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(1) Amend Article 3 of the committee printing of CSSB 5 by
inserting appropriately numbered SECTIONS as follows:
SECTION 3.__. Subtitle A, Title 5, Labor Code, is amended by
adding Chapter 404 to read as follows:
"CHAPTER 404. OFFICE OF INJURED EMPLOYEE COUNSEL
SUBCHAPTER A. OFFICE; GENERAL PROVISIONS
Sec. 404.001. DEFINITIONS. In this chapter:
(1) "Office" means the office of injured employee
counsel.
(2) "Public counsel" means the injured employee public
counsel.
Sec. 404.002. ESTABLISHMENT OF OFFICE; ADMINISTRATIVE
ATTACHMENT TO TEXAS DEPARTMENT OF WORKERS' COMPENSATION. (a) The
office of injured employee counsel is established to represent the
interests of workers' compensation claimants in this state.
(b) The office is administratively attached to the Texas
Department of Workers' Compensation but is independent of direction
by the commissioner of workers' compensation and the Texas
Department of Workers' Compensation.
(c) The Texas Department of Workers' Compensation shall
provide the staff and facilities necessary to enable the office to
perform the duties of the office under this subtitle, including:
(1) administrative assistance and services to the
office, including budget planning and purchasing;
(2) personnel services; and
(3) computer equipment and support.
(d) The public counsel and the commissioner of workers'
compensation may enter into interagency contracts and other
agreements as necessary to implement this chapter.
Sec. 404.003. SUNSET PROVISION. The office of injured
employee counsel is subject to Chapter 325, Government Code (Texas
Sunset Act). Unless continued in existence as provided by that
chapter, the office is abolished and this chapter expires September
1, 2019.
Sec. 404.004. PUBLIC INTEREST INFORMATION. (a) The office
shall prepare information of public interest describing the
functions of the office.
(b) The office shall make the information available to the
public and appropriate state agencies.
Sec. 404.005. ACCESS TO PROGRAMS AND FACILITIES. (a) The
office shall prepare and maintain a written plan that describes how
a person who does not speak English can be provided reasonable
access to the office's programs.
(b) The office shall comply with federal and state laws for
program and facility accessibility.
Sec. 404.006. RULEMAKING. (a) The public counsel shall
adopt rules as necessary to implement this chapter.
(b) Rulemaking under this section is subject to Chapter
2001, Government Code.
[Sections 404.007-404.050 reserved for expansion]
SUBCHAPTER B. INJURED EMPLOYEE PUBLIC COUNSEL
Sec. 404.051. APPOINTMENT; TERM. (a) The governor, with
the advice and consent of the senate, shall appoint the injured
employee public counsel. The public counsel serves a two-year term
that expires on February 1 of each odd-numbered year.
(b) The governor shall appoint the public counsel without
regard to the race, color, disability, sex, religion, age, or
national origin of the appointee.
(c) If a vacancy occurs during a term, the governor shall
fill the vacancy for the unexpired term.
(d) In appointing the public counsel, the governor may
consider recommendations made by groups that represent wage
earners.
Sec. 404.052. QUALIFICATIONS. To be eligible to serve as
public counsel, a person must:
(1) be a resident of Texas;
(2) be licensed to practice law in this state;
(3) have management experience;
(4) possess knowledge and experience with the workers'
compensation system; and
(5) have experience with legislative procedures and
administrative law.
Sec. 404.053. BUSINESS INTEREST; SERVICE AS PUBLIC COUNSEL.
(a) A person is not eligible for appointment as public counsel if
the person or the person's spouse:
(1) is employed by or participates in the management
of a business entity or other organization that holds a license,
certificate of authority, or other authorization from the
department or that receives funds from the department;
(2) owns or controls, directly or indirectly, more
than a 10 percent interest in a business entity or other
organization regulated by or receiving funds from the department or
the office; or
(3) uses or receives a substantial amount of tangible
goods, services, or funds from the department or the office, other
than compensation or reimbursement authorized by law.
