82R19571 JSC-D

By: Taylor of Galveston H.B. No. 2605

Substitute the following for H.B. No. 2605:

By: Cook C.S.H.B. No. 2605

A BILL TO BE ENTITLED

AN ACT

relating to the continuation and functions of the division of workers' compensation of the Texas Department of Insurance.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 31.004(b), Insurance Code, is amended to read as follows:

(b) Unless continued as provided by Chapter 325, Government Code, the duties of the division of workers' compensation of the Texas Department of Insurance under Title 5, Labor Code, expire September 1, 2017 [2011], or another date designated by the legislature.

SECTION 2. Sections 1305.355(e), (f), and (g), Insurance Code, are amended to read as follows:

(e) A party to a medical dispute that remains unresolved after a review under this section is entitled to a hearing and [may seek] judicial review of the decision in accordance with Section 1305.356. The division of workers' compensation and the department are not considered to be parties to the medical dispute.

(f) A determination of an independent review organization related to a request for preauthorization or concurrent review is binding during the pendency of a dispute [any appeal,] and the carrier and network shall comply with the determination.

(g) If a contested case hearing or judicial review is not sought under Section 1305.356 [this section], the carrier and network shall comply with the independent review organization's determination.

SECTION 3. Subchapter H, Chapter 1305, Insurance Code, is amended by adding Section 1305.356 to read as follows:

Sec. 1305.356. CONTESTED CASE HEARING ON AND JUDICIAL REVIEW OF INDEPENDENT REVIEW. (a) A party to a medical dispute that remains unresolved after a review under Section 1305.355 is entitled to a contested case hearing. A hearing under this subsection shall be conducted by the department's division of workers' compensation in the same manner as a hearing conducted under Section 413.0311, Labor Code.

(b) At a contested case hearing held under Subsection (a), the hearing officer conducting the hearing shall consider evidence-based treatment guidelines adopted by the network under Section 1305.304.

(c) A party that has exhausted all administrative remedies under Subsection (a) and is aggrieved by a final decision of the department's division of workers' compensation may seek judicial review of the decision.

(d) Judicial review under Subsection (c) shall be conducted in the manner provided for judicial review of a contested case under Subchapter G, Chapter 2001, Government Code, and is governed by the substantial evidence rule.

SECTION 4. Section 2051.151(e), Insurance Code, is amended to read as follows:

(e) An insurance company that fails to comply with this section commits an [a Class D] administrative violation under Subtitle A, Title 5, Labor Code.

SECTION 5. Section 2053.206(a), Insurance Code, is amended to read as follows:

(a) A person commits an [a Class A] administrative violation under Subtitle A, Title 5, Labor Code, if the person engages in conduct that violates this subchapter.

SECTION 6. Section 402.023, Labor Code, is amended by adding Subsection (c-1) to read as follows:

(c-1) The division shall adopt a policy outlining the division's complaint process from receipt of the initial complaint to the complaint's disposition.

SECTION 7. Subchapter B, Chapter 402, Labor Code, is amended by adding Section 402.0231 to read as follows:

Sec. 402.0231. DOCUMENTATION AND ANALYSIS OF COMPLAINTS. (a) The division shall develop procedures to formally document and analyze complaints received by the division.

(b) The division shall compile detailed statistics on all complaints received and analyze complaint information trends, including:

(1) the number of complaints;

(2) the source of each complaint;

(3) the types of complaints;

(4) the length of time from the receipt of the complaint to its disposition; and

(5) the disposition of complaints.

(c) The division shall further analyze the information compiled under Subsection (b) by field office and by program.

(d) The division shall report the information compiled and analyzed under Subsections (b) and (c) to the commissioner at regular intervals.

SECTION 8. Section 402.073, Labor Code, is amended by amending Subsections (b) and (c) and adding Subsections (d) and (e) to read as follows:

(b) In a case in which a hearing is conducted by the State Office of Administrative Hearings under Section 413.031 or [,] 413.055, [or 415.034,] the administrative law judge who conducts the hearing for the State Office of Administrative Hearings shall enter the final decision in the case after completion of the hearing.

(c) In a case in which a hearing is conducted in conjunction with Section 402.072, 407.046, [or] 408.023, or 415.034, and in other cases under this subtitle that are not subject to Subsection (b), the administrative law judge who conducts the hearing for the State Office of Administrative Hearings shall propose a decision to the commissioner for final consideration and decision by the commissioner.

(d) The notice of the commissioner's order must include a statement of the right of the person to judicial review of the order.

(e) In issuing an order under this section, the commissioner shall comply with the requirements applicable to a state agency under Section 2001.058, Government Code.

SECTION 9. Section 403.001(a), Labor Code, is amended to read as follows:

(a) Except as provided by Sections 403.006, [and] 403.007, and 403.008, or as otherwise provided by law, money collected under this subtitle, including [administrative penalties and] advance deposits for purchase of services, shall be deposited in the general revenue fund of the state treasury to the credit of the Texas Department of Insurance operating account.

SECTION 10. Chapter 403, Labor Code, is amended by adding Section 403.008 to read as follows:

Sec. 403.008. DEPOSIT OF ADMINISTRATIVE PENALTIES. Administrative penalties collected under this subtitle shall be deposited in the general revenue fund.

