbitrator is fair and
39-68 impartial and makes awards that are consistent with and in
39-69 accordance with this subtitle and the rules of the commissioner
40-1 [commission]. The commissioner may [commission shall] remove an
40-2 arbitrator [if after review the arbitrator does not receive an
40-3 affirmative vote of at least two commission members representing
40-4 employers of labor and at least two commission members representing
40-5 wage earners].
40-6 (c) The department's [commission's] lists are confidential
40-7 and are not subject to disclosure under Chapter 552, Government
40-8 Code. The lists may not be revealed by any department [commission]
40-9 employee to any person who is not a department [commission]
40-10 employee. The lists are exempt from discovery in civil litigation
40-11 unless the party seeking the discovery establishes reasonable cause
40-12 to believe that a violation of the requirements of this section or
40-13 Section 410.106, 410.107, 410.108, or 410.109(b) occurred and that
40-14 the violation is relevant to the issues in dispute.
40-15 SECTION 3.146. Section 410.106, Labor Code, is amended to
40-16 read as follows:
40-17 Sec. 410.106. SELECTION OF ARBITRATOR. The department
40-18 [commission] shall assign the arbitrator for a particular case by
40-19 selecting the next name after the previous case's selection in
40-20 consecutive order. The department [commission] may not change the
40-21 order of names once the order is established under this subchapter,
40-22 except that once each arbitrator on the list has been assigned to a
40-23 case, the names shall be randomly reordered.
40-24 SECTION 3.147. Subsection (a), Section 410.107, Labor Code,
40-25 is amended to read as follows:
40-26 (a) The department [commission] shall assign an arbitrator
40-27 to a pending case not later than the 30th day after the date on
40-28 which the election for arbitration is filed with the department
40-29 [commission].
40-30 SECTION 3.148. Subsection (a), Section 410.108, Labor Code,
40-31 is amended to read as follows:
40-32 (a) Each party is entitled, in its sole discretion, to one
40-33 rejection of the arbitrator in each case. If a party rejects the
40-34 arbitrator, the department [commission] shall assign another
40-35 arbitrator as provided by Section 410.106.
40-36 SECTION 3.149. Section 410.109, Labor Code, is amended to
40-37 read as follows:
40-38 Sec. 410.109. SCHEDULING OF ARBITRATION. (a) The
40-39 arbitrator shall schedule arbitration to be held not later than the
40-40 30th day after the date of the arbitrator's assignment and shall
40-41 notify the parties and the department [commission] of the scheduled
40-42 date.
40-43 (b) If an arbitrator is unable to schedule arbitration in
40-44 accordance with Subsection (a), the department [commission] shall
40-45 appoint the next arbitrator on the applicable list. Each party is
40-46 entitled to reject the arbitrator appointed under this subsection
40-47 in the manner provided under Section 410.108.
40-48 SECTION 3.150. Section 410.111, Labor Code, is amended to
40-49 read as follows:
40-50 Sec. 410.111. RULES. The commissioner [commission] shall
40-51 adopt rules for arbitration consistent with generally recognized
40-52 arbitration principles and procedures.
40-53 SECTION 3.151. Subsection (b), Section 410.114, Labor Code,
40-54 is amended to read as follows:
40-55 (b) The department [commission] shall make an electronic
40-56 recording of the proceeding.
40-57 SECTION 3.152. Subsection (d), Section 410.118, Labor Code,
40-58 is amended to read as follows:
40-59 (d) The arbitrator shall file a copy of the award as part of
40-60 the permanent claim file at the department [commission] and shall
40-61 notify the parties in writing of the decision.
40-62 SECTION 3.153. Subsection (b), Section 410.119, Labor Code,
40-63 is amended to read as follows:
40-64 (b) An arbitrator's award is a final order of the department
40-65 [commission].
40-66 SECTION 3.154. Subsections (a) and (b), Section 410.121,
40-67 Labor Code, are amended to read as follows:
40-68 (a) On application of an aggrieved party, a court of
40-69 competent jurisdiction shall vacate an arbitrator's award on a
41-1 finding that:
41-2 (1) the award was procured by corruption, fraud, or
41-3 misrepresentation;
41-4 (2) the decision of the arbitrator was arbitrary and
41-5 capricious; or
41-6 (3) the award was outside the jurisdiction of the
41-7 department [commission].
41-8 (b) If an award is vacated, the case shall be remanded to
41-9 the department [commission] for another arbitration proceeding.
41-10 SECTION 3.155. Subsection (b), Section 410.151, Labor Code,
41-11 is amended to read as follows:
41-12 (b) An issue that was not raised at a benefit review
41-13 conference or that was resolved at a benefit review conference may
41-14 not be considered unless:
41-15 (1) the parties consent; or
41-16 (2) if the issue was not raised, the department
41-17 [commission] determines that good cause existed for not raising the
41-18 issue at the conference.
41-19 SECTION 3.156. Section 410.153, Labor Code, is amended to
41-20 read as follows:
41-21 Sec. 410.153. APPLICATION OF ADMINISTRATIVE PROCEDURE ACT.
41-22 Chapter 2001, Government Code, applies to a contested case hearing
41-23 to the extent that the commissioner [commission] finds appropriate,
41-24 except that the following do not apply:
41-25 (1) Section 2001.054;
41-26 (2) Sections 2001.061 and 2001.062;
41-27 (3) Section 2001.202; and
41-28 (4) Subchapters F, G, I, and Z, except for Section
41-29 2001.141(c).
41-30 SECTION 3.157. Section 410.154, Labor Code, is amended to
41-31 read as follows:
41-32 Sec. 410.154. SCHEDULING OF HEARING. The department
41-33 [commission] shall schedule a contested case hearing in accordance
41-34 with Section 410.024 or 410.025(b).
41-35 SECTION 3.158. Section 410.155, Labor Code, is amended to
41-36 read as follows:
41-37 Sec. 410.155. CONTINUANCE. (a) A written request by a
41-38 party for a continuance of a contested case hearing to another date
41-39 must be directed to the department [commission].
41-40 (b) The department [commission] may grant a continuance only
41-41 if the department [commission] determines that there is good cause
41-42 for the continuance.
41-43 SECTION 3.159. Section 410.157, Labor Code, is amended to
41-44 read as follows:
41-45 Sec. 410.157. RULES. The commissioner [commission] shall
41-46 adopt rules governing procedures under which contested case
41-47 hearings are conducted.
41-48 SECTION 3.160. Subsection (a), Section 410.158, Labor Code,
41-49 is amended to read as follows:
41-50 (a) Except as provided by Section 410.162, discovery is
41-51 limited to:
41-52 (1) depositions on written questions to any health
41-53 care provider;
41-54 (2) depositions of other witnesses as permitted by the
41-55 hearing officer for good cause shown; and
41-56 (3) interrogatories as prescribed by the department
41-57 [commission].
41-58 SECTION 3.161. Section 410.159, Labor Code, is amended to
41-59 read as follows:
41-60 Sec. 410.159. STANDARD INTERROGATORIES. (a) The
41-61 commissioner [commission] by rule shall prescribe standard form
41-62 sets of interrogatories to elicit information from claimants and
41-63 insurance carriers.
41-64 (b) Standard interrogatories shall be answered by each party
41-65 and served on the opposing party within the time prescribed by
41-66 commissioner [commission] rule, unless the parties agree otherwise.
41-67 SECTION 3.162. Section 410.160, Labor Code, is amended to
41-68 read as follows:
41-69 Sec. 410.160. EXCHANGE OF INFORMATION. Within the time
42-1 prescribed by commissioner [commission] rule, the parties shall
42-2 exchange:
42-3 (1) all medical reports and reports of expert
42-4 witnesses who will be called to testify at the hearing;
42-5 (2) all medical records;
42-6 (3) any witness statements;
42-7 (4) the identity and location of any witness known to
42-8 the parties to have knowledge of relevant facts; and
42-9 (5) all photographs or other documents that a party
42-10 intends to offer into evidence at the hearing.
42-11 SECTION 3.163. Section 410.161, Labor Code, is amended to
42-12 read as follows:
42-13 Sec. 410.161. FAILURE TO DISCLOSE INFORMATION. A party who
42-14 fails to disclose information known to the party or documents that
42-15 are in the party's possession, custody, or control at the time
42-16 disclosure is required by Sections 410.158-410.160 may not
42-17 introduce the evidence at any subsequent proceeding before the
42-18 department [commission] or in court on the claim unless good cause
42-19 is shown for not having disclosed the information or documents
42-20 under those sections.
42-21 SECTION 3.164. Subsections (d) and (e), Section 410.168,
42-22 Labor Code, are amended to read as follows:
42-23 (d) On a form that the commissioner [commission] by rule
42-24 prescribes, the hearing officer shall issue a separate written
42-25 decision regarding attorney's fees and any matter related to
42-26 attorney's fees. The decision regarding attorney's fees and the
42-27 form may not be made known to a jury in a judicial review of an
42-28 award, including an appeal.
42-29 (e) The commissioner [commission] by rule shall prescribe
42-30 the times within which the hearing officer must file the decisions
42-31 with the division.
42-32 SECTION 3.165. Subsection (d), Section 410.203, Labor Code,
42-33 is amended to read as follows:
42-34 (d) A hearing on remand shall be accelerated and the
42-35 commissioner [commission] shall adopt rules to give priority to the
42-36 hearing over other proceedings.
42-37 SECTION 3.166. Subsection (b), Section 410.204, Labor Code,
42-38 is amended to read as follows:
42-39 (b) A copy of the decision of the appeals panel shall be
42-40 sent to each party not later than the seventh day after the date
42-41 the decision is filed with the department [commission].
42-42 SECTION 3.167. Section 410.206, Labor Code, is amended to
42-43 read as follows:
42-44 Sec. 410.206. CLERICAL ERROR. The commissioner [executive
42-45 director] may revise a decision in a contested case hearing on a
42-46 finding of clerical error.
42-47 SECTION 3.168. Section 410.207, Labor Code, is amended to
42-48 read as follows:
42-49 Sec. 410.207. CONTINUATION OF COMMISSION JURISDICTION.