Sec. 404.054. LOBBYING ACTIVITIES. A person may not serve
as public counsel if the person is required to register as a
lobbyist under Chapter 305, Government Code, because of the
person's activities for compensation related to the operation of
the department or the office.
Sec. 404.055. GROUNDS FOR REMOVAL. (a) It is a ground for
removal from office that the public counsel:
(1) does not have at the time of appointment or
maintain during service as public counsel the qualifications
required by Section 404.052;
(2) violates a prohibition established by Section
404.053, 404.054, 404.056, or 404.057; or
(3) cannot, because of illness or disability,
discharge the public counsel's duties for a substantial part of the
public counsel's term.
(b) The validity of an action of the office is not affected
by the fact that the action is taken when a ground for removal of the
public counsel exists.
Sec. 404.056. PROHIBITED REPRESENTATION OR EMPLOYMENT.
(a) A former public counsel may not make any communication to or
appearance before the Texas Department of Workers' Compensation,
Texas Department of Insurance, commissioner of workers'
compensation, commissioner of insurance, or an employee of the
Texas Department of Workers' Compensation, Texas Department of
Insurance before the second anniversary of the date the person
ceases to serve as public counsel if the communication or
appearance is made:
(1) on behalf of another person in connection with any
matter on which the person seeks official action; or
(2) with the intent to influence the commissioner of
workers' compensation or commissioner of insurance decision or
action, unless the person is acting on the person's own behalf and
without remuneration.
(b) A former public counsel may not represent any person or
receive compensation for services rendered on behalf of any person
regarding a matter before the Texas Department of Workers'
Compensation or the Texas Department of Insurance before the second
anniversary of the date the person ceases to serve as public
counsel.
(c) A person commits an offense if the person violates this
section. An offense under this section is a Class A misdemeanor.
(d) A former employee of the office may not:
(1) be employed by an insurance carrier regarding a
matter that was in the scope of the employee's official
responsibility while the employee was associated with the office;
or
(2) represent a person before the Texas Department of
Workers' Compensation or the Texas Department of Insurance or a
court in a matter:
(A) in which the employee was personally involved
while associated with the office; or
(B) that was within the employee's official
responsibility while the employee was associated with the office.
(e) The prohibition of Subsection (d)(1) applies until the
first anniversary of the date the employee's employment with the
office ceases.
(f) The prohibition of Subsection (d)(2) applies to a
current employee of the office while the employee is associated
with the office and at any time after.
Sec. 404.057. TRADE ASSOCIATIONS. (a) In this section,
"trade association" means a nonprofit, cooperative, and
voluntarily joined association of business or professional
competitors designed to assist its members and its industry or
profession in dealing with mutual business or professional problems
and in promoting their common interest.
(b) A person may not serve as public counsel if the person
has been, within the previous two years:
(1) an officer, employee, or paid consultant of a
trade association in the field of workers' compensation; or
(2) the spouse of an officer, manager, or paid
consultant of a trade association in the field of workers'
compensation.
[Sections 404.058-404.100 reserved for expansion]
SUBCHAPTER C. GENERAL POWERS AND DUTIES OF OFFICE
Sec. 404.101. GENERAL DUTIES. (a) The office shall, as
provided by this subtitle:
(1) provide assistance to workers' compensation
claimants as provided by this subtitle; and
(2) advocate on behalf of the public regarding
rulemaking by the commissioner of workers' compensation and
commissioner of insurance relating to workers' compensation.
(3) assist injured employees with contacting
appropriate licensing boards for complaints against a health care
provider; and
(4) assist injured employees with referral to local,
state, and federal financial assistance, rehabilitation, and work
placement programs, as well as other social services that the
office considers appropriate.
(e) The office:
(1) may assess the impact of workers' compensation
laws, rules, procedures, and forms on injured employees in this
state; and
(2) shall, as provided by this subtitle:
(A) monitor the performance and operation of the
workers' compensation system, with a focus on the system's effect on
the return to work of injured employees;
(B) assist injured employees, through the
ombudsman program, with the resolution of complaints pending at the
Texas Department of Workers' Compensation;
(C) assist injured workers, through the
ombudsman program, in the Texas Department of Workers'
Compensation's administrative dispute resolution system; and
(D) advocate in the office's own name positions
determined by the public counsel to be most advantageous to a
substantial number of injured workers.
