Texas Register
, and should be read to determine
the final version of the rule.
Note: §129.5 requires doctors to file the Work Status Report. The
Commission has designated the form on which this report is to be filed as
the "TWCC-73." Therefore, in the course of this preamble and the public comments
and responses, the report required by this rule is referred as the "Work Status
Report" and the "TWCC-73." These terms should be understood as being synonymous.
The terms "report" and "form" should be understood to mean the Work Status
Report unless the context clearly indicates otherwise. In addition to comments
on the rule itself, the Commission received and considered public input in
its revision of the Work Status Report form (TWCC-73).
Amendments to Subsection (a)
Subsection (a) is amended to clarify who is required to file the Work Status
Report under this rule. The previous language stated that, in addition to
a treating doctor, "a doctor to whom the treating doctor has referred the
injured employee (employee) for regular treatment" is required to file the
report under this rule. Questions were raised regarding what is meant by "regular
treatment."
The intent of the prior language was to address the situation in which
the treating doctor has referred the employee to another doctor to provide
treatment. Often, this will result in this other doctor becoming the primary
provider of care for the employee for a period of time during the claim. In
these cases, this doctor would be in the best position to address the employee's
current work status.
At the time the previous rule was adopted, the Commission rules did not
contain a definition of a referral doctor. Therefore, the prior language was
an attempt to explain the concept of referral doctor until a definition was
adopted. Section 133.4 of this title (concerning Consulting and Referral Doctors)
has now been adopted and thus it is possible to replace the original language
of the subsection with a reference to the definition of "referral doctor"
in new §133.4 to clarify the concept.
The filing requirements under the rule were changed to tie more directly
into change in restrictions or a change in work status. Therefore, new subsections
(a)(2) and (a)(3) were added which define "substantial change in activity
restrictions" and "change in work status" respectively. Substantial change
in activity restrictions means a change in activity restrictions caused by
a change in the employee's medical condition which either prevents the employee
from working under the previous restrictions or which allows the employee
to work in an expanded and more strenuous capacity than the prior restrictions
permitted (approaching the employee's normal job); Change in work status means
a change from one of the three states listed in what is now subsection (a)(4)
to another.
The language in what is now subsection (a)(4) was changed to simplify the
language and to clarify that being released to return to work without restrictions
is not the same thing as Maximum Medical Improvement (MMI). Commenters indicated
that some doctors were estimating that the employee would not be able to return
to work for 104 weeks which seemed to be a reference to the fact that the
statute usually places the outer limit for MMI 104 from the date benefits
accrued (with a limited exception that can result in a limited extension of
MMI for certain spinal surgery cases).
Under the previous rule, when the doctor believed that the employee could
not return to work in this capacity, the employee's medical condition was
considered to be such that it "restricts the employee from returning to work."
In the amended rule, it now says that the medical condition is such that it
"prevents the employee from returning to work." It is believed that the term
"prevents" rather than "restricts" is clearer.
Amendments to Subsections (b) and (c)
Although originally not proposed to be changed, changes were made to these
subsections based upon comments that were concerned about doctors providing
complete reports. A number of commenters related experiences with doctors
filing reports which did not meet the purpose of the rule. Examples of this
would be cases where doctors would refuse to put an estimated expiration date
on work status, would indicate that the employee could not work at all but
would not indicate why, or would indicate excessively long expirations, even
for minor injuries.
Because the purpose of filing the Work Status Report is to provide needed
information, it is appropriate to ensure that complete reports are filed.
Further, part of the justification for providing reimbursement for the report
is that the report is supposed to contain information that will improve claims
management and return to work. Therefore, it is only appropriate that reimbursement
be linked to "completeness" of the report.
However, if the rule simply stated that the report must be complete, there
could be many different interpretations among carriers and doctors which would
reduce communication rather than enhance it and would make it more difficult
for doctors to file the report. In addition, doctors will be required to use
a standard form for the Work Status Report (which many system participants
seem to support); the requirement to use the standard form will be phased
in to allow doctors time to integrate the new report into their systems. During
the phase-in period, there would be no standard for completeness unless it
is stated in the rule.