42-50 During judicial review of an appeals panel decision on any disputed
42-51 issue relating to a workers' compensation claim, the department
42-52 [commission] retains jurisdiction of all other issues related to
42-53 the claim.
42-54 SECTION 3.169. Subsections (a) and (c), Section 410.208,
42-55 Labor Code, are amended to read as follows:
42-56 (a) If an insurance carrier refuses or fails to comply with
42-57 a final order or decision of the department [commission], the
42-58 claimant may bring suit in the county of the claimant's residence
42-59 or the county in which the injury occurred to enforce the award as
42-60 a final and binding order of the department [commission].
42-61 (c) A person commits a violation if the person fails or
42-62 refuses to comply with a department [commission] order or decision
42-63 within 20 days after the date the order or decision becomes final.
42-64 A violation under this subsection is a Class A administrative
42-65 violation.
42-66 SECTION 3.170. Section 410.209, Labor Code, is amended to
42-67 read as follows:
42-68 Sec. 410.209. REIMBURSEMENT FOR OVERPAYMENT. The subsequent
42-69 injury fund shall reimburse an insurance carrier for any
43-1 overpayments of benefits made under an interlocutory order or
43-2 decision if that order or decision is reversed or modified by final
43-3 arbitration, order, or decision of the department [commission] or a
43-4 court. The commissioner [commission] shall adopt rules to provide
43-5 for a periodic reimbursement schedule, providing for reimbursement
43-6 at least annually.
43-7 SECTION 3.171. Section 410.253, Labor Code, is amended to
43-8 read as follows:
43-9 Sec. 410.253. SERVICE. A copy of the petition shall be
43-10 simultaneously filed with the court and the commissioner
43-11 [commission] and served on any opposing party.
43-12 SECTION 3.172. Section 410.254, Labor Code, is amended to
43-13 read as follows:
43-14 Sec. 410.254. [COMMISSION] INTERVENTION. On timely motion
43-15 initiated by the commissioner [executive director], the department
43-16 [commission] shall be permitted to intervene in any judicial
43-17 proceeding under this subchapter or Subchapter G.
43-18 SECTION 3.173. The heading to Section 410.258, Labor Code,
43-19 is amended to read as follows:
43-20 Sec. 410.258. NOTIFICATION OF DEPARTMENT [COMMISSION] OF
43-21 PROPOSED JUDGMENTS AND SETTLEMENTS; RIGHT TO INTERVENE.
43-22 SECTION 3.174. Subsections (a), (b), (c), (d), and (e),
43-23 Section 410.258, Labor Code, are amended to read as follows:
43-24 (a) The party who initiated a proceeding under this
43-25 subchapter or Subchapter G must file any proposed judgment or
43-26 settlement made by the parties to the proceeding, including a
43-27 proposed default judgment, with the commissioner [executive
43-28 director of the commission] not later than the 30th day before the
43-29 date on which the court is scheduled to enter the judgment or
43-30 approve the settlement. The proposed judgment or settlement must
43-31 be mailed to the commissioner [executive director] by certified
43-32 mail, return receipt requested.
43-33 (b) The department [commission] may intervene in a
43-34 proceeding under Subsection (a) not later than the 30th day after
43-35 the date of receipt of the proposed judgment or settlement.
43-36 (c) The department [commission] shall review the proposed
43-37 judgment or settlement to determine compliance with all appropriate
43-38 provisions of the law. If the department [commission] determines
43-39 that the proposal is not in compliance with the law, the department
43-40 [commission] may intervene as a matter of right in the proceeding
43-41 not later than the 30th day after the date of receipt of the
43-42 proposed judgment or settlement. The court may limit the extent of
43-43 the department's [commission's] intervention to providing the
43-44 information described by Subsection (e).
43-45 (d) If the department [commission] does not intervene before
43-46 the 31st day after the date of receipt of the proposed judgment or
43-47 settlement, the court shall enter the judgment or approve the
43-48 settlement if the court determines that the proposed judgment or
43-49 settlement is in compliance with all appropriate provisions of the
43-50 law.
43-51 (e) If the department [commission] intervenes in the
43-52 proceeding, the department [commission] shall inform the court of
43-53 each reason the department [commission] believes the proposed
43-54 judgment or settlement is not in compliance with the law. The
43-55 court shall give full consideration to the information provided by
43-56 the department [commission] before entering a judgment or approving
43-57 a settlement.
43-58 SECTION 3.175. Subsection (a), Section 410.301, Labor Code,
43-59 is amended to read as follows:
43-60 (a) Judicial review of a final decision of a department
43-61 [commission] appeals panel regarding compensability or eligibility
43-62 for or the amount of income or death benefits shall be conducted as
43-63 provided by this subchapter.
43-64 SECTION 3.176. Section 410.302, Labor Code, is amended to
43-65 read as follows:
43-66 Sec. 410.302. LIMITATION OF ISSUES. A trial under this
43-67 subchapter is limited to issues decided by the department
43-68 [commission] appeals panel and on which judicial review is sought.
43-69 The pleadings must specifically set forth the determinations of the
44-1 appeals panel by which the party is aggrieved.
44-2 SECTION 3.177. Section 410.304, Labor Code, is amended to
44-3 read as follows:
44-4 Sec. 410.304. CONSIDERATION OF APPEALS PANEL DECISION.
44-5 (a) In a jury trial, the court, before submitting the case to the
44-6 jury, shall inform the jury in the court's instructions, charge, or
44-7 questions to the jury of the department [commission] appeals panel
44-8 decision on each disputed issue described by Section 410.301(a)
44-9 that is submitted to the jury.
44-10 (b) In a trial to the court without a jury, the court in
44-11 rendering its judgment on an issue described by Section 410.301(a)
44-12 shall consider the decision of the department [commission] appeals
44-13 panel.
44-14 SECTION 3.178. Subsections (b) and (c), Section 410.306,
44-15 Labor Code, are amended to read as follows:
44-16 (b) The department [commission] on payment of a reasonable
44-17 fee shall make available to the parties a certified copy of the
44-18 department's [commission's] record. All facts and evidence the
44-19 record contains are admissible to the extent allowed under the
44-20 Texas Rules of Civil Evidence.
44-21 (c) Except as provided by Section 410.307, evidence of
44-22 extent of impairment shall be limited to that presented to the
44-23 department [commission]. The court or jury, in its determination
44-24 of the extent of impairment, shall adopt one of the impairment
44-25 ratings under Subchapter G, Chapter 408.
44-26 SECTION 3.179. Subsections (a) and (d), Section 410.307,
44-27 Labor Code, are amended to read as follows:
44-28 (a) Evidence of the extent of impairment is not limited to
44-29 that presented to the department [commission] if the court, after a
44-30 hearing, finds that there is a substantial change of condition.
44-31 The court's finding of a substantial change of condition may be
44-32 based only on:
44-33 (1) medical evidence from the same doctor or doctors
44-34 whose testimony or opinion was presented to the department
44-35 [commission];
44-36 (2) evidence that has come to the party's knowledge
44-37 since the contested case hearing;
44-38 (3) evidence that could not have been discovered
44-39 earlier with due diligence by the party; and
44-40 (4) evidence that would probably produce a different
44-41 result if it is admitted into evidence at the trial.
44-42 (d) If the court finds a substantial change of condition
44-43 under this section, new medical evidence of the extent of
44-44 impairment must be from and is limited to the same doctor or
44-45 doctors who made impairment ratings before the department
44-46 [commission] under Section 408.123.
44-47 SECTION 3.180. Subsection (a), Section 410.308, Labor Code,
44-48 is amended to read as follows:
44-49 (a) The department [commission] or the Texas Department of
44-50 Insurance shall furnish any interested party in the claim with a
44-51 certified copy of the notice of the employer securing compensation
44-52 with the insurance carrier, filed with the department [commission].
44-53 SECTION 3.181. Subdivision (1), Section 411.001, Labor Code,
44-54 is amended to read as follows:
44-55 (1) "Division" means the division of workers' health
44-56 and safety of the department [commission].
44-57 SECTION 3.182. Section 411.013, Labor Code, is amended to
44-58 read as follows:
44-59 Sec. 411.013. FEDERAL CONTRACTS AND PROGRAMS. With the
44-60 approval of the commissioner [commission], the division may:
44-61 (1) enter into contracts with the federal government
44-62 to perform occupational safety projects; and
44-63 (2) apply for federal funds through any federal
44-64 program relating to occupational safety.
44-65 SECTION 3.183. Section 411.032, Labor Code, is amended to
44-66 read as follows:
44-67 Sec. 411.032. EMPLOYER INJURY AND OCCUPATIONAL DISEASE
44-68 REPORT; ADMINISTRATIVE VIOLATION. (a) An employer shall file with
44-69 the department [commission] a report of each:
45-1 (1) on-the-job injury that results in the employee's
45-2 absence from work for more than one day; and
45-3 (2) occupational disease of which the employer has
45-4 knowledge.
45-5 (b) The commissioner [commission] shall adopt rules and
45-6 prescribe the form and manner of reports filed under this section.
45-7 (c) An employer commits an administrative violation if the
45-8 employer fails to report to the department [commission] as required
45-9 under Subsection (a) unless good cause exists, as determined by the
45-10 department [commission], for the failure. A violation under this
45-11 subsection is a Class D administrative violation.
45-12 SECTION 3.184. Section 411.035, Labor Code, is amended to
45-13 read as follows:
45-14 Sec. 411.035. USE OF INJURY REPORT. A report made under
45-15 Section 411.032 may not be considered to be an admission by or
45-16 evidence against an employer or an insurance carrier in a
45-17 proceeding before the department [commission] or a court in which
45-18 the facts set out in the report are contradicted by the employer or
45-19 insurance carrier.
45-20 SECTION 3.185. Section 411.0415, Labor Code, is amended to
45-21 read as follows:
45-22 Sec. 411.0415. EXEMPTION FOR CERTAIN EMPLOYERS; HEARING.
45-23 (a) The department [executive director] may exclude from
45-24 identification as a hazardous employer an employer who presents
45-25 evidence satisfactory to the department [commission] that the
45-26 injury frequencies of the employer substantially exceed those that
45-27 may reasonably be expected in that employer's business or industry
45-28 only because of a fatality that:
45-29 (1) occurred because of factors beyond the employer's
45-30 control; or
45-31 (2) was outside the course and scope of the deceased
45-32 individual's employment.