SECTION 11. Section 408.0041, Labor Code, is amended by amending Subsection (b) and adding Subsection (b-1) to read as follows:

(b) Except as provided by Section 408.1225(f), a [A] medical examination requested under Subsection (a) shall be performed by the next available doctor on the division's list of certified designated doctors whose credentials are appropriate for the area of the body affected by the injury [issue in question] and the injured employee's diagnosis [medical condition] as determined by commissioner rule. [A designated doctor, other than a chiropractor, is subject to Section 408.0043. A designated doctor who is a chiropractor is subject to Section 408.0045.] The division shall assign a designated doctor not later than the 10th day after the date on which the request under Subsection (a) is approved, and the examination must be conducted not later than the 21st day after the date on which the commissioner issues the order under Subsection (a). An examination under this section may not be conducted more frequently than every 60 days, unless good cause for more frequent examinations exists, as defined by commissioner rules.

(b-1) A designated doctor, other than a chiropractor, is subject to Section 408.0043. A designated doctor who is a chiropractor is subject to Section 408.0045. To the extent of a conflict between this section and Section 408.0043 or 408.0045, this section controls.

SECTION 12. Section 408.022, Labor Code, is amended by amending Subsections (b) and (c) and adding Subsections (c-1) and (c-2) to read as follows:

(b) If an employee is dissatisfied with the initial choice of a doctor [from the division's list], the employee may notify the insurance carrier [division] and request authority to select an alternate doctor. The notification must be in writing stating the reasons for the change, except notification may be by telephone when a medical necessity exists for immediate change.

(c) The commissioner shall prescribe criteria to be used by an insurance carrier [the division] in granting the employee authority to select an alternate doctor. The criteria may include:

(1) whether treatment by the current doctor is medically inappropriate;

(2) the professional reputation of the doctor;

(3) whether the employee is receiving appropriate medical care to reach maximum medical improvement; and

(4) whether a conflict exists between the employee and the doctor to the extent that the doctor-patient relationship is jeopardized or impaired.

(c-1) The employee may dispute a denial of authority to select an alternate doctor. A dispute under this subsection is subject to Chapter 410.

(c-2) The commissioner shall adopt rules to implement this section, including procedures for disputing a denial of authority.

SECTION 13. Section 408.085, Labor Code, is amended to read as follows:

Sec. 408.085. ADVANCE OF BENEFITS FOR HARDSHIP. (a) If there is a likelihood that income benefits will be paid, the insurance carrier [commissioner] may grant an employee suffering financial hardship advances as provided by this subtitle against the amount of income benefits to which the employee may be entitled. An advance may be granted [ordered] before or after the employee attains maximum medical improvement. [An insurance carrier shall pay the advance ordered.]

(b) An employee must apply to the insurance carrier [division] for an advance on a form prescribed by the commissioner. The application must describe the hardship that is the grounds for the advance.

(c) An advance under this section may not exceed an amount equal to four times the maximum weekly benefit for temporary income benefits as computed in Section 408.061. An insurance carrier [The commissioner] may not grant more than three advances to a particular employee based on the same injury.

(d) An insurance carrier [The commissioner] may not grant an advance to an employee who is receiving, on the date of the application under Subsection (b), at least 90 percent of the employee's net preinjury wages under Section 408.003 or 408.129.

(e) The employee may dispute a denial or the amount of an advance of benefits. A dispute under this subsection is subject to Chapter 410.

(f) The commissioner shall adopt rules to implement this section, including procedures for requesting an advance of benefits and disputing the denial or the amount of an advance of benefits.

SECTION 14. Sections 408.104(a) and (b), Labor Code, are amended to read as follows:

(a) On application by [either] the employee, [or] the insurance carrier[, the commissioner by order] may extend the 104-week period described by Section 401.011(30)(B) if the employee has had spinal surgery, or has been approved for spinal surgery under Section 408.026 and commissioner rules, within 12 weeks before the expiration of the 104-week period. If the insurance carrier grants an extension [an order is issued] under this section, the insurance carrier [order] shall extend the statutory period for maximum medical improvement to a date certain, based on medical evidence presented to the insurance carrier [commissioner].

(b) The [Either the] employee [or the insurance carrier] may dispute the disposition of an application for extension made under this section. A dispute under this subsection is subject to Chapter 410.

SECTION 15. Section 408.1225, Labor Code, is amended by amending Subsections (a), (b), and (e) and adding Subsections (a-1), (a-2), (a-3), (a-4), (a-5), and (f) to read as follows:

(a) To be eligible to serve as a designated doctor, a doctor must maintain an active certification by the division [meet specific qualifications, including training in the determination of impairment ratings and demonstrated expertise in performing examinations and making evaluations as described by Section 408.0041. The commissioner shall develop qualification standards and administrative policies to implement this subsection and may adopt rules as necessary].

(a-1) The commissioner by rule shall develop a process for the certification of a designated doctor.

(a-2) The rules adopted by the commissioner under Subsection (a-1) must:

(1) require the division to evaluate the qualification of designated doctors for certification using eligibility requirements, including:

(A) educational experience;

(B) previous training; and

(C) demonstrated ability to perform the specific designated doctor duties described by Section 408.0041; and

(2) require standard training and testing to be completed in accordance with policies and guidelines developed by the division.

(a-3) The division shall develop guidelines for certification training programs for certification of a designated doctor under Subsection (a-1) to ensure a designated doctor's competency and continued competency in providing assessments, including:

(1) a standard curriculum;

(2) standard course materials; and

(3) testing criteria.

(a-4) The division shall develop and implement a procedure to periodically review and update the guidelines developed under Subsection (a-3).

(a-5) The division may authorize an independent training and testing provider to conduct the certification program for the division under the guidelines developed under Subsection (a-3).

(b) The commissioner shall ensure the quality of designated doctor decisions and reviews through active monitoring of the decisions and reviews, and may take action as necessary to:

(1) restrict the participation of a designated doctor; [or]

(2) deny renewal of [remove] a [doctor from inclusion on the department's list of] designated doctor's certification; or

(3) revoke a designated doctor's certification under Section 413.044 [doctors].