With that in mind the Commission expanded and consolidated the language
in previous subsections (b) and (c) to better lay out the requirements of
the report and what it takes to be considered complete. Subsection (b) now
merely requires doctors to file the report in the form and manner prescribed
by the Commission and subsection (c) identifies what information is required
for a report to be complete.
Amendments to Subsection (d)
Although originally not proposed to be changed, public comment on how often
the report should be filed was received which resulted in changes to the subsection.
Based upon that input, the Commission revised subsection (d) to limit the
frequency with which the report would be filed. The adopted version of this
rule no longer requires doctors to file reports as often as once every two
weeks unless the carrier requests it (or the employer requests it through
the carrier). Instead, doctors are required to file the report at the initial
visit, when there is a change in work status, a substantial change in activity
restrictions, or on the schedule requested by the carrier. Doctors are also
still required to file reports in the two situations described in subsection
(f).
The reason for this change was that it was pointed out that for many injuries,
there are relatively standard return to work time frames and continuously
reporting that the employee was unable to return to work during a period when
the employee is not really expected to return to work would be a waste of
paper, time, and money (especially since the report is now reimbursable).
At the same time, more frequent reporting may be appropriate in some cases,
particularly those where the employee's return to work progress is slower
than expected or where the carrier/employer believe that the additional reporting
is worth paying for. Rather than require reports (and payment for reports)
that employers and carriers don't need, the adopted rule allows the carrier
(and the employer through the carrier) to request and receive more frequent
reporting. This will limit the potential cost impact but will still ensure
that employers and carriers can receive reports more frequently if they believe
that this additional reporting is necessary, appropriate, and worth paying
for.
A fuller discussion of the issues can be reviewed in the comments and responses
that follow and are not duplicated here to avoid redundancy.
Amendments to Subsection (e)
Subsection (e) was amended to extend the period of time doctors have to
file the report with employers and carriers. It was noted that, particularly
at the beginning of a claim, the doctor may not be able to obtain carrier
information within one working day of the initial examination as is currently
required. Therefore, the timeframe was extended to provide more time for the
doctor to obtain the necessary information. The requirement that the doctor
provide the employee with a copy of the Work Status Report at the time of
the examination has not been changed in the proposal. Even if the carrier
and/or employer information is not available at the time of the examination,
the completed Work Status Report absent that information can easily be provided
to the employee at that time. The form instructions will state that the employee's
copy given at the end of the examination is not required to contain the carrier
and/or employer information when it is provided.
In developing the amendment, the idea of extending the filing period for
the initial report but leaving the period intact for subsequent reports was
considered and rejected. Although it is true that once the provider has obtained
the carrier information, less time should be needed to file the report, there
was concern that having two different deadlines would be confusing. Further,
at this time, most of these reports will be filed by facsimile rather than
electronic transmission. It may be some time before carriers have had the
opportunity to identify the full effect that increased reporting by facsimile
will have on their available facsimile capacity and to adjust that capacity
as necessary. This also suggests that increasing the period of time for filing
both initial and subsequent reports is appropriate at this time.
Based upon input, the subsection was changed to require the report to be
filed with the employer every time it is required to be filed with the carrier.
Having one standard for who the report is sent to, will simplify filing for
doctors (just as having one due date for filing all Work Status Reports does).
A fuller discussion of the issues can be reviewed in the comments and responses
that follow and are not duplicated here to avoid redundancy.
Amendments to Subsection (f)
Although not originally proposed to be amended, the Commission received
comments on this subsection which indicated minor confusion about its requirements.
Specifically, it seems that it was not clear that the report which was referred
to in subsection (f)(2) was a Work Status Report. Therefore this subsection
was changed to replace the generic term "report" with "Work Status Report."
In addition, language was added to make it clear that the treating doctor
is expected to respond to an RME doctor's Work Status Report that indicates
the employee can return to work, regardless of whether it is with restrictions
or without restrictions.
Amendments to Subsection (h)
When reviewing comments on subsection (f) and (g), the Commission realized
that the rule provided no guidance on filing the report with the employee
if the report is filed based upon a review of functional job descriptions
provided by the employer or a Work Status Report from an required medical
examination (RME) doctor which indicates that the employee can return to work.