45-33 (b) The commissioner [commission] by rule shall analyze and
45-34 list fatalities that may not be related to the work environment,
45-35 including:
45-36 (1) heart attacks;
45-37 (2) common diseases of life;
45-38 (3) homicides;
45-39 (4) suicides;
45-40 (5) vehicle accidents involving a third party;
45-41 (6) common carrier accidents; and
45-42 (7) natural events.
45-43 (c) If the department [commission] determines that the case
45-44 history of the employee's fatality indicates that the employer or
45-45 the work environment was a proximate cause of the fatality, the
45-46 department [commission] may request a hearing under Section
45-47 411.049. If the hearing establishes that a proximate cause of the
45-48 fatality was a factor or factors within the employer's control and
45-49 was within the course and scope of the employment, the department
45-50 [commission] may identify the employer for the hazardous employer
45-51 program if that fatality causes the employer to be designated as a
45-52 hazardous employer.
45-53 SECTION 3.186. Subsection (b), Section 411.042, Labor Code,
45-54 is amended to read as follows:
45-55 (b) The commissioner [commission] by rule shall require a
45-56 minimum interval of at least six months before a subsequent audit
45-57 to identify an employer who was previously identified as a
45-58 hazardous employer.
45-59 SECTION 3.187. Subsection (b), Section 411.043, Labor Code,
45-60 is amended to read as follows:
45-61 (b) The safety consultant shall file a written report with
45-62 the department [commission] and the employer setting out any
45-63 hazardous conditions or practices identified by the safety
45-64 consultation.
45-65 SECTION 3.188. Subsection (a), Section 411.045, Labor Code,
45-66 is amended to read as follows:
45-67 (a) Not earlier than six months or later than nine months
45-68 after the formulation of an accident prevention plan under Section
45-69 411.043, the division shall conduct a follow-up inspection of the
46-1 employer's premises. The department [commission] may require the
46-2 participation of the safety consultant who performed the initial
46-3 consultation and formulated the safety plan.
46-4 SECTION 3.189. Section 411.048, Labor Code, is amended to
46-5 read as follows:
46-6 Sec. 411.048. COSTS CHARGED TO EMPLOYER. (a) The
46-7 department [commission] shall charge an employer that is a
46-8 political subdivision for reimbursement of the reasonable cost of
46-9 services provided by the division, including a reasonable
46-10 allocation of the department's [commission's] administrative costs,
46-11 in formulating and monitoring the implementation of a plan under
46-12 Section 411.043 or 411.047, investigating an accident under Section
46-13 411.044, or in conducting a follow-up inspection under Section
46-14 411.045.
46-15 (b) The department [commission] shall charge a private
46-16 employer for reimbursement of the reasonable cost of services
46-17 provided by the division, including a reasonable allocation of the
46-18 department's [commission's] administrative costs, in providing
46-19 safety and health services under this program at the request of the
46-20 private employer. This subsection does not apply to services
46-21 provided to the employer under Section 411.018.
46-22 SECTION 3.190. Subsection (a), Section 411.049, Labor Code,
46-23 is amended to read as follows:
46-24 (a) An employer may request a hearing to contest findings
46-25 made by the department [commission] under this subchapter.
46-26 SECTION 3.191. Section 411.050, Labor Code, is amended to
46-27 read as follows:
46-28 Sec. 411.050. ADMISSIBILITY OF IDENTIFICATION AS HAZARDOUS
46-29 EMPLOYER. The identification of an employer as a hazardous
46-30 employer under this subchapter is not admissible in any judicial
46-31 proceeding unless:
46-32 (1) the department [commission] has determined that
46-33 the employer is not in compliance with this subchapter; and
46-34 (2) that determination has not been reversed or
46-35 superseded at the time of the event giving rise to the judicial
46-36 proceeding.
46-37 SECTION 3.192. Section 411.062, Labor Code, is amended to
46-38 read as follows:
46-39 Sec. 411.062. FIELD SAFETY REPRESENTATIVE; QUALIFICATIONS.
46-40 (a) The commissioner [commission] by rule shall establish
46-41 qualifications for field safety representatives. The rules must
46-42 include education and experience requirements for those
46-43 representatives.
46-44 (b) Each field safety representative must meet the
46-45 qualifications established by the commissioner [commission].
46-46 SECTION 3.193. Subsection (c), Section 411.064, Labor Code,
46-47 is amended to read as follows:
46-48 (c) The insurance company shall reimburse the department
46-49 [commission] for the reasonable cost of the reinspection, including
46-50 a reasonable allocation of the department's [commission's]
46-51 administrative costs incurred in conducting the inspections.
46-52 SECTION 3.194. Subsection (b), Section 411.065, Labor Code,
46-53 is amended to read as follows:
46-54 (b) The information must include:
46-55 (1) the amount of money spent by the insurance company
46-56 on accident prevention services;
46-57 (2) the number and qualifications of field safety
46-58 representatives employed by the insurance company;
46-59 (3) the number of site inspections performed;
46-60 (4) accident prevention services for which the
46-61 insurance company contracts;
46-62 (5) a breakdown of the premium size of the risks to
46-63 which services were provided;
46-64 (6) evidence of the effectiveness of and
46-65 accomplishments in accident prevention; and
46-66 (7) any additional information required by the
46-67 department [commission].
46-68 SECTION 3.195. The heading to Section 411.067, Labor Code,
46-69 is amended to read as follows:
47-1 Sec. 411.067. DEPARTMENT [COMMISSION] PERSONNEL.
47-2 SECTION 3.196. Subsection (a), Section 411.067, Labor Code,
47-3 is amended to read as follows:
47-4 (a) The department [commission] shall employ the personnel
47-5 necessary to enforce this subchapter, including at least 10 safety
47-6 inspectors to perform inspections at a job site and at an insurance
47-7 company to determine the adequacy of the accident prevention
47-8 services provided by the insurance company.
47-9 SECTION 3.197. Subsection (b), Section 411.081, Labor Code,
47-10 is amended to read as follows:
47-11 (b) Each employer shall notify its employees of this service
47-12 in a manner prescribed by the department [commission].
47-13 SECTION 3.198. Section 411.092, Labor Code, is amended to
47-14 read as follows:
47-15 Sec. 411.092. ENFORCEMENT; RULES. The department
47-16 [commission] shall enforce Section 411.091 and the commissioner may
47-17 adopt rules for that purpose.
47-18 SECTION 3.199. Subsection (b), Section 411.104, Labor Code,
47-19 is amended to read as follows:
47-20 (b) In addition to the duties specified in this chapter, the
47-21 division shall perform other duties as required by the department
47-22 [commission].
47-23 SECTION 3.200. Section 411.105, Labor Code, is amended to
47-24 read as follows:
47-25 Sec. 411.105. CONFIDENTIAL INFORMATION; PENALTY. (a) The
47-26 department [commission] and its employees may not disclose at a
47-27 public hearing or otherwise information relating to secret
47-28 processes, methods of manufacture, or products.
47-29 (b) The commissioner [A member] or an employee of the
47-30 department [commission] commits an offense if the commissioner
47-31 [member] or employee wilfully discloses or conspires to disclose
47-32 information made confidential under this section. An offense under
47-33 this subsection is a misdemeanor punishable by a fine not to exceed
47-34 $1,000 and by forfeiture of the person's appointment as
47-35 commissioner [a member] or as an employee of the department
47-36 [commission].
47-37 SECTION 3.201. Section 411.106, Labor Code, is amended to
47-38 read as follows:
47-39 Sec. 411.106. SAFETY CLASSIFICATION. (a) To establish a
47-40 safety classification for employers, the department [commission]
47-41 shall:
47-42 (1) obtain medical and compensation cost information
47-43 regularly compiled by the Texas Department of Insurance in
47-44 performing that agency's rate-making duties and functions regarding
47-45 employer liability and workers' compensation insurance; and
47-46 (2) collect and compile information relating to:
47-47 (A) the frequency rate of accidents;
47-48 (B) the existence and implementation of private
47-49 safety programs;
47-50 (C) the number of work-hour losses because of
47-51 injuries; and
47-52 (D) other facts showing accident experience.
47-53 (b) From the information obtained under Subsection (a), the
47-54 department [commission] shall classify employers as appropriate to
47-55 implement this subchapter.
47-56 SECTION 3.202. Section 411.107, Labor Code, is amended to
47-57 read as follows:
47-58 Sec. 411.107. ELIMINATION OF SAFETY IMPEDIMENTS. The
47-59 department [commission] may endeavor to eliminate an impediment to
47-60 occupational or industrial safety that is reported to the
47-61 department [commission] by an affected employer. In attempting to
47-62 eliminate an impediment the department [commission] may advise and
47-63 consult with an employer, or a representative of an employer, who
47-64 is directly involved.
47-65 SECTION 3.203. Section 411.108, Labor Code, is amended to
47-66 read as follows:
47-67 Sec. 411.108. ACCIDENT REPORTS. The department [commission]
47-68 may require an employer and any other appropriate person to report
47-69 accidents, personal injuries, fatalities, or other statistics and
48-1 information relating to accidents on forms prescribed by and
48-2 covering periods designated by the department [commission].
48-3 SECTION 3.204. Subsections (f), (g), and (j), Section
48-4 412.041, Labor Code, are amended to read as follows:
48-5 (f) In administering and enforcing Chapter 501, the director
48-6 shall act in the capacity of employer and insurer. (effective for
48-7 dates of injury before September 1, 1995.)
48-8 (1) The director shall act as an adversary before the
48-9 department [commission] and courts and present the legal defenses
48-10 and positions of the state as an employer and insurer.
48-11 (2) For the purposes of this subsection and Chapter
48-12 501, the director is entitled to the legal counsel of the attorney
48-13 general.
48-14 (3) The director is subject to the rules, orders, and
48-15 decisions of the department [commission] in the same manner as a
48-16 private employer, insurer, or association.
48-17 (g) In administering and enforcing Chapter 501, the director
48-18 shall act in the capacity of insurer. (effective for dates of
48-19 injury on or after September 1, 1995.)