(e) A designated doctor, other than a chiropractor, is subject to Section 408.0043. A designated doctor who is a chiropractor is subject to Section 408.0045. To the extent of a conflict between this section and Section 408.0043 or 408.0045, this section controls.

(f) A designated doctor shall continue providing services related to a case assigned to the designated doctor, including performing subsequent examinations or acting as a resource for division disputes, unless the division authorizes the designated doctor to discontinue providing services. The commissioner by rule shall prescribe the circumstances under which a designated doctor is permitted to discontinue providing services, including:

(1) the doctor decides to stop practicing in the workers' compensation system; or

(2) the doctor relocates the doctor's residence or practice.

SECTION 16. Section 408.129, Labor Code, is amended by amending Subsections (a), (b), and (d) and adding Subsection (e) to read as follows:

(a) On approval by an insurance carrier [the commissioner] of a written request received from an employee, the [an insurance] carrier shall accelerate the payment of impairment income benefits to the employee. The accelerated payment may not exceed a rate of payment equal to that of the employee's net preinjury wage.

(b) An insurance carrier [The commissioner] shall approve the request and accelerate [order the acceleration of] the benefits if the carrier [commissioner] determines that the acceleration is:

(1) required to relieve hardship; and

(2) in the overall best interest of the employee.

(d) The employee may dispute a denial or the amount of an acceleration of benefits. A dispute under this subsection is subject to Chapter 410.

(e) The commissioner shall adopt rules [may prescribe forms necessary] to implement this section, including procedures for requesting an acceleration of benefits and disputing the denial or the amount of an acceleration of benefits.

SECTION 17. Section 408.141, Labor Code, is amended to read as follows:

Sec. 408.141. AWARD OF SUPPLEMENTAL INCOME BENEFITS. An award of a supplemental income benefit[, whether by the commissioner or a court,] shall be made in accordance with this subchapter.

SECTION 18. Section 408.1415, Labor Code, is amended by amending Subsection (a) and adding Subsections (d) and (e) to read as follows:

(a) The commissioner by rule shall adopt compliance standards for supplemental income benefit recipients that require each recipient to demonstrate an active effort to obtain employment, including [. To be eligible to receive supplemental income benefits under this chapter, a recipient must provide evidence satisfactory to the division of]:

(1) active participation in a vocational rehabilitation program conducted by the Department of Assistive and Rehabilitative Services or a private vocational rehabilitation provider;

(2) active participation in work search efforts conducted through the Texas Workforce Commission; or

(3) active work search efforts documented by job applications submitted by the recipient.

(d) To be eligible to receive supplemental income benefits under this subchapter, a recipient must provide evidence satisfactory to the insurance carrier that the recipient has complied with the standards adopted by the commissioner under Subsection (a).

(e) The employee may dispute a denial of supplemental income benefits by an insurance carrier under this section. A dispute under this subsection is subject to Chapter 410. The commissioner by rule shall adopt procedures for disputing the denial of benefits.

SECTION 19. Section 408.143(a), Labor Code, is amended to read as follows:

(a) An [After the commissioner's initial determination of supplemental income benefits, the] employee seeking supplemental income benefits must file a statement with the insurance carrier stating:

(1) that the employee has earned less than 80 percent of the employee's average weekly wage as a direct result of the employee's impairment;

(2) the amount of wages the employee earned in the filing period provided by Subsection (b); and

(3) that the employee has complied with the requirements adopted under Section 408.1415.

SECTION 20. Section 408.147, Labor Code, is amended to read as follows:

Sec. 408.147. CONTEST OF SUPPLEMENTAL INCOME BENEFITS BY INSURANCE CARRIER; ATTORNEY'S FEES. [(a) An insurance carrier may request a benefit review conference to contest an employee's entitlement to supplemental income benefits or the amount of supplemental income benefits.

[(b) If an insurance carrier fails to make a request for a benefit review conference within 10 days after the date of the expiration of the impairment income benefit period or within 10 days after receipt of the employee's statement, the insurance carrier waives the right to contest entitlement to supplemental income benefits and the amount of supplemental income benefits for that period of supplemental income benefits.

[(c)] If an insurance carrier denies an employee's entitlement [disputes the commissioner's determination that an employee is entitled] to supplemental income benefits or there is a dispute regarding the amount of supplemental income benefits due and the employee prevails on any disputed issue, the insurance carrier is liable for reasonable and necessary attorney's fees incurred by the employee as a result of the [insurance carrier's] dispute and for supplemental income benefits accrued but not paid and interest on that amount, according to Section 408.064. Attorney's fees awarded under this section [subsection] are not subject to Sections 408.221(b), (f), and (i).

SECTION 21. Section 408.149(b), Labor Code, is amended to read as follows:

(b) Either party may request a benefit review conference to contest a determination of the commissioner at any time[, subject only to the limits placed on the insurance carrier by Section 408.147].

SECTION 22. Section 408.151(a), Labor Code, is amended to read as follows:

(a) On or after the second anniversary of the date the employee is initially awarded [commissioner makes the initial award of] supplemental income benefits, an insurance carrier may not require an employee who is receiving supplemental income benefits to submit to a medical examination more than annually if, in the preceding year, the employee's medical condition resulting from the compensable injury has not improved sufficiently to allow the employee to return to work.

SECTION 23. Section 408.221(b), Labor Code, is amended to read as follows:

(b) Except as otherwise provided, an attorney's fee under this section is based on the attorney's time and expenses according to written evidence presented to the division or court. Except as provided by Subsection (c) or Section 408.147 [408.147(c)], the attorney's fee shall be paid from the claimant's recovery.