(f) The office may not appear or intervene, as a party or
otherwise, before the commissioner of workers' compensation,
commissioner of insurance, Department of Workers' Compensation or
Department of Insurance on behalf of an individual injured
employee.
Sec. 404.102. GENERAL POWERS AND DUTIES OF PUBLIC COUNSEL.
The public counsel shall administer and enforce this chapter,
including preparing and submitting to the legislature a budget for
the office and approving expenditures for professional services,
travel, per diem, and other actual and necessary expenses incurred
in administering the office.
Sec. 404.103. OPERATION OF OMBUDSMAN PROGRAM. (a) The
office shall operate the ombudsman program under Subchapter D.
(b) The office shall coordinate services provided by the
ombudsman program with services provided by the Department of
Assistive and Rehabilitative Services.
Sec. 404.104. AUTHORITY TO APPEAR OR INTERVENE. The public
counsel:
(1) may appear or intervene, as a party or otherwise,
as a matter of right before the commissioner of workers'
compensation, commissioner of insurance, Department of Workers'
Compensation or Department of Insurance on behalf of injured
employees as a class in matters involving rates, rules, and forms
affecting workers' compensation insurance for which the
commissioner of workers' compensation or the commissioner of
insurance promulgates rates or adopts or approves rules or forms;
(2) may intervene as a matter of right or otherwise
appear in a judicial proceeding involving or arising from an action
taken by an administrative agency in a proceeding in which the
public counsel previously appeared under the authority granted by
this chapter;
(3) may appear or intervene, as a party or otherwise,
as a matter of right on behalf of injured employees as a class in any
proceeding in which the public counsel determines that injured
employees are in need of representation, except that the public
counsel may not intervene in an enforcement or parens patriae
proceeding brought by the attorney general; and
(4) may appear or intervene before the commissioner of
workers' compensation commissioner of insurance, Texas Department
of Workers' Compensation or Texas Department of Insurance as a
party or otherwise, on behalf of injured employees as a class in a
matter involving rates, rules, or forms affecting injured employees
as a class in any proceeding in which the public counsel determines
that injured employees are in need of representation.
Sec. 404.105. AUTHORITY TO REPRESENT INJURED EMPLOYEES IN
ADMINISTRATIVE PROCEDURES. (a) The office, through the ombudsman
program, may appear before the commissioner of workers'
compensation or Texas Department of Workers' Compensation on behalf
of an individual injured employee during an administrative dispute
resolution process.
Sec. 404.106. LEGISLATIVE REPORT. (a) The office shall
report to the governor, lieutenant governor, speaker of the house
of representatives, and the chairs of the legislative committees
with appropriate jurisdiction not later than December 31 of each
even-numbered year. The report must include:
(1) a description of the activities of the office;
(2) identification of any problems in the workers'
compensation system from the perspective of injured employees as
considered by the public counsel, with recommendations for
regulatory and legislative action; and
(3) an analysis of the ability of the workers'
compensation system to provide adequate, equitable, and timely
benefits to injured employees at a reasonable cost to employers.
(b) The office shall coordinate with the workers'
compensation research and evaluation group to obtain needed
information and data to make the evaluations required for the
report.
(c) The office shall publish and disseminate the
legislative report to interested persons, and may charge a fee for
the publication as necessary to achieve optimal dissemination.
Sec. 404.107. ACCESS TO INFORMATION BY PUBLIC COUNSEL.
(a) The public counsel:
(1) is entitled to the same access as a party, other
than Texas Department of Workers' Compensation or Texas Department
of Insurance staff, to Texas Department of Workers' Compensation or
Texas Department of Insurance records available in a proceeding
before the commissioner of workers' compensation or commissioner,
insurance, Texas Department of Workers' Compensation or Texas
Department of Insurance under the authority granted to the public
counsel by this chapter; and
(2) is entitled to obtain discovery under Chapter
2001, Government Code, of any non-privileged matter that is
relevant to the subject matter involved in a proceeding or
submission before the commissioner of workers' compensation,
commissioner of insurance, Texas Department of Workers'
Compensation or Texas Department of Insurance as authorized by this
chapter.