48-20 (1) The director shall act as an adversary before the
48-21 department [commission] and courts and present the legal defenses
48-22 and positions of the state as an insurer.
48-23 (2) For purposes of this subsection and Chapter 501,
48-24 the director is entitled to legal counsel of the attorney general.
48-25 (3) The director is subject to the rules, orders, and
48-26 decisions of the department [commission] in the same manner as an
48-27 insurer or association.
48-28 (j) The director shall furnish copies of all rules to the
48-29 commissioner [commission] and to the administrative heads of all
48-30 state agencies affected by this chapter and Chapter 501.
48-31 SECTION 3.205. Section 413.001, Labor Code, is amended to
48-32 read as follows:
48-33 Sec. 413.001. DEFINITION. In this chapter, "division" means
48-34 the division of medical review of the department [commission].
48-35 SECTION 3.206. Section 413.002, Labor Code, is amended to
48-36 read as follows:
48-37 Sec. 413.002. DIVISION OF MEDICAL REVIEW. (a) The
48-38 department [commission] shall maintain a division of medical review
48-39 to ensure compliance with the rules and to implement this chapter
48-40 under the policies adopted by the department [commission].
48-41 (b) The division shall monitor health care providers,
48-42 insurance carriers, and workers' compensation claimants who receive
48-43 medical services to ensure the compliance of those persons with
48-44 rules adopted by the commissioner [commission] relating to health
48-45 care, including medical policies and fee guidelines.
48-46 (c) In monitoring health care providers who serve as
48-47 designated doctors under Chapter 408, the division shall evaluate
48-48 the compliance of those providers with this subtitle and with rules
48-49 adopted by the commissioner [commission] relating to medical
48-50 policies, fee guidelines, and impairment ratings.
48-51 SECTION 3.207. Section 413.003, Labor Code, is amended to
48-52 read as follows:
48-53 Sec. 413.003. AUTHORITY TO CONTRACT. The department
48-54 [commission] may contract with a private or public entity to
48-55 perform a duty or function of the division.
48-56 SECTION 3.208. Section 413.004, Labor Code, is amended to
48-57 read as follows:
48-58 Sec. 413.004. COORDINATION WITH PROVIDERS. The division
48-59 shall coordinate its activities with health care providers as
48-60 necessary to perform its duties under this chapter. The
48-61 coordination may include:
48-62 (1) conducting educational seminars on department
48-63 [commission] rules and procedures; or
48-64 (2) providing information to and requesting assistance
48-65 from professional peer review organizations.
48-66 SECTION 3.209. Subsections (a), (b), and (d), Section
48-67 413.005, Labor Code, are amended to read as follows:
48-68 (a) The medical advisory committee advises the division in
48-69 developing and administering the medical policies, fee guidelines,
49-1 and utilization guidelines established under Section 413.011. The
49-2 committee shall advise the department [commission] or professional
49-3 organization in the review and revision of medical policies and fee
49-4 guidelines required under Section 413.012.
49-5 (b) The medical advisory committee is composed of members
49-6 appointed by the commissioner [commission] as follows:
49-7 (1) a representative of a public health care facility;
49-8 (2) a representative of a private health care
49-9 facility;
49-10 (3) a doctor of medicine;
49-11 (4) a doctor of osteopathic medicine;
49-12 (5) a chiropractor;
49-13 (6) a dentist;
49-14 (7) a physical therapist;
49-15 (8) a pharmacist;
49-16 (9) a podiatrist;
49-17 (10) an occupational therapist;
49-18 (11) a medical equipment supplier;
49-19 (12) a registered nurse;
49-20 (13) a representative of employers;
49-21 (14) a representative of employees;
49-22 (15) a representative of an insurance carrier; and
49-23 (16) two representatives of the general public.
49-24 (d) The commissioner [commission] shall designate the
49-25 presiding officer of the medical advisory committee.
49-26 SECTION 3.210. Section 413.006, Labor Code, is amended to
49-27 read as follows:
49-28 Sec. 413.006. ADVISORY COMMITTEES. The commissioner
49-29 [commission] may appoint advisory committees in addition to the
49-30 medical advisory committee as it considers necessary.
49-31 SECTION 3.211. Subsections (a) and (c), Section 413.007,
49-32 Labor Code, are amended to read as follows:
49-33 (a) The division shall maintain a statewide data base of
49-34 medical charges, actual payments, and treatment protocols that may
49-35 be used by:
49-36 (1) the department [commission] in adopting the
49-37 medical policies and fee guidelines; and
49-38 (2) the division in administering the medical
49-39 policies, fee guidelines, or rules.
49-40 (c) The division shall ensure that the data base is
49-41 available for public access for a reasonable fee established by the
49-42 department [commission]. The identities of injured workers and
49-43 beneficiaries may not be disclosed.
49-44 SECTION 3.212. Subsections (a) and (b), Section 413.008,
49-45 Labor Code, are amended to read as follows:
49-46 (a) On request from the department [commission] for specific
49-47 information, an insurance carrier shall provide to the division any
49-48 information in its possession, custody, or control that reasonably
49-49 relates to the department's [commission's] duties under this
49-50 subtitle and to health care:
49-51 (1) treatment;
49-52 (2) services;
49-53 (3) fees; and
49-54 (4) charges.
49-55 (b) The department [commission] shall keep confidential
49-56 information that is confidential by law.
49-57 SECTION 3.213. Section 413.011, Labor Code, is amended to
49-58 read as follows:
49-59 Sec. 413.011. GUIDELINES AND MEDICAL POLICIES. (a) The
49-60 commissioner [commission] by rule shall establish medical policies
49-61 and guidelines relating to:
49-62 (1) fees charged or paid for medical services for
49-63 employees who suffer compensable injuries, including guidelines
49-64 relating to payment of fees for specific medical treatments or
49-65 services;
49-66 (2) use of medical services by employees who suffer
49-67 compensable injuries; and
49-68 (3) fees charged or paid for providing expert
49-69 testimony relating to an issue arising under this subtitle.
50-1 (b) Guidelines for medical services fees must be fair and
50-2 reasonable and designed to ensure the quality of medical care and
50-3 to achieve effective medical cost control. The guidelines may not
50-4 provide for payment of a fee in excess of the fee charged for
50-5 similar treatment of an injured individual of an equivalent
50-6 standard of living and paid by that individual or by someone acting
50-7 on that individual's behalf. The commissioner [commission] shall
50-8 consider the increased security of payment afforded by this
50-9 subtitle in establishing the fee guidelines.
50-10 (c) Medical policies adopted by the department [commission]
50-11 must be consistent with Sections 413.013, 413.020, 413.052, and
50-12 413.053.
50-13 (d) The commissioner [commission] by rule shall establish
50-14 medical policies relating to necessary treatments for injuries.
50-15 Medical policies shall be designed to ensure the quality of medical
50-16 care and to achieve effective medical cost control.
50-17 SECTION 3.214. Section 413.013, Labor Code, is amended to
50-18 read as follows:
50-19 Sec. 413.013. PROGRAMS. The commissioner [commission] by
50-20 rule shall establish:
50-21 (1) a program for prospective, concurrent, and
50-22 retrospective review and resolution of a dispute regarding health
50-23 care treatments and services;
50-24 (2) a program for the systematic monitoring of the
50-25 necessity of treatments administered and fees charged and paid for
50-26 medical treatments or services, including the authorization of
50-27 prospective, concurrent, or retrospective review under the medical
50-28 policies of the department [commission] to ensure that the medical
50-29 policies or guidelines are not exceeded;
50-30 (3) a program to detect practices and patterns by
50-31 insurance carriers in unreasonably denying authorization of payment
50-32 for medical services requested or performed if authorization is
50-33 required by the medical policies of the department [commission];
50-34 and
50-35 (4) a program to increase the intensity of review for
50-36 compliance with the medical policies or fee guidelines for any
50-37 health care provider that has established a practice or pattern in
50-38 charges and treatments inconsistent with the medical policies and
50-39 fee guidelines.
50-40 SECTION 3.215. Section 413.014, Labor Code, is amended to
50-41 read as follows:
50-42 Sec. 413.014. PREAUTHORIZATION. (a) The commissioner
50-43 [commission] by rule shall specify which health care treatments and
50-44 services require express preauthorization by the insurance carrier.
50-45 Treatments and services for a medical emergency do not require
50-46 express preauthorization.
50-47 (b) The insurance carrier is not liable for those specified
50-48 treatments and services unless preauthorization is sought by the
50-49 claimant or health care provider and either obtained from the
50-50 insurance carrier or ordered by the department [commission].
50-51 SECTION 3.216. Subsection (b), Section 413.015, Labor Code,
50-52 is amended to read as follows:
50-53 (b) The commissioner [commission] shall provide by rule for
50-54 the review and audit of the payment by insurance carriers of
50-55 charges for medical services provided under this subtitle to ensure
50-56 compliance of health care providers and insurance carriers with the
50-57 medical policies and fee guidelines adopted by the department
50-58 [commission].
50-59 SECTION 3.217. Subsection (b), Section 413.016, Labor Code,
50-60 is amended to read as follows:
50-61 (b) If the division determines that an insurance carrier has
50-62 paid medical charges that are inconsistent with the medical
50-63 policies or fee guidelines adopted by the department [commission],
50-64 the division shall refer the insurance carrier alleged to have
50-65 violated this subtitle to the division of compliance and practices.
50-66 If the insurance carrier reduced a charge of a health care provider
50-67 that was within the guidelines, the insurance carrier shall be
50-68 directed to submit the difference to the provider unless the
50-69 reduction is in accordance with an agreement between the health
51-1 care provider and the insurance carrier.
51-2 SECTION 3.218. Section 413.017, Labor Code, is amended to
51-3 read as follows:
51-4 Sec. 413.017. PRESUMPTION OF REASONABLENESS. The following
51-5 medical services are presumed reasonable:
51-6 (1) medical services consistent with the medical
51-7 policies and fee guidelines adopted by the department [commission];
51-8 and
51-9 (2) medical services that are provided subject to
51-10 prospective, concurrent, or retrospective review as required by the
51-11 medical policies of the department [commission] and that are
51-12 authorized by an insurance carrier.