SECTION 24. Section 409.021(e), Labor Code, is amended to read as follows:

(e) An insurance carrier commits an administrative [a] violation if the insurance carrier does not initiate payments or file a notice of refusal as required by this section. [A violation under this subsection shall be assessed at $500 if the carrier initiates compensation or files a notice of refusal within five working days of the date required by Subsection (a), $1,500 if the carrier initiates compensation or files a notice of refusal more than five and less than 16 working days of the date required by Subsection (a), $2,500 if the carrier initiates compensation or files a notice of refusal more than 15 and less than 31 working days of the date required by Subsection (a), or $5,000 if the carrier initiates compensation or files a notice of refusal more than 30 days after the date required by Subsection (a). The administrative penalties are not cumulative.]

SECTION 25. Section 410.023, Labor Code, is amended by amending Subsection (b) and adding Subsections (c) and (d) to read as follows:

(b) The division shall require the party requesting the benefit review conference to provide documentation of efforts made to resolve the disputed issues before the request was submitted.

(c) The commissioner by rule shall:

(1) adopt guidelines regarding the type of information necessary to satisfy the requirements of Subsection (b); and

(2) establish a process through which the division evaluates the sufficiency of the documentation provided under Subsection (b) [this requirement].

(d) The division may deny a request for a benefit review conference if the party requesting the benefit review conference does not provide the documentation required under Subsection (b).

SECTION 26. Section 410.028, Labor Code, is amended to read as follows:

Sec. 410.028. FAILURE TO ATTEND; ADMINISTRATIVE VIOLATION. (a) A scheduled benefit review conference shall be conducted even though a party fails to attend unless the benefit review officer determines that good cause, as defined by commissioner rule, exists to reschedule the conference.

(b) If a party to a benefit review conference under Section 410.023 requests that the benefit review conference be rescheduled under this section, the party must submit a request in the same manner as an initial request under Section 410.023. The division shall evaluate a request for a rescheduled benefit review conference received under this section in the same manner as an initial request received under Section 410.023.

(c) If a [A party commits an administrative violation if the] party fails to request that a benefit review conference be rescheduled in the time required by commissioner rule or fails to attend a benefit review conference without good cause as defined [determined] by commissioner rule, the party forfeits the party's entitlement to attend a benefit review conference on the issue in dispute, unless a [the] benefit review officer is authorized to schedule an additional benefit review conference under Section 410.026(b).

(d) The commissioner shall adopt rules necessary to implement and enforce this section, including rules that:

(1) define good cause; and

(2) establish deadlines for requesting that a benefit review conference be rescheduled under Subsection (b).

SECTION 27. Section 410.203(b), Labor Code, is amended to read as follows:

(b) The appeals panel may:

(1) reverse the decision of the hearings officer and render a new decision; [or]

(2) reverse the decision of the hearings officer and remand the case to the hearing officer for further consideration and development of evidence; or

(3) affirm the decision of the hearings officer in a case described by Section 410.204(a-1).

SECTION 28. Section 410.204, Labor Code, is amended by amending Subsection (a) and adding Subsection (a-1) to read as follows:

(a) The appeals panel shall review each request and issue a written decision on each reversed or remanded case. The appeals panel may issue a written decision on an affirmed case as described by Subsection (a-1). The decision must be in writing and shall be issued not later than the 45th day after the date on which the written response to the request for appeal is filed. The appeals panel shall file a copy of the decision with the commissioner.

(a-1) An appeals panel may only issue a written decision in a case in which the panel affirms the decision of a hearings officer if the case:

(1) is a case of first impression;

(2) involves a recent change in law; or

(3) involves errors at the contested case hearing that require correction but do not affect the outcome of the hearing, including:

(A) findings of fact for which insufficient evidence exists;

(B) incorrect conclusions of law;

(C) findings of fact or conclusions of law regarding matters that were not properly before the hearings officer; and

(D) legal errors not otherwise described by this subdivision.

SECTION 29. Sections 413.031(k) and (k-1), Labor Code, are amended to read as follows:

(k) A party to a medical dispute [, other than a medical dispute regarding spinal surgery subject to Subsection (l) and a dispute subject to Section 413.0311,] that remains unresolved after a review of the medical service under this section is entitled to a hearing under Section 413.0311 or 413.0312, as applicable. [A hearing under this subsection shall be conducted by the State Office of Administrative Hearings not later than the 60th day after the date on which the party notifies the division of the request for a hearing. The hearing shall be conducted in the manner provided for a contested case under Chapter 2001, Government Code.]

(k-1) A party who has exhausted all administrative remedies described by [under] Subsection (k) and who is aggrieved by a final decision of the division or the State Office of Administrative Hearings may seek judicial review of the decision. Judicial review under this subsection shall be conducted in the manner provided for judicial review of a contested case under Subchapter G, Chapter 2001, Government Code.

SECTION 30. The heading to Section 413.0311, Labor Code, is amended to read as follows:

Sec. 413.0311. REVIEW OF [CERTAIN] MEDICAL NECESSITY DISPUTES; CONTESTED CASE HEARING.

SECTION 31. Section 413.0311(a), Labor Code, is amended to read as follows:

(a) This section applies only to [the following medical disputes that remain unresolved after any applicable review under Sections 413.031(b) through (i):

[(1) a medical fee dispute in which the amount of reimbursement sought by the requestor in its request for medical dispute resolution does not exceed $2,000;

[(2)] an appeal of an independent review organization decision regarding determination of the [retrospective] medical necessity for a health care service [for which the amount billed does not exceed $3,000; and

[(3) an appeal of an independent review organization decision regarding determination of the concurrent or prospective medical necessity for a health care service].