Sec. 404.108. LEGISLATIVE RECOMMENDATIONS. The public
counsel may recommend proposed legislation to the legislature that
the public counsel determines would positively affect the interests
of injured employees.
Sec. 404.109. INJURED EMPLOYEE RIGHTS; NOTICE. The public
counsel shall submit to the Texas Department of Workers'
Compensation and Texas Department of Insurance for adoption by the
commissioners a notice of injured employee rights and
responsibilities to be distributed as provided by commissioner of
workers' compensation and commissioner of insurance rules.
Sec. 404.110. APPLICABILITY OF CONFIDENTIALITY
REQUIREMENTS. Confidentiality requirements applicable to
examination reports under Article 1.18, Insurance Code, and to the
commissioner under Section 3A, Article 21.28-A, Insurance Code,
apply to the public counsel.
Sec. 404.111. ACCESS TO INFORMATION. (a) The office is
entitled to information that is otherwise confidential under a law
of this state, including information made confidential under:
(1) Section 843.006, Insurance Code;
(2) Chapter 108, Health and Safety Code; and
(3) Chapter 552, Government Code.
(b) On request by the public counsel, the Texas Department
of Workers' Compensation or Texas Department of Insurance shall
provide any information or data requested by the office in
furtherance of the duties of the office under this chapter.
(c) The office may not make public any confidential
information provided to the office under this chapter but may
disclose a summary of the information that does not directly or
indirectly identify the individual or entity that is the subject of
the information. The office may not release, and an individual or
entity may not gain access to, any information that:
(1) could reasonably be expected to reveal the
identity of a doctor or an injured employee;
(2) reveals the zip code of an injured employee's
primary residence;
(3) discloses a provider discount or a differential
between a payment and a billed charge; or
(4) relates to an actual payment made by a payer to an
identified provider.
(c) Information collected or used by the office under this
chapter is subject to the confidentiality provisions and criminal
penalties of:
(1) Section 81.103, Health and Safety Code;
(2) Section 311.037, Health and Safety Code; and
(3) Chapter 159, Occupations Code.
(d) Information on doctors and injured employees that is in
the possession of the office, and any compilation, report, or
analysis produced from the information that identifies doctors and
injured employees is not:
(1) subject to discovery, subpoena, or other means of
legal compulsion for release to any individual or entity; or
(2) admissible in any civil, administrative, or
criminal proceeding.
(e) Notwithstanding Subsection (b)(2), the office may use
zip code information to analyze information on a geographical
basis.
Sec. 404.112. LITERACY AND BASIC SKILLS CURRICULUM.
(a) The office shall coordinate with the Texas Workforce
Commission and local workforce development boards to develop a
workplace literacy and basic skills curriculum designed to
eliminate the skills gap between employees and current and emerging
jobs.
(b) The public counsel may enter into memoranda of
understanding or other agreements with the Texas Workforce
Commission and local workforce development boards as necessary to
implement Subsection (a).
SECTION 5.09. Subchapter C, Chapter 409, Labor Code, is
redesignated as Subchapter D, Chapter 404, Labor Code, and Sections
409.041-409.044, Labor Code, are renumbered as Sections
404.151-404.154, Labor Code, and amended to read as follows:
SUBCHAPTER D [C]. OMBUDSMAN PROGRAM
Sec. 404.151 [409.041]. OMBUDSMAN PROGRAM. (a) The office
[commission] shall maintain an ombudsman program as provided by
this subchapter to assist injured employees [workers] and persons
claiming death benefits in obtaining benefits under this subtitle.