51-13 SECTION 3.219. Subsections (a), (c), (d), and (e), Section
51-14 413.018, Labor Code, are amended to read as follows:
51-15 (a) The commissioner [commission] by rule shall provide for
51-16 the periodic review of medical care provided in claims in which
51-17 guidelines for expected or average return to work time frames are
51-18 exceeded.
51-19 (c) The department [commission] shall implement a program to
51-20 encourage employers and treating doctors to discuss the
51-21 availability of modified duty to encourage the safe and more timely
51-22 return to work of injured employees. The department [commission]
51-23 may require a treating or examining doctor, on the request of the
51-24 employer, insurance carrier, or department [commission], to provide
51-25 a functional capacity evaluation of an injured employee and to
51-26 determine the employee's ability to engage in physical activities
51-27 found in the workplace or in activities that are required in a
51-28 modified duty setting.
51-29 (d) The department [commission] shall provide through the
51-30 department's [commission's] health and safety information and
51-31 medical review outreach programs information to employers regarding
51-32 effective return to work programs. This section does not require
51-33 an employer to provide modified duty or an employee to accept a
51-34 modified duty assignment. An employee who does not accept an
51-35 employer's offer of modified duty determined by the department
51-36 [commission] to be a bona fide job offer is subject to Section
51-37 408.103(e).
51-38 (e) The commissioner [commission] may adopt rules and the
51-39 department may prescribe forms as necessary to implement this
51-40 section.
51-41 SECTION 3.220. Section 413.020, Labor Code, is amended to
51-42 read as follows:
51-43 Sec. 413.020. DEPARTMENT [COMMISSION] CHARGES. The
51-44 commissioner [commission] by rule shall establish procedures to
51-45 enable the department [commission] to charge:
51-46 (1) an insurance carrier a reasonable fee for access
51-47 to or evaluation of health care treatment, fees, or charges under
51-48 this subtitle; and
51-49 (2) a health care provider who exceeds a fee or
51-50 utilization guideline established under this subtitle or an
51-51 insurance carrier who unreasonably disputes charges that are
51-52 consistent with a fee or utilization guideline established under
51-53 this subtitle a reasonable fee for review of health care treatment,
51-54 fees, or charges under this subtitle.
51-55 SECTION 3.221. Subsections (a) and (c), Section 413.031,
51-56 Labor Code, are amended to read as follows:
51-57 (a) A party, including a health care provider, is entitled
51-58 to a review of a medical service provided or for which
51-59 authorization of payment is sought if a health care provider is:
51-60 (1) denied payment or paid a reduced amount for the
51-61 medical service rendered;
51-62 (2) denied authorization for the payment for the
51-63 service requested or performed if authorization is required by the
51-64 medical policies of the department [commission]; or
51-65 (3) ordered by the division to refund a payment
51-66 received for a medical service rendered.
51-67 (c) A review of a medical service under this section shall
51-68 be provided by a health care provider professional review
51-69 organization if requested by the health care practitioner or if
52-1 ordered by the department [commission].
52-2 SECTION 3.222. Section 413.041, Labor Code, is amended to
52-3 read as follows:
52-4 Sec. 413.041. DISCLOSURE. A health care provider who refers
52-5 a workers' compensation claimant to another health care provider in
52-6 which the referring provider has more than a five percent financial
52-7 interest shall file an annual disclosure statement with the
52-8 department [commission] as provided by commissioner [commission]
52-9 rules and shall disclose the interest to the insurance carrier at
52-10 the time of the referral. The referring provider shall specify the
52-11 degree of the financial interest and shall provide other
52-12 information as required by commissioner [commission] rules.
52-13 SECTION 3.223. Section 413.044, Labor Code, is amended to
52-14 read as follows:
52-15 Sec. 413.044. SANCTIONS ON DESIGNATED DOCTOR. In addition
52-16 to or in lieu of an administrative penalty under Section 415.021 or
52-17 a sanction imposed under Section 415.023, the department
52-18 [commission] may impose sanctions against a person who serves as a
52-19 designated doctor under Chapter 408 who, after an evaluation
52-20 conducted under Section 413.002(c), is determined by the division
52-21 to be out of compliance with this subtitle or with rules adopted by
52-22 the commissioner [commission] relating to medical policies, fee
52-23 guidelines, and impairment ratings.
52-24 SECTION 3.224. Section 413.051, Labor Code, is amended to
52-25 read as follows:
52-26 Sec. 413.051. CONTRACTS WITH REVIEW ORGANIZATIONS AND HEALTH
52-27 CARE PROVIDERS. (a) The department [commission] may contract with
52-28 a health care provider professional review organization or other
52-29 entity to develop, maintain, or review medical policies or fee
52-30 guidelines or to review compliance with the medical policies or fee
52-31 guidelines.
52-32 (b) For purposes of review or resolution of a dispute as to
52-33 compliance with the medical policies or fee guidelines, the
52-34 department [commission] may contract only with a health care
52-35 provider professional review organization that includes in the
52-36 review process health care practitioners who are licensed in the
52-37 category under review and are of the same field or specialty as the
52-38 category under review.
52-39 (c) The department [commission] may contract with a health
52-40 care provider for medical consultant services, including:
52-41 (1) independent medical examinations;
52-42 (2) medical case reviews; or
52-43 (3) establishment of medical policies and fee
52-44 guidelines.
52-45 SECTION 3.225. Section 413.052, Labor Code, is amended to
52-46 read as follows:
52-47 Sec. 413.052. PRODUCTION OF DOCUMENTS. The commissioner
52-48 [commission] by rule shall establish procedures to enable the
52-49 department [commission] to compel the production of documents.
52-50 SECTION 3.226. Section 413.053, Labor Code, is amended to
52-51 read as follows:
52-52 Sec. 413.053. STANDARDS OF REPORTING AND BILLING. The
52-53 commissioner [commission] by rule shall establish standards of
52-54 reporting and billing governing [both form and] content.
52-55 SECTION 3.227. Subsection (a), Section 413.054, Labor Code,
52-56 is amended to read as follows:
52-57 (a) A person who performs services for the department
52-58 [commission] as a designated doctor, an independent medical
52-59 examiner, a doctor performing a medical case review, or a member of
52-60 a peer review panel has the same immunity from liability as the
52-61 commissioner [a commission member] under Section 402.012 [402.010].
52-62 SECTION 3.228. Subsections (a) and (b), Section 413.055,
52-63 Labor Code, are amended to read as follows:
52-64 (a) The department [executive director], as provided by
52-65 commissioner [commission] rule, may enter an interlocutory order
52-66 for the payment of all or part of medical benefits. The order may
52-67 address accrued benefits, future benefits, or both accrued benefits
52-68 and future benefits.
52-69 (b) The subsequent injury fund shall reimburse an insurance
53-1 carrier for any overpayments of benefits made under an order
53-2 entered under Subsection (a) if the order is reversed or modified
53-3 by final arbitration, order, or decision of the department
53-4 [commission] or a court. The commissioner [commission] shall adopt
53-5 rules to provide for a periodic reimbursement schedule, providing
53-6 for reimbursement at least annually.
53-7 SECTION 3.229. Subsection (a), Section 414.002, Labor Code,
53-8 is amended to read as follows:
53-9 (a) The division shall monitor for compliance with
53-10 department [commission] rules, this subtitle, and other laws
53-11 relating to workers' compensation the conduct of persons subject to
53-12 this subtitle, including [other than] persons monitored by the
53-13 division of medical review. Persons to be monitored include:
53-14 (1) persons claiming benefits under this subtitle;
53-15 (2) employers;
53-16 (3) insurance carriers; and
53-17 (4) attorneys and other representatives of parties.
53-18 SECTION 3.230. Section 414.003, Labor Code, is amended to
53-19 read as follows:
53-20 Sec. 414.003. COMPILATION AND USE OF INFORMATION. (a) The
53-21 division shall compile and maintain statistical and other
53-22 information as necessary to detect practices or patterns of conduct
53-23 by persons subject to monitoring under this chapter that:
53-24 (1) violate this subtitle or commissioner [commission]
53-25 rules; or
53-26 (2) otherwise adversely affect the workers'
53-27 compensation system of this state.
53-28 (b) The department [commission] shall use the information
53-29 compiled under this section to impose appropriate penalties and
53-30 other sanctions under Chapters 415 and 416.
53-31 SECTION 3.231. Section 414.005, Labor Code, is amended to
53-32 read as follows:
53-33 Sec. 414.005. INVESTIGATION UNIT. The division shall
53-34 maintain an investigation unit to conduct investigations relating
53-35 to alleged violations of this subtitle or commissioner [commission]
53-36 rules, with particular emphasis on violations of Chapters 415 and
53-37 416.
53-38 SECTION 3.232. Section 415.001, Labor Code, is amended to
53-39 read as follows:
53-40 Sec. 415.001. ADMINISTRATIVE VIOLATION BY REPRESENTATIVE OF
53-41 EMPLOYEE OR LEGAL BENEFICIARY. A representative of an employee or
53-42 legal beneficiary commits an administrative violation if the person
53-43 wilfully or intentionally:
53-44 (1) fails without good cause to attend a dispute
53-45 resolution proceeding within the department [commission];
53-46 (2) attends a dispute resolution proceeding within the
53-47 department [commission] without complete authority or fails to
53-48 exercise authority to effectuate an agreement or settlement;
53-49 (3) commits an act of barratry under Section 38.12,
53-50 Penal Code;
53-51 (4) withholds from the employee's or legal
53-52 beneficiary's weekly benefits or from advances amounts not
53-53 authorized to be withheld by the department [commission];
53-54 (5) enters into a settlement or agreement without the
53-55 knowledge, consent, and signature of the employee or legal
53-56 beneficiary;
53-57 (6) takes a fee or withholds expenses in excess of the
53-58 amounts authorized by the department [commission];
53-59 (7) refuses or fails to make prompt delivery to the
53-60 employee or legal beneficiary of funds belonging to the employee or
53-61 legal beneficiary as a result of a settlement, agreement, order, or
53-62 award;
53-63 (8) violates the Texas Disciplinary Rules of
53-64 Professional Conduct of the State Bar of Texas;
53-65 (9) misrepresents the provisions of this subtitle to
53-66 an employee, an employer, a health care provider, or a legal
53-67 beneficiary;
53-68 (10) violates a commissioner [commission] rule; or
53-69 (11) fails to comply with this subtitle.