SECTION 32. Subchapter C, Chapter 413, Labor Code, is amended by adding Section 413.0312 to read as follows:

Sec. 413.0312. REVIEW OF MEDICAL FEE DISPUTES; BENEFIT REVIEW CONFERENCE. (a) This section applies only to a medical fee dispute that remains unresolved after any applicable review under Sections 413.031(b) through (i).

(b) Subject to Subsection (e), a party to a medical fee dispute described by Subsection (a) must adjudicate the dispute in the manner required by Subchapter B, Chapter 410.

(c) At a benefit review conference conducted under this section, the parties to the dispute may not resolve the dispute by negotiating fees that are inconsistent with any applicable fee guidelines adopted by the commissioner.

(d) If issues remain unresolved after a benefit review conference, the parties may elect to engage in arbitration as provided by Section 410.104.

(e) If arbitration is not elected as described by Subsection (d), a party to a medical fee dispute described by Subsection (a) is entitled to a contested case hearing. A hearing under this subsection shall be conducted by the State Office of Administrative Hearings in the manner provided for a contested case under Chapter 2001, Government Code.

(f) The commissioner or the division may participate in a contested case hearing conducted under Subsection (e) if the hearing involves the interpretation of fee guidelines adopted by the commissioner. The division and the department are not considered to be parties to the medical fee dispute for purposes of this section.

(g) The cost of the contested case hearing shall be paid by the nonprevailing party.

SECTION 33. Section 413.044(b), Labor Code, is amended to read as follows:

(b) Sanctions imposed under Subsection (a) may include:

(1) revocation of certification for a designated doctor on [removal or suspension from] the division list of designated doctors; or

(2) restrictions on the reviews made by the person as a designated doctor.

SECTION 34. Section 413.0512, Labor Code, is amended by amending Subsections (b), (c), (d), (e), and (f) and adding Subsections (g) and (h) to read as follows:

(b) The agencies that regulate health professionals who are licensed or otherwise authorized to practice a health profession under Title 3, Occupations Code, and who are involved in the provision of health care as part of the workers' compensation system in this state [Texas State Board of Medical Examiners and the Texas Board of Chiropractic Examiners, with input from their respective professional associations,] shall develop lists of health care providers [physicians and chiropractors] licensed or otherwise regulated by those agencies who have demonstrated experience in workers' compensation or utilization review. The medical advisor shall consider appointing some of the members of the medical quality review panel from the names on those lists and, when appointing members of the medical quality review panel, shall select specialists from various health care specialty fields to serve on the panel to ensure that the membership of the panel has expertise in a wide variety of health care specialty fields. The medical advisor shall also consider nominations for the panel made by labor, business, and insurance organizations.

(c) The medical quality review panel shall recommend to the medical advisor:

(1) appropriate action regarding doctors, other health care providers, insurance carriers, utilization review agents, and independent review organizations; [and]

(2) the addition or deletion of doctors from the list of approved doctors under Section 408.023; and

(3) the certification, revocation of certification, or denial of renewal of certification [or the list] of a designated doctor [doctors established] under Section 408.1225.

(d) A person who serves on the medical quality review panel is immune from suit and from civil liability for an act performed, or a recommendation made, within the scope of the person's functions as a member of the panel if the person acts without malice and in the reasonable belief that the action or recommendation is warranted by the facts known to that person. In the event of a civil action brought against a member of the panel that arises from the person's participation on the panel, the person is entitled to the same protections afforded the commissioner [a commission member] under Section 402.00123 [402.010].

(e) The actions of a person serving on the medical quality review panel do not constitute utilization review and are not subject to Chapter 4201 [Article 21.58A], Insurance Code.

(f) A member of the medical quality review panel[, other than a chiropractor,] who reviews a specific workers' compensation case is subject to Section 408.0043, 408.0044, or [. A chiropractor who reviews a specific workers' compensation case is subject to Section] 408.0045, as applicable.

(g) The medical advisor shall notify the division if the medical advisor determines that:

(1) it is no longer necessary for the medical quality review panel to include a member that practices in a particular health care specialty field; or

(2) there is a need for the panel to include a member that practices in a particular health care specialty field not represented on the panel.

(h) If the division receives notice from the medical advisor under Subsection (g)(2), the division may enter into agreements with other state agencies to access, as necessary, expertise in that health care specialty field.

SECTION 35. Subchapter E, Chapter 413, Labor Code, is amended by adding Sections 413.05115, 413.05121, and 413.05122 to read as follows:

Sec. 413.05115. MEDICAL QUALITY REVIEW PROCESS. (a) The division shall develop, and the commissioner shall adopt, criteria concerning the medical case review process under this subchapter. In developing the criteria, and before adopting the criteria, the division and the commissioner, as applicable, must consult with the medical advisor and seek input from potentially affected parties, including health care providers and insurance carriers.

(b) The criteria developed and adopted under this section must establish a clear process or processes:

(1) for handling complaint-based medical case reviews; and

(2) through which the division selects health care providers or other entities for a compliance audit or review.

(c) The division shall make the criteria developed and adopted under this section available on the Internet website maintained by the division.

Sec. 413.05121. QUALITY ASSURANCE PANEL. (a) The medical advisor shall establish the quality assurance panel within the medical quality review panel to:

(1) provide an additional level of evaluation in medical case reviews; and

(2) assist the medical advisor in performing the advisor's duties under Section 413.0511(b)(6) and the medical quality review panel in performing that panel's duties under Section 413.0512.