(b) An ombudsman shall:
(1) meet with or otherwise provide information to
injured employees [workers];
(2) investigate complaints;
(3) communicate with employers, insurance carriers,
and health care providers on behalf of injured employees [workers];
(4) assist unrepresented claimants, employers, and
other parties to enable those persons to protect their rights in the
workers' compensation system; and
(5) meet with an unrepresented claimant privately for
a minimum of 15 minutes prior to any informal or formal hearing.
Sec. 404.152 [409.042]. DESIGNATION AS OMBUDSMAN;
ELIGIBILITY AND TRAINING REQUIREMENTS; CONTINUING EDUCATION
REQUIREMENTS. (a) At least one specially qualified employee in
each Texas Department of Workers' Compensation [commission] office
shall be an ombudsman designated by the office [an ombudsman] who
shall perform the duties under this subchapter [section] as the
person's primary responsibility.
(b) To be eligible for designation as an ombudsman, a person
must:
(1) demonstrate satisfactory knowledge of the
requirements of:
(A) this subtitle and the provisions of Subtitle
C that relate to claims management;
(B) other laws relating to workers'
compensation; and
(C) rules adopted under this subtitle and the
laws described under Subdivision (1)(B);
(2) have demonstrated experience in handling and
resolving problems for the general public;
(3) possess strong interpersonal skills; and
(4) have at least one year of demonstrated experience
in the field of workers' compensation.
(c) The public counsel shall [commission] by rule [shall]
adopt training guidelines and continuing education requirements
for ombudsmen. Training provided under this subsection must:
(1) include education regarding this subtitle and[,]
rules adopted under this subtitle, [and appeals panel decisions,]
with emphasis on benefits and the dispute resolution process; and
(2) require an ombudsman undergoing training to be
observed and monitored by an experienced ombudsman during daily
activities conducted under this subchapter.
Sec. 404.153 [409.043]. EMPLOYER NOTIFICATION;
ADMINISTRATIVE VIOLATION. (a) Each employer shall notify its
employees of the ombudsman program in the [a] manner prescribed by
the office [commission].
Sec. 404.154 [409.044]. PUBLIC INFORMATION. The office
[commission] shall widely disseminate information about the
ombudsman program."
(2) Amend Article 7 of the committee printing of C.S.S.B. 5
by inserting appropriately numbered SECTIONS as follows:
"SECTION 7.__. OFFICE OF INJURED EMPLOYEE COUNSEL.
(a) The office of injured employee counsel created under Chapter
404, Labor Code, as added by this Act, is established September 1,
2005.
(b) The governor shall appoint the injured employee public
counsel of the office of injured employee counsel not later than
October 1, 2005.
(c) The injured employee public counsel of the office of
injured employee counsel shall adopt initial rules for the office
under Section 404.006, Labor Code, as added by this Act, not later
than March 1, 2006.
(d) The Texas Department of Workers' Compensation shall
provide, in Austin and in each regional office operated by the
department to administer Subtitle A, Title 5, Labor Code, as
amended by this Act, suitable office space, personnel, computer
support, and other administrative support to the office of injured
employee counsel as required by Chapter 404, Labor Code, as added by
this Act. The department shall provide the facilities and support
not later than October 1, 2005.
(e) All powers, duties, obligations, rights, contracts,
funds, unspent appropriations, records, real or personal property,
and personnel of the Texas Workers' Compensation Commission
relating to the operation of the workers' compensation ombudsman
program under Subchapter C, Chapter 409, Labor Code, as that
subchapter existed before amendment by this Act, shall be
transferred to the office of injured employee counsel not later
than March 1, 2006. An ombudsman transferred to the office of
injured employee counsel under this section shall begin providing
services under Chapter 404, Labor Code, as added by this Act, not
later than March 1, 2006.
SECTION 7.__. BUDGET EXECUTION AUTHORITY. Notwithstanding
Section 317.005(e), Government Code, the Legislative Budget Board
may adopt an order under Section 317.005, Government Code,
affecting any portion of the total appropriation of the Texas
Department of Workers' Compensation or Office of Injured Employee
Counsel if necessary to implement the provisions of this Act. This
section expires March 31, 2006.
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