54-1 SECTION 3.233. Section 415.002, Labor Code, is amended to
54-2 read as follows:
54-3 Sec. 415.002. ADMINISTRATIVE VIOLATION BY AN INSURANCE
54-4 CARRIER. (a) An insurance carrier or its representative commits
54-5 an administrative violation if that person wilfully or
54-6 intentionally:
54-7 (1) misrepresents a provision of this subtitle to an
54-8 employee, an employer, a health care provider, or a legal
54-9 beneficiary;
54-10 (2) terminates or reduces benefits without
54-11 substantiating evidence that the action is reasonable and
54-12 authorized by law;
54-13 (3) instructs an employer not to file a document
54-14 required to be filed with the department [commission];
54-15 (4) instructs or encourages an employer to violate a
54-16 claimant's right to medical benefits under this subtitle;
54-17 (5) fails to tender promptly full death benefits if a
54-18 legitimate dispute does not exist as to the liability of the
54-19 insurance carrier;
54-20 (6) allows an employer, other than a self-insured
54-21 employer, to dictate the methods by which and the terms on which a
54-22 claim is handled and settled;
54-23 (7) fails to confirm medical benefits coverage to a
54-24 person or facility providing medical treatment to a claimant if a
54-25 legitimate dispute does not exist as to the liability of the
54-26 insurance carrier;
54-27 (8) fails, without good cause, to attend a dispute
54-28 resolution proceeding within the department [commission];
54-29 (9) attends a dispute resolution proceeding within the
54-30 department [commission] without complete authority or fails to
54-31 exercise authority to effectuate agreement or settlement;
54-32 (10) adjusts a workers' compensation claim in a manner
54-33 contrary to license requirements for an insurance adjuster,
54-34 including the requirements of Chapter 407, Acts of the 63rd
54-35 Legislature, Regular Session, 1973 (Article 21.07-4, Vernon's Texas
54-36 Insurance Code), or the rules of the Texas Department [State Board]
54-37 of Insurance;
54-38 (11) fails to process claims promptly in a reasonable
54-39 and prudent manner;
54-40 (12) fails to initiate or reinstate benefits when due
54-41 if a legitimate dispute does not exist as to the liability of the
54-42 insurance carrier;
54-43 (13) misrepresents the reason for not paying benefits
54-44 or terminating or reducing the payment of benefits;
54-45 (14) dates documents to misrepresent the actual date
54-46 of the initiation of benefits;
54-47 (15) makes a notation on a draft or other instrument
54-48 indicating that the draft or instrument represents a final
54-49 settlement of a claim if the claim is still open and pending before
54-50 the department [commission];
54-51 (16) fails or refuses to pay benefits from week to
54-52 week as and when due directly to the person entitled to the
54-53 benefits;
54-54 (17) fails to pay an order awarding benefits;
54-55 (18) controverts a claim if the evidence clearly
54-56 indicates liability;
54-57 (19) unreasonably disputes the reasonableness and
54-58 necessity of health care;
54-59 (20) violates a commissioner [commission] rule; or
54-60 (21) fails to comply with a provision of this
54-61 subtitle.
54-62 (b) An insurance carrier or its representative does not
54-63 commit an administrative violation under Subsection (a)(6) by
54-64 allowing an employer to:
54-65 (1) freely discuss a claim;
54-66 (2) assist in the investigation and evaluation of a
54-67 claim; or
54-68 (3) attend a proceeding of the department [commission]
54-69 and participate at the proceeding in accordance with this subtitle.
55-1 SECTION 3.234. Section 415.003, Labor Code, is amended to
55-2 read as follows:
55-3 Sec. 415.003. ADMINISTRATIVE VIOLATION BY HEALTH CARE
55-4 PROVIDER. A health care provider commits an administrative
55-5 violation if the person wilfully or intentionally:
55-6 (1) submits a charge for health care that was not
55-7 furnished;
55-8 (2) administers improper, unreasonable, or medically
55-9 unnecessary treatment or services;
55-10 (3) makes an unnecessary referral;
55-11 (4) violates the department's [commission's] fee and
55-12 treatment guidelines;
55-13 (5) violates a commissioner [commission] rule; or
55-14 (6) fails to comply with a provision of this subtitle.
55-15 SECTION 3.235. Subsections (a) and (b), Section 415.0035,
55-16 Labor Code, are amended to read as follows:
55-17 (a) An insurance carrier or its representative commits an
55-18 administrative violation if that person:
55-19 (1) fails to submit to the department [commission] a
55-20 settlement or agreement of the parties;
55-21 (2) fails to timely notify the department [commission]
55-22 of the termination or reduction of benefits and the reason for that
55-23 action; or
55-24 (3) denies preauthorization in a manner that is not in
55-25 accordance with rules adopted by the commissioner [commission]
55-26 under Section 413.014.
55-27 (b) A health care provider commits an administrative
55-28 violation if that person:
55-29 (1) fails or refuses to timely file required reports
55-30 or records; or
55-31 (2) fails to file with the department [commission] the
55-32 annual disclosure statement required by Section 413.041.
55-33 SECTION 3.236. Subsection (a), Section 415.007, Labor Code,
55-34 is amended to read as follows:
55-35 (a) An attorney who represents a claimant before the
55-36 department [commission] may not lend money to the claimant during
55-37 the pendency of the workers' compensation claim.
55-38 SECTION 3.237. Subsection (e), Section 415.008, Labor Code,
55-39 is amended to read as follows:
55-40 (e) If an administrative violation proceeding is pending
55-41 under this section against an employee or person claiming death
55-42 benefits, the department [commission] may not take final action on
55-43 the person's benefits.
55-44 SECTION 3.238. Subsection (a), Section 415.010, Labor Code,
55-45 is amended to read as follows:
55-46 (a) A party to an agreement approved by the department
55-47 [commission] commits a violation if the person knowingly breaches a
55-48 provision of the agreement.
55-49 SECTION 3.239. Subsections (a), (b), and (c), Section
55-50 415.021, Labor Code, are amended to read as follows:
55-51 (a) The department [commission] may assess an administrative
55-52 penalty against a person who commits an administrative violation.
55-53 (b) The department [commission] may assess an administrative
55-54 penalty not to exceed $10,000 and may enter a cease and desist
55-55 order against a person who:
55-56 (1) commits repeated administrative violations;
55-57 (2) allows, as a business practice, the commission of
55-58 repeated administrative violations; or
55-59 (3) violates an order or decision of the department
55-60 [commission].
55-61 (c) In assessing an administrative penalty, the department
55-62 [commission] shall consider:
55-63 (1) the seriousness of the violation, including the
55-64 nature, circumstances, consequences, extent, and gravity of the
55-65 prohibited act;
55-66 (2) the history and extent of previous administrative
55-67 violations;
55-68 (3) the demonstrated good faith of the violator,
55-69 including actions taken to rectify the consequences of the
56-1 prohibited act;
56-2 (4) the economic benefit resulting from the prohibited
56-3 act;
56-4 (5) the penalty necessary to deter future violations;
56-5 and
56-6 (6) other matters that justice may require.
56-7 SECTION 3.240. Subsection (b), Section 415.023, Labor Code,
56-8 is amended to read as follows:
56-9 (b) The commissioner [commission] may adopt rules providing
56-10 for:
56-11 (1) a reduction or denial of fees;
56-12 (2) public or private reprimand by the department
56-13 [commission];
56-14 (3) suspension from practice before the department
56-15 [commission]; or
56-16 (4) restriction, suspension, or revocation of the
56-17 right to receive reimbursement under this subtitle.
56-18 SECTION 3.241. Section 415.024, Labor Code, is amended to
56-19 read as follows:
56-20 Sec. 415.024. BREACH OF SETTLEMENT AGREEMENT; ADMINISTRATIVE
56-21 VIOLATION. A material and substantial breach of a settlement
56-22 agreement that establishes a compliance plan is a Class A
56-23 administrative violation. In determining the amount of the
56-24 penalty, the department [commission] shall consider the total
56-25 volume of claims handled by the insurance carrier.
56-26 SECTION 3.242. Subsection (b), Section 415.032, Labor Code,
56-27 is amended to read as follows:
56-28 (b) Not later than the 20th day after the date on which
56-29 notice is received, the charged party shall:
56-30 (1) remit the amount of the penalty to the department
56-31 [commission]; or
56-32 (2) submit to the department [commission] a written
56-33 request for a hearing.
56-34 SECTION 3.243. Section 415.033, Labor Code, is amended to
56-35 read as follows:
56-36 Sec. 415.033. FAILURE TO RESPOND. If, without good cause, a
56-37 charged party fails to respond as required under Section 415.032,
56-38 the penalty is due and the department [commission] shall initiate
56-39 enforcement proceedings.
56-40 SECTION 3.244. Subsection (a), Section 415.034, Labor Code,
56-41 is amended to read as follows:
56-42 (a) On the request of the charged party or the department
56-43 [executive director], the State Office of Administrative Hearings
56-44 shall set a hearing. The hearing shall be conducted in the manner
56-45 provided for a contested case under Chapter 2001, Government Code
56-46 (the administrative procedure law).
56-47 SECTION 3.245. Subsections (b) and (d), Section 415.035,
56-48 Labor Code, are amended to read as follows:
56-49 (b) If an administrative penalty is assessed, the person
56-50 charged shall:
56-51 (1) forward the amount of the penalty to the
56-52 department [executive director] for deposit in an escrow account;
56-53 or
56-54 (2) post with the department [executive director] a
56-55 bond for the amount of the penalty, effective until all judicial
56-56 review of the determination is final.
56-57 (d) If the court determines that the penalty should not have
56-58 been assessed or reduces the amount of the penalty, the department
56-59 [executive director] shall:
56-60 (1) remit the appropriate amount, plus accrued
56-61 interest, if the administrative penalty was paid; or
56-62 (2) release the bond.
56-63 SECTION 3.246. Section 416.001, Labor Code, is amended to
56-64 read as follows:
56-65 Sec. 416.001. CERTAIN CAUSES OF ACTION PRECLUDED. An action
56-66 taken by an insurance carrier under an order of the department
56-67 [commission] or recommendations of a benefit review officer under
56-68 Section 410.031, 410.032, or 410.033 may not be the basis of a
56-69 cause of action against the insurance carrier for a breach of the
57-1 duty of good faith and fair dealing.
57-2 SECTION 3.247. Subsections (c) and (d), Section 417.001,
57-3 Labor Code, are amended to read as follows:
57-4 (c) If a claimant receives benefits from the subsequent
57-5 injury fund, the department [commission] is:
57-6 (1) considered to be the insurance carrier under this
57-7 section for purposes of those benefits;
57-8 (2) subrogated to the rights of the claimant; and
57-9 (3) entitled to reimbursement in the same manner as
57-10 the insurance carrier.
57-11 (d) The department [commission] shall remit money recovered
57-12 under this section to the comptroller for deposit to the credit of
57-13 the subsequent injury fund.
57-14 SECTION 3.248. Subsection (b), Section 417.003, Labor Code,
57-15 is amended to read as follows:
57-16 (b) An attorney who represents the claimant and is also to
57-17 represent the subrogated insurance carrier shall make a full
57-18 written disclosure to the claimant before employment as an attorney
57-19 by the insurance carrier. The claimant must acknowledge the
57-20 disclosure and consent to the representation. A signed copy of the
57-21 disclosure shall be furnished to all concerned parties and made a
57-22 part of the department [commission] file. A copy of the disclosure
57-23 with the claimant's consent shall be filed with the claimant's
57-24 pleading before a judgment is entered and approved by the court.
57-25 The claimant's attorney may not receive a fee under this section to
57-26 which the attorney is otherwise entitled under an agreement with
57-27 the insurance carrier unless the attorney complies with the
57-28 requirements of this subsection.
57-29 SECTION 3.249. Section 501.001, Labor Code, is amended to
57-30 read as follows:
57-31 Sec. 501.001. DEFINITIONS. In this chapter:
57-32 (1) ["Commission" means the Texas Workers'
57-33 Compensation Commission.]
57-34 [(2)] "Compensable injury" has the meaning assigned to
57-35 that term under Subtitle A.
57-36 (2) "Department" means the Texas Department of
57-37 Workers' Compensation.
57-38 (3) "Director" means the director of the State Office
57-39 of Risk Management.
57-40 (4) "Office" means the State Office of Risk
57-41 Management.
57-42 (5) "Employee" means a person who is:
57-43 (A) in the service of the state pursuant to an
57-44 election, appointment, or express oral or written contract of hire;
57-45 (B) paid from state funds but whose duties
57-46 require that the person work and frequently receive supervision in
57-47 a political subdivision of the state;
57-48 (C) a peace officer employed by a political
57-49 subdivision, while the peace officer is exercising authority
57-50 granted under Article 14.03(c), Code of Criminal Procedure; or
57-51 (D) a member of the state military forces, as
57-52 defined by Section 431.001, Government Code, who is engaged in
57-53 authorized training or duty.
57-54 (6) "State agency" includes a department, board,
57-55 commission, or institution of this state.
57-56 (7) "Board" means the risk management board.
57-57 SECTION 3.250. Subsection (d), Section 501.026, Labor Code,
57-58 is amended to read as follows:
57-59 (d) A person entitled to benefits under this section may
57-60 receive the benefits only if the person seeks medical attention
57-61 from a doctor for the injury not later than 48 hours after the
57-62 occurrence of the injury or after the date the person knew or
57-63 should have known the injury occurred. The person shall comply
57-64 with the requirements of Section 409.001 by providing notice of the
57-65 injury to the department [commission] or the state agency with
57-66 which the officer or employee under Subsection (b) is associated.
57-67 SECTION 3.251. Subsection (a), Section 501.050, Labor Code,
57-68 is amended to read as follows:
57-69 (a) In each case appealed from the department [commission]
58-1 to a county or district court:
58-2 (1) the clerk of the court shall mail to the
58-3 department [commission]:
58-4 (A) not later than the 20th day after the date
58-5 the case is filed, a notice containing the style, number, and date
58-6 of filing of the case; and
58-7 (B) not later than the 20th day after the date
58-8 the judgment is rendered, a certified copy of the judgment; and
58-9 (2) the attorney preparing the judgment shall file the
58-10 original and a copy of the judgment with the clerk.
58-11 SECTION 3.252. Subdivision (1), Section 502.001, Labor Code,
58-12 is amended to read as follows:
58-13 (1) "Department" means the Texas Department of
58-14 Workers' Compensation ["Commission" means the Texas Workers'
58-15 Compensation Commission].
58-16 SECTION 3.253. The heading to Section 502.063, Labor Code,
58-17 is amended to read as follows:
58-18 Sec. 502.063. CERTIFIED COPIES OF DEPARTMENT [COMMISSION]
58-19 DOCUMENTS.
58-20 SECTION 3.254. Subsections (a) and (c), Section 502.063,
58-21 Labor Code, are amended to read as follows:
58-22 (a) The department [commission] shall furnish a certified
58-23 copy of an order, award, decision, or paper on file in the
58-24 department's [commission's] office to a person entitled to the copy
58-25 on written request and payment of the fee for the copy. The fee is
58-26 the same as that charged for similar services by the secretary of
58-27 state's office.
58-28 (c) A fee or salary may not be paid to the commissioner or
58-29 an [a member or] employee of the department [commission] for making
58-30 a copy under Subsection (a) that exceeds the fee charged for the
58-31 copy.
58-32 SECTION 3.255. Subsection (a), Section 502.065, Labor Code,
58-33 is amended to read as follows:
58-34 (a) In addition to a report of an injury filed with the
58-35 department [commission] under Section 409.005(a), an institution
58-36 shall file a supplemental report that contains:
58-37 (1) the name, age, sex, and occupation of the injured
58-38 employee;
58-39 (2) the character of work in which the employee was
58-40 engaged at the time of the injury;
58-41 (3) the place, date, and hour of the injury; and
58-42 (4) the nature and cause of the injury.
58-43 SECTION 3.256. Subsections (a) and (e), Section 502.066,
58-44 Labor Code, are amended to read as follows:
58-45 (a) The department [commission] may require an employee who
58-46 claims to have been injured to submit to an examination by the
58-47 department [commission] or a person acting under the department's
58-48 [commission's] authority at a reasonable time and place in this
58-49 state.
58-50 (e) The institution shall pay the fee set by the department
58-51 [commission] of a physician or chiropractor selected by the
58-52 employee under Subsection (b) or (d).
58-53 SECTION 3.257. Subsection (a), Section 502.067, Labor Code,
58-54 is amended to read as follows:
58-55 (a) The department [commission] may order or direct the
58-56 institution to reduce or suspend the compensation of an injured
58-57 employee who:
58-58 (1) persists in insanitary or injurious practices that
58-59 tend to imperil or retard the employee's recovery; or
58-60 (2) refuses to submit to medical, surgical,
58-61 chiropractic, or other remedial treatment recognized by the state
58-62 that is reasonably essential to promote the employee's recovery.
58-63 SECTION 3.258. Section 502.068, Labor Code, is amended to
58-64 read as follows:
58-65 Sec. 502.068. POSTPONEMENT OF HEARING. If an injured
58-66 employee is receiving benefits under this chapter and the
58-67 institution is providing hospitalization, medical treatment, or
58-68 chiropractic care to the employee, the department [commission] may
58-69 postpone the hearing on the employee's claim. An appeal may not be
59-1 taken from a department [commission] order under this section.
59-2 SECTION 3.259. Subsection (a), Section 502.069, Labor Code,
59-3 is amended to read as follows:
59-4 (a) In each case appealed from the department [commission]
59-5 to a county or district court:
59-6 (1) the clerk of the court shall mail to the
59-7 department [commission]:
59-8 (A) not later than the 20th day after the date
59-9 the case is filed, a notice containing the style, number, and date
59-10 of filing of the case; and
59-11 (B) not later than the 20th day after the date
59-12 the judgment is rendered, a certified copy of the judgment; and
59-13 (2) the attorney preparing the judgment shall file the
59-14 original and a copy of the judgment with the clerk.
59-15 SECTION 3.260. Subdivision (1), Section 503.001, Labor Code,
59-16 is amended to read as follows:
59-17 (1) "Department" means the Texas Department of
59-18 Workers' Compensation ["Commission" means the Texas Workers'
59-19 Compensation Commission].
59-20 SECTION 3.261. The heading to Section 503.063, Labor Code,
59-21 is amended to read as follows:
59-22 Sec. 503.063. CERTIFIED COPIES OF DEPARTMENT [COMMISSION]
59-23 DOCUMENTS.
59-24 SECTION 3.262. Subsections (a) and (c), Section 503.063,
59-25 Labor Code, are amended to read as follows:
59-26 (a) The department [commission] shall furnish a certified
59-27 copy of an order, award, decision, or paper on file in the
59-28 department's [commission's] office to a person entitled to the copy
59-29 on written request and payment of the fee for the copy. The fee is
59-30 the same as that charged for similar services by the secretary of
59-31 state's office.
59-32 (c) A fee or salary may not be paid to the commissioner or
59-33 an [a member or] employee of the department [commission] for making
59-34 a copy under Subsection (a) that exceeds the fee charged for the
59-35 copy.
59-36 SECTION 3.263. Subsection (a), Section 503.065, Labor Code,
59-37 is amended to read as follows:
59-38 (a) In addition to a report of an injury filed with the
59-39 department [commission] under Section 409.005(a), an institution
59-40 shall file a supplemental report that contains:
59-41 (1) the name, age, sex, and occupation of the injured
59-42 employee;
59-43 (2) the character of work in which the employee was
59-44 engaged at the time of the injury;
59-45 (3) the place, date, and hour of the injury; and
59-46 (4) the nature and cause of the injury.
59-47 SECTION 3.264. Subsections (a) and (e), Section 503.066,
59-48 Labor Code, are amended to read as follows:
59-49 (a) The department [commission] may require an employee who
59-50 claims to have been injured to submit to an examination by the
59-51 department [commission] or a person acting under the department's
59-52 [commission's] authority at a reasonable time and place in this
59-53 state.