(b) Members of the quality assurance panel shall evaluate medical care and recommend enforcement actions to the medical advisor.

(c) The quality assurance panel shall meet periodically to discuss issues and otherwise offer assistance to the medical advisor and the medical quality review panel under Subsection (a)(2).

Sec. 413.05122. MEDICAL QUALITY REVIEW PANEL: RULES; TRAINING. (a) The commissioner, after consultation with the medical advisor, shall adopt rules concerning the operation of the medical quality review panel, including rules that establish:

(1) the qualifications necessary for a health care provider to serve on the medical quality review panel;

(2) the composition of the medical quality review panel, including the number of members to be included on the panel and the health care specialty fields required to be represented by the members of the panel;

(3) the maximum length of time a health care provider may serve on the medical quality review panel;

(4) a policy defining situations that constitute a conflict of interest for a member of the medical quality review panel;

(5) procedures and grounds for removing a member of the medical quality review panel from the panel, including as a ground for removal that a member is repeatedly delinquent in conducting case reviews; and

(6) a procedure through which members of the medical quality review panel are notified concerning the status and enforcement outcomes of cases resulting from the medical quality review process.

(b) In addition to the rules required under Subsection (a), the commissioner shall adopt rules concerning the training requirements for members of the medical quality review panel. The rules adopted under this subsection must ensure that panel members are fully aware of any requirements imposed by this subtitle concerning the medical quality review process and the division's goals concerning the process. The rules adopted under this subsection may require members to receive training on any topic determined by the division or the commissioner to be relevant to the operations of the panel and must require members of the panel to receive training concerning:

(1) administrative violations that affect the delivery of appropriate medical care;

(2) the confidentiality requirements described by Section 413.0513 and the immunity from liability provided to members of the panel under Section 413.054; and

(3) the medical quality review criteria adopted under Section 413.05115.

SECTION 36. Section 413.054(a), Labor Code, is amended to read as follows:

(a) A person who performs services for the division as a designated doctor, an independent medical examiner, a doctor performing a medical case review, or a member of a peer review panel has the same immunity from liability as the commissioner under Section 402.00123 [402.0024].

SECTION 37. Section 414.005, Labor Code, is amended to read as follows:

Sec. 414.005. INVESTIGATION UNIT. (a) The division shall maintain an investigation unit to conduct investigations relating to alleged violations of this subtitle, commissioner rules, or a commissioner order or decision, with particular emphasis on violations of Chapters 415 and 416.

(b) As often as the commissioner considers necessary, the commissioner or the investigation unit may review the operations of a person regulated by the division, including an agent of the person performing functions regulated by the division, to determine compliance with this subtitle.

(c) The review described by Subsection (b) may include on-site visits to the person's premises. The commissioner is not required to announce an on-site visit in advance.

(d) During an on-site visit, a person regulated by the division shall make available to the division all records relating to the person's participation in the workers' compensation system.

(e) The commissioner by rule shall prescribe the procedures to be used for both announced and unannounced on-site visits authorized under this section, including specifying the records subject to inspection.

SECTION 38. Section 415.0035(e), Labor Code, is amended to read as follows:

(e) A person regulated by the division under this title [An insurance carrier or health care provider] commits an administrative violation if the [that] person violates this subtitle or a rule, order, or decision of the commissioner.

SECTION 39. Section 415.008(a), Labor Code, is amended to read as follows:

(a) A person commits an administrative [a] violation if the person, to obtain or deny a payment of a workers' compensation benefit or the provision of a benefit for the person or another, knowingly or intentionally:

(1) makes a false or misleading statement;

(2) misrepresents or conceals a material fact;

(3) fabricates, alters, conceals, or destroys a document; or

(4) conspires to commit an act described by Subdivision (1), (2), or (3).

SECTION 40. Sections 415.009 and 415.010, Labor Code, are amended to read as follows:

Sec. 415.009. FRIVOLOUS ACTIONS; ADMINISTRATIVE VIOLATION. [(a)] A person commits an administrative [a] violation if the person brings, prosecutes, or defends an action for benefits under this subtitle or requests initiation of an administrative violation proceeding that does not have a basis in fact or is not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.

[(b) A violation under Subsection (a) is a Class B administrative violation.]

Sec. 415.010. BREACH OF AGREEMENT; ADMINISTRATIVE VIOLATION. [(a)] A party to an agreement approved by the division commits an administrative [a] violation if the person breaches a provision of the agreement.

[(b) A violation under Subsection (a) is a Class C administrative violation.]

SECTION 41. The heading to Subchapter B, Chapter 415, Labor Code, is amended to read as follows:

SUBCHAPTER B. SANCTIONS [PENALTIES]

SECTION 42. Section 415.021(a), Labor Code, is amended to read as follows:

(a) In addition to any other provisions in this subtitle relating to violations, a person commits an administrative violation if the person violates, fails to comply with, or refuses to comply with this subtitle or a rule, order, or decision of the commissioner, including an emergency cease and desist order issued under Section 415.0211. In addition to any sanctions, administrative penalty, or other remedy authorized by this subtitle, the commissioner may assess an administrative penalty against a person who commits an administrative violation. The administrative penalty shall not exceed $25,000 per day per occurrence. Each day of noncompliance constitutes a separate violation. The commissioner's authority under this chapter is in addition to any other authority to enforce a sanction, penalty, fine, forfeiture, denial, suspension, or revocation otherwise authorized by law.