In most cases the treating doctor will respond to either of these with a Work
Status Report that is filled out and filed without a new examination of the
employee. This would make it impossible to hand a copy of the report to the
employee after the examination as the report will generally be filed. As such,
subsection (h) was changed to address this situation and at the same time,
changed to make it easier to follow.
Amendments to Subsection (i)
New subsection (i) provides the doctor with reimbursement for filing a
complete report required by this rule. As adopted, doctors will not be entitled
to reimbursement for reports which are not required by the rule unless the
report is a extra copy of a previously filed copy of the report which is being
provided because it was requested by or through the carrier. The subsection
was also amended from what was proposed to clarify that providing an extra
copy of a report in response to a request from an employer, carrier, or their
agent is reimbursable. Employers and carriers should provide copies of their
report to their agents in order to reduce the number of requests for extra
copies that doctors receive. Repeated telephone requests for copies of previously
provided documentation and reports is a common complaint from doctors' offices.
In the December 1999 preamble to the adoption of previous §129.5,
the Commission indicated that the Work Status Report would not be separately
reimbursed. However, as discussed in response to comments, the Commission
has reconsidered reimbursement for completion and filing of the Work Status
Report and believes reimbursement for filing this report is appropriate at
this time.
The successful implementation of this new reporting mechanism will help
ensure that benefits are timely initiated and terminated and help reduce system
costs by increasing communication between carriers, employers, and employees
regarding return to work opportunities. Providing reimbursement for what should
be valuable information will provide an additional incentive for filing the
report as required and, as a result, benefit the system as a whole.
Reimbursement for completion and submission of the Work Status Report is
set at $15, in part, because this is consistent with reimbursement for other
required reports. The Commission has received suggestions that the report
be reimbursed at a significantly higher level than other reports traditionally
have been. Some of the reasons that these suggestions have been made were
due to the mistaken belief that reporting on the employee's work status will
require a more thorough examination, possibly even a functional capacity examination.
Work status reporting is designed to be based upon the doctor's experience
and judgment and does not require the kind of testing that functional capacity
and impairment rating examinations do. Work status reporting is intended to
improve communication and ensure that return to work remains an issue at the
forefront of a workers' compensation claim. More involved examinations are
only expected to be needed on more serious injuries, particularly those that
have resulted in the employee being off work a very long period of time.
The issue of reimbursement (whether there should be reimbursement, under
what circumstances reimbursement might be appropriate, and how much the reimbursement
should be) was the subject of the most comments. A fuller discussion of the
issues can be reviewed in the comments and responses that follow and are not
duplicated here to avoid redundancy.
In addition to providing for reimbursement, language was added to the subsection
to address how doctors are to bill for these reports. The billing instructions
require doctors to identify what type of report was provided and why it was
provided. For years, the Commission has received complaints from health care
providers who indicated that carriers constantly contact them requesting reports
or information in excess of those required by rule or requesting a provider
send another copy of a previously provided report. This is despite the fact
that the Commission has for years told carriers that they are responsible
for providing copies of reports to their staff and agents. By including separate
billing modifiers for different reports, the Commission will be able to monitor
this activity as it relates to the Work Status Report and will also be able
to determine how much of the cost associated with reimbursing the Work Status
Report is within the carriers' control, meaning what percentage of the total
costs are associated with carrier requests rather than the rule's minimal
requirements.
New Subsection (j)
Although not in the original changes proposed to this rule, a new subsection
(j) has been added for clarification purposes based upon public comment. The
issue relates to whether RME doctors are required to file Work Status Reports.
§126.6 (relating to Order for Required Medical Examinations), already
required RME doctors to file Work Status Reports under certain conditions
and referred the doctors to §129.5. Because more doctors are likely to
be familiar with §129.5 than 126.6, new subsection (j) was added to reference
rule 126.6 so that RME doctors would be aware of their responsibilities for
filing Work Status Reports.
Comments that indicated support for the amendments were received from the
following groups: Dr. Albert M. Kincheloe's office; Harris Methodist Fort
Worth Occupational Health Program; Brasseur Chiropractic; Harris Occupational
Health; Dr. James E. Butler's office; Dr. Bruce R. Beavers' office; RSK Co.;
Dr. William Lowe's office; Naman, Howell, Smith & Lee; Dr. Pablo Garza's
office; TDMHMR Lufkin State School; Southwest Medical Examiners; Dr. Robert
Allred's office; Orthopaedic Associates of Corpus Christi; Concentra Health
Services; Scott & White; Orthopaedic Associates of North Texas; Pass &
Seymour/Legrand; Professional Emergency Service Association Corporation; Dr.
Barry L. Zindel's office; Garland ISD; and Texas Orthopedic Administrators
Association.
Comments that indicated general opposition to one or more of the proposed
amendments were received from the following groups: Health Texas; Consolidated
Freightways; Lockheed Martin Aeronautics Company; Flahive, Ogden & Latson;
Hammerman & Gainer, Inc.; Texas Workers' Compensation Insurance Fund;
American Insurance Association; Texas Association of Business & Chambers
of Commerce; and The Zenith.
Comments that indicated both support for some of the amendments and opposition
to other amendments were received from the following group: Insurance Council
of Texas.
The Commission also received comments that indicated support for or opposition
to the amendments from a number of individuals who did not list what groups
or associations they were affiliated with. The majority of these individuals
indicated support for the amendments.
In addition to comments supporting and/or opposing the amendments, many
of these commenters provided suggestions for other changes to the rule and,
in some cases, provided input that was not directly within the scope of the
rule itself.
Comments supposedly related to §129.5 were also received from people
who did not actually comment on the rule or the amendments but did raise issues
that were related to the TWCC-73 form itself: Huguley Occupational Medicine;
Nacogdoches Neurosurgery, P.A.; Pathfinder Consulting; Physical Medicine &
Rehabilitation Associates; Dr. Melburn K. Huebner's office; Center for Orthopaedic
Specialties, P.A.; Argonaut Insurance Southwest; Good Shepherd Medical Center,
Longview; and Brando Chiropractic. The Commission considered this and other
public input in its revision of the Work Status Report form but did not address
the comments here because they are unrelated to the adoption of amendments
to the rule itself.
GENERAL COMMENTS
Comment: Commenter indicated that although doctors in the commenter's office
have resisted the TWCC-73, the office staff was happy to see it: "They hope
to see phone calls reduced because of it."
Response: The Commission agrees. One of the expected benefits of the rule
will be a reduction in calls to doctors' offices by carriers and employers
attempting to obtain work status or disability information.
Comment: An employer commenter, who is also a certified self-insurer, expressed
general agreement with the intent of §129.5: "The goal of returning an
employee to work is often overlooked by Treating Doctors and the use of the
TWCC-73 is an appropriate method to focus that attention" and commended the
Commission on its efforts to assist the employees and employers in facilitating
a safe and early return to work but indicated that there were several areas
of the rule that could be improved. An insurance carrier commenter agreed
and expressed the belief that if health care providers complete and submit
the form on a timely basis, it could have a positive effect on employees and
system costs by encouraging additional opportunities for modified duty or
potentially more timely notification of the ability to return to work.
An insurance association commenter complimented the Commission and its
staff "for their hard work in developing and implementing the return to work
program. The return to work program that TWCC has implemented will result
in further reduction of costs associated with income benefits." The commenter
also opined that "the return to work program is essential in meeting the mandates
of the Texas Legislature to reduce the costs associated with the Texas Workers'
Compensation system and providing for a program that encourages and assists
injured employees with returning to work." A commenter from the health care
provider community expressed the belief that the Commission had done a good
job with the proposed changes. An employer commenter who is also governmental
entity indicated that "this is an important rule so we can get our employees
back on light duty and then back to work as soon as possible."
Response: The Commission agrees. Timely return to work is an important
part of the system and is one of the goals of the Workers' Compensation Act.
Improvements to return to work help reduce system costs and help limit the
impact that an injury or illness has on an employee's long term earning capacity.
OVERVIEW COMMENTS RELATING TO REIMBURSEMENT OF THE REPORT
The Commission received numerous comments relating to the proposal to allow
reimbursement for the Work Status Report. The vast majority of commenters
indicated support for the proposal. One commenter suggested that if the form
does not become reimbursable, then he would have to raise the level of office
visits to cover the cost of completing the form (which as discussed below
is inappropriate).
Many of the