59-54 (e) The institution shall pay the fee, as set by the
59-55 department [commission], of a physician selected by the employee
59-56 under Subsection (b) or (d).
59-57 SECTION 3.265. Subsection (a), Section 503.067, Labor Code,
59-58 is amended to read as follows:
59-59 (a) The department [commission] may order or direct the
59-60 institution to reduce or suspend the compensation of an injured
59-61 employee who:
59-62 (1) persists in insanitary or injurious practices that
59-63 tend to imperil or retard the employee's recovery; or
59-64 (2) refuses to submit to medical, surgical, or other
59-65 remedial treatment recognized by the state that is reasonably
59-66 essential to promote the employee's recovery.
59-67 SECTION 3.266. Section 503.068, Labor Code, is amended to
59-68 read as follows:
59-69 Sec. 503.068. POSTPONEMENT OF HEARING. If an injured
60-1 employee is receiving benefits under this chapter and the
60-2 institution is providing hospitalization or medical treatment to
60-3 the employee, the department [commission] may postpone the hearing
60-4 on the employee's claim. An appeal may not be taken from a
60-5 department [commission] order under this section.
60-6 SECTION 3.267. Subsection (a), Section 503.069, Labor Code,
60-7 is amended to read as follows:
60-8 (a) In each case appealed from the department [commission]
60-9 to a county or district court:
60-10 (1) the clerk of the court shall mail to the
60-11 department [commission]:
60-12 (A) not later than the 20th day after the date
60-13 the case is filed, a notice containing the style, number, and date
60-14 of filing of the case; and
60-15 (B) not later than the 20th day after the date
60-16 the judgment is rendered, a certified copy of the judgment; and
60-17 (2) the attorney preparing the judgment shall file the
60-18 original and a copy of the judgment with the clerk.
60-19 SECTION 3.268. Subsection (a), Section 503.070, Labor Code,
60-20 is amended to read as follows:
60-21 (a) A party who does not consent to abide by the final
60-22 decision of the department [commission] shall file notice with the
60-23 department [commission] as required by Section 410.253 and bring
60-24 suit in the county in which the injury occurred to set aside the
60-25 final decision of the department [commission].
60-26 SECTION 3.269. Subdivision (1), Section 504.001, Labor Code,
60-27 is amended to read as follows:
60-28 (1) "Department" means the Texas Department of
60-29 Workers' Compensation ["Commission" means the Texas Workers'
60-30 Compensation Commission].
60-31 SECTION 3.270. The heading to Section 504.018, Labor Code,
60-32 is amended to read as follows:
60-33 Sec. 504.018. NOTICE TO DEPARTMENT [COMMISSION] AND
60-34 EMPLOYEES; EFFECT ON COMMON-LAW OR STATUTORY LIABILITY.
60-35 SECTION 3.271. Subsection (a), Section 504.018, Labor Code,
60-36 is amended to read as follows:
60-37 (a) A political subdivision shall notify the department
60-38 [commission] of the method by which its employees will receive
60-39 benefits, the approximate number of employees covered, and the
60-40 estimated amount of payroll.
60-41 SECTION 3.272. The heading to Section 505.053, Labor Code,
60-42 is amended to read as follows:
60-43 Sec. 505.053. CERTIFIED COPIES OF TEXAS DEPARTMENT OF
60-44 WORKERS' COMPENSATION [COMMISSION] DOCUMENTS.
60-45 SECTION 3.273. Subsections (a) and (c), Section 505.053,
60-46 Labor Code, are amended to read as follows:
60-47 (a) The Texas Department of Workers' Compensation
60-48 [commission] shall furnish a certified copy of an order, award,
60-49 decision, or paper on file in that department's [the commission's]
60-50 office to a person entitled to the copy on written request and
60-51 payment of the fee for the copy. The fee shall be the same as that
60-52 charged for similar services by the secretary of state's office.
60-53 (c) A fee or salary may not be paid to a person in the Texas
60-54 Department of Workers' Compensation [commission] for making the
60-55 copies that exceeds the fee charged for the copies.
60-56 SECTION 3.274. Subsection (d), Section 505.054, Labor Code,
60-57 is amended to read as follows:
60-58 (d) A physician designated under Subsection (c) who conducts
60-59 an examination shall file with the department a complete transcript
60-60 of the examination on a form furnished by the department. The
60-61 department shall maintain all reports under this subsection as part
60-62 of the department's permanent records. A report under this
60-63 subsection is admissible in evidence before the Texas Department of
60-64 Workers' Compensation [commission] and in an appeal from a final
60-65 award or ruling of that department [the commission] in which the
60-66 individual named in the examination is a claimant for compensation
60-67 under this chapter. A report under this subsection that is
60-68 admitted is prima facie evidence of the facts stated in the report.
60-69 SECTION 3.275. Section 505.055, Labor Code, is amended to
61-1 read as follows:
61-2 Sec. 505.055. REPORTS OF INJURIES. (a) A report of an
61-3 injury filed with the Texas Department of Workers' Compensation
61-4 [commission] under Section 409.005, in addition to the information
61-5 required by commissioner of workers' compensation [commission]
61-6 rules, must contain:
61-7 (1) the name, age, sex, and occupation of the injured
61-8 employee;
61-9 (2) the character of work in which the employee was
61-10 engaged at the time of the injury;
61-11 (3) the place, date, and hour of the injury; and
61-12 (4) the nature and cause of the injury.
61-13 (b) In addition to subsequent reports of an injury filed
61-14 with the Texas Department of Workers' Compensation [commission]
61-15 under Section 409.005(i) [409.005(e)], the department shall file a
61-16 subsequent report on a form obtained for that purpose:
61-17 (1) on the termination of incapacity of the injured
61-18 employee; or
61-19 (2) if the incapacity extends beyond 60 days.
61-20 SECTION 3.276. Subsections (a) and (d), Section 505.056,
61-21 Labor Code, are amended to read as follows:
61-22 (a) The Texas Department of Workers' Compensation
61-23 [commission] may require an employee who claims to have been
61-24 injured to submit to an examination by that department [the
61-25 commission] or a person acting under the [commission's] authority
61-26 of that department at a reasonable time and place in this state.
61-27 (d) On the request of an employee or the department, the
61-28 employee or the department is entitled to have a physician selected
61-29 by the employee or the department present to participate in an
61-30 examination under Subsection (a) or Section 408.004. The employee
61-31 is entitled to have a physician selected by the employee present to
61-32 participate in an examination under Subsection (c). The department
61-33 shall pay the fee set by the Texas Department of Workers'
61-34 Compensation [commission] of a physician selected by the employee
61-35 under this subsection.
61-36 SECTION 3.277. Subsection (a), Section 505.057, Labor Code,
61-37 is amended to read as follows:
61-38 (a) The Texas Department of Workers' Compensation
61-39 [commission] may order or direct the department to reduce or
61-40 suspend the compensation of an injured employee if the employee:
61-41 (1) persists in insanitary or injurious practices that
61-42 tend to imperil or retard the employee's recovery; or
61-43 (2) refuses to submit to medical, surgical, or other
61-44 remedial treatment recognized by the state that is reasonably
61-45 essential to promote the employee's recovery.
61-46 SECTION 3.278. Section 505.058, Labor Code, is amended to
61-47 read as follows:
61-48 Sec. 505.058. POSTPONEMENT OF HEARING. If an injured
61-49 employee is receiving benefits under this chapter and the
61-50 department is providing hospitalization or medical treatment to the
61-51 employee, the Texas Department of Workers' Compensation
61-52 [commission] may postpone the hearing of the employee's claim. An
61-53 appeal may not be taken from an [a commission] order of the Texas
61-54 Department of Workers' Compensation under this section.
61-55 SECTION 3.279. Subsection (a), Section 505.059, Labor Code,
61-56 is amended to read as follows:
61-57 (a) In each case appealed from the Texas Department of
61-58 Workers' Compensation [commission] to a county or district court:
61-59 (1) the clerk of the court shall mail to the Texas
61-60 Department of Workers' Compensation [commission]:
61-61 (A) not later than the 20th day after the date
61-62 the case is filed, a notice containing the style, number, and date
61-63 of filing of the case; and
61-64 (B) not later than the 20th day after the date
61-65 the judgment is rendered, a certified copy of the judgment; and
61-66 (2) the attorney preparing the judgment shall file the
61-67 original and a copy of the judgment with the clerk.
61-68 ARTICLE 4. REPEALER
61-69 SECTION 4.001. The following laws are repealed:
62-1 (1) Section 402.063, Labor Code; and
62-2 (2) Subdivision (1), Subsection (a), Section 505.001,
62-3 Labor Code.
62-4 ARTICLE 5. TRANSITION PROVISIONS; EFFECTIVE DATE
62-5 SECTION 5.001. The change in designation of the Texas
62-6 Workers' Compensation Commission to the Texas Department of
62-7 Workers' Compensation does not affect or impair any act done or
62-8 taken, any rule, standard, or rate adopted, any order or
62-9 certificate issued, or any form approved by the Texas Workers'
62-10 Compensation Commission as a state agency, or any penalty assessed
62-11 by the Texas Workers' Compensation Commission as a state agency,
62-12 before the change in designation made by this Act.
62-13 SECTION 5.002. (a) The Texas Workers' Compensation
62-14 Commission is abolished on the effective date of this Act. The
62-15 term of a person who is serving on the Texas Workers' Compensation
62-16 Commission on the effective date of this Act expires on the date
62-17 the commissioner of workers' compensation is appointed and duly
62-18 qualified for office.
62-19 (b) A person who is serving as a member or as executive
62-20 director of the Texas Workers' Compensation Commission on August
62-21 31, 2001, is not eligible for appointment as commissioner under
62-22 Section 402.004, Labor Code, as added by this Act.
62-23 SECTION 5.003. All appropriations made by the legislature
62-24 for the use and benefit of the Texas Workers' Compensation
62-25 Commission are available for the use and benefit of the Texas
62-26 Department of Workers' Compensation.
62-27 SECTION 5.004. The governor shall appoint the commissioner
62-28 of workers' compensation not later than December 31, 2001.
62-29 SECTION 5.005. This Act takes effect September 1, 2001.
62-30 * * * * *