SECTION 43. Subchapter B, Chapter 415, Labor Code, is amended by adding Section 415.0211 to read as follows:

Sec. 415.0211. EMERGENCY CEASE AND DESIST ORDER. (a) The commissioner ex parte may issue an emergency cease and desist order if:

(1) the commissioner believes a person regulated by the division under this title is engaging in conduct violating a law, rule, or order; and

(2) the commissioner believes that the alleged conduct under Subdivision (1) will result in harm to the health, safety, or welfare of another person.

(b) On issuance of an order under Subsection (a), the commissioner shall serve on the affected person an order that contains a statement of the charges and requires the person immediately to cease and desist from the acts, methods, or practices stated in the order. The commissioner shall serve the order by registered or certified mail, return receipt requested, to the affected person's last known address. The order is final on the 31st day after the date the affected person receives the order, unless the affected person requests a hearing under Subsection (c).

(c) A person affected by an order is entitled to request a hearing to contest the order. The affected person must request the hearing not later than the 30th day after the date the person receives the order required by Subsection (b). A request to contest an order must:

(1) be in writing;

(2) be directed to the commissioner; and

(3) state the grounds for the request to set aside or modify the order.

(d) On receiving a request for a hearing, the commissioner shall serve notice of the time and place of the hearing. The hearing is subject to the procedures for a contested case under Chapter 2001, Government Code. The hearing shall be held not later than the 10th day after the date the commissioner receives the request for a hearing unless the parties mutually agree to a later hearing date. At the hearing, the person requesting the hearing is entitled to show cause why the order should not be affirmed. Following receipt of the proposal for decision from the State Office of Administrative Hearings regarding the hearing, the commissioner shall wholly or partly affirm, modify, or set aside the order.

(e) Pending a hearing under this section, an order continues in effect unless the order is stayed by the commissioner.

SECTION 44. Section 402.072, Labor Code, is transferred to Subchapter B, Chapter 415, Labor Code, and redesignated as Section 415.0215, Labor Code, to read as follows:

Sec. 415.0215 [402.072]. SANCTIONS. (a) The division may impose sanctions against any person regulated by the division under this subtitle.

(b) Only the commissioner may impose:

(1) a sanction that deprives a person of the right to practice before the division or of the right to receive remuneration under this subtitle for a period exceeding 30 days; or

(2) another sanction suspending for more than 30 days or revoking a license, certification, or permit required for practice in the field of workers' compensation.

(c) A sanction imposed by the division is binding pending appeal.

SECTION 45. Sections 415.025, 415.032, 415.033, and 415.034, Labor Code, are amended to read as follows:

Sec. 415.025. REFERENCES TO A CLASS OF VIOLATION OR PENALTY. A reference in this code or other law, or in rules of the former Texas Workers' Compensation Commission or the commissioner, to a particular class of violation, administrative violation, or penalty shall be construed as a reference to an administrative penalty. An [Except as otherwise provided by this subtitle, an] administrative penalty may not exceed $25,000 per day per occurrence. Each day of noncompliance constitutes a separate violation.

Sec. 415.032. NOTICE OF POSSIBLE ADMINISTRATIVE VIOLATION; RESPONSE. (a) If investigation by the division indicates that an administrative violation has occurred, the division shall notify the person alleged to have committed the violation in writing of:

(1) the charge;

(2) the proposed sanction [penalty];

(3) the right to consent to the charge and the sanction [penalty]; and

(4) the right to request a hearing.

(b) Not later than the 20th day after the date on which notice is received, the charged party shall:

(1) remit the amount of the sanction [penalty] to the division or otherwise consent to the imposed sanction; or

(2) submit to the division a written request for a hearing.

Sec. 415.033. FAILURE TO RESPOND. If, without good cause, a charged party fails to respond as required under Section 415.032, [the penalty is due and] the division shall initiate enforcement proceedings.

Sec. 415.034. HEARING PROCEDURES. [(a)] On the request of the charged party or the commissioner, the State Office of Administrative Hearings shall set a hearing. The hearing shall be conducted in the manner provided for a contested case under Chapter 2001, Government Code (the administrative procedure law).

[(b) At the close of the hearing, the hearing officer conducting the hearing shall make findings of fact and conclusions of law and shall issue a written decision. If the hearing officer determines that an administrative violation has occurred, the hearing officer shall include in the decision the amount of the administrative penalty assessed and shall order payment of the penalty.

[(c) The findings of fact, the decision, and the order shall be sent immediately to the charged party.]

SECTION 46. Subchapter C, Chapter 415, Labor Code, is amended by adding Section 415.036 to read as follows:

Sec. 415.036. STANDARD OF JUDICIAL REVIEW OF COMMISSIONER'S ORDER. An order of the commissioner is subject to judicial review under the substantial evidence rule.

SECTION 47. Section 419.001, Labor Code, is amended by adding Subsection (c) to read as follows:

(c) For purposes of this chapter, a person acts in a "deceptive manner" if the person knows or should know that the person's actions would convey, or could reasonably be interpreted or construed as conveying, the false impression that:

(1) an item is approved, endorsed, sponsored, authorized by, the same as, or associated with the division, the department, this state, or an agency of this state; or

(2) the person has a connection with or authorization from the division, the department, this state, or an agency of this state.

SECTION 48. Section 419.002, Labor Code, is amended to read as follows:

Sec. 419.002. MISUSE OF DIVISION'S NAME OR SYMBOLS PROHIBITED. (a) Except as authorized by law, a person, in connection with any impersonation, advertisement, solicitation, business name, business activity, document, product, or service made or offered by the person regarding workers' compensation coverage or benefits, may not knowingly use or cause to be used in a deceptive manner:

(1) the words "Texas Department of Insurance," "Department of Insurance," "Texas Workers' Compensation," or "division of workers' compensation";

(2) any term using both "Texas" and "Workers' Compensation" or any term using both "Texas" and "Workers' Comp";

(3) the initials "T.D.I."; or

(4) any combination or variation of the words or initials, or any term deceptively similar to the words or initials, described by Subdivisions (1)-(3).

(b) A person subject to Subsection (a) may not knowingly use or cause to be used in a deceptive manner a word, term, or initials described by Subsection (a) alone or in conjunction with:

(1) the state seal or a representation of the state seal;

(2) a picture or map of this state; or

(3) the official logo of the department or the division or a representation of the department's or division's logo.

SECTION 49. The following provisions of the Labor Code are repealed:

(1) Section 413.031(l);

(2) Sections 415.0035(c), (d), and (f);

(3) Section 415.0036(c);

(4) Section 415.004;

(5) Section 415.008(b); and

(6) Section 415.022.

SECTION 50. Sections 1305.355(e), (f), and (g), Insurance Code, as amended by this Act, and Section 1305.356, Insurance Code, as added by this Act, apply to a medical dispute based on a review by an independent review organization under Section 1305.355 that is commenced on or after the effective date of this Act. A dispute based on a review by an independent review organization under Section 1305.355 that is commenced before the effective date of this Act is governed by the law in effect immediately before the effective date of this Act, and that law is continued in effect for that purpose.

SECTION 51. Section 402.073, Labor Code, as amended by this Act, applies only to an administrative hearing that is conducted on or after the effective date of this Act. An administrative hearing conducted before the effective date of this Act is governed by the law in effect when the hearing was conducted, and the former law is continued in effect for that purpose.

SECTION 52. Section 403.001, Labor Code, as amended by this Act, and Section 403.008, Labor Code, as added by this Act, apply only to an administrative penalty assessed for an administrative violation that occurs on or after the effective date of this Act. An administrative penalty assessed for an administrative violation that occurred before the effective date of this Act is governed by the law in effect when the violation occurred, and the former law is continued in effect for that purpose.

SECTION 53. (a) The commissioner of workers' compensation shall adopt the rules regarding certification of designated doctors required by Section 408.1225, Labor Code, as amended by this Act, not later than January 1, 2013.

(b) A designated doctor is not required to obtain certification under Section 408.1225, Labor Code, as amended by this Act, before January 1, 2013.

(c) Sections 408.1225(b), 413.044(b), and 413.0512(c), Labor Code, as amended by this Act, apply only to a disciplinary action taken against a designated doctor on or after January 1, 2013. A disciplinary action taken against a designated doctor before that date is governed by the law as it existed immediately before the effective date of this Act, and the former law is continued in effect for that purpose.

(d) Section 408.0041, Labor Code, as amended by this Act, applies only to a medical examination by a designated doctor that occurs on or after January 1, 2013. A medical examination that occurs before that date is governed by the law in effect when the medical examination occurred, and the former law is continued in effect for that purpose.

SECTION 54. (a) Sections 408.022, 408.085, 408.104, 408.129, 408.1415, 408.143, 408.147, and 408.151, Labor Code, as amended by this Act, apply to an application filed or a request made on or after January 1, 2013. An application filed or a request made before January 1, 2013, is governed by the law in effect when the application was filed or the request was made, and the former law is continued in effect for that purpose.

(b) The commissioner of workers' compensation shall adopt the rules required by Sections 408.022, 408.085, 408.104, 408.129, and 408.1415, Labor Code, as amended by this Act, as soon as practicable after the effective date of this Act.

SECTION 55. The change in law made by this Act in amending Sections 409.021, 415.0035, 415.008, 415.009, 415.010, 415.021, 415.025, 415.032, 415.033, and 415.034, Labor Code, and Sections 2051.151 and 2053.206, Insurance Code, adding Section 415.0211, Labor Code, and repealing Sections 415.0035(c), (d), and (f), 415.0036(c), 415.004, 415.008(b), and 415.022, Labor Code, applies only to an administrative violation that occurs on or after the effective date of this Act. An administrative violation that occurs before the effective date of this Act is governed by the law in effect on the date the violation occurred, and the former law is continued in effect for that purpose.

SECTION 56. Sections 410.023 and 410.028, Labor Code, as amended by this Act, apply only to a benefit review conference requested on or after the effective date of this Act. A benefit review conference requested before the effective date of this Act is governed by the law in effect immediately before the effective date of this Act, and that law is continued in effect for that purpose.

SECTION 57. Sections 413.031(k) and (k-1) and 413.0311(a), Labor Code, as amended by this Act, and Section 413.0312, Labor Code, as added by this Act, apply only to the appeal of a medical fee dispute under those sections that is based on a review conducted by the division of workers' compensation of the Texas Department of Insurance on or after the effective date of this Act. The appeal of a medical fee dispute that is based on a review conducted by the division of workers' compensation before the effective date of this Act is governed by the law in effect on the date the review was conducted, and that law is continued in effect for that purpose.

SECTION 58. Section 414.005, Labor Code, as amended by this Act, applies only to an investigation or review conducted on or after the effective date of this Act. An investigation or review conducted before the effective date of this Act is governed by the law in effect when the investigation or review was conducted, and the former law is continued in effect for that purpose.

SECTION 59. Section 415.036, Labor Code, as added by this Act, applies only to an order of the commissioner of workers' compensation issued on or after the effective date of this Act. An order of the commissioner that was issued before the effective date of this Act is governed by the law in effect when the order was issued, and the former law is continued in effect for that purpose.

SECTION 60. This Act takes effect September 1, 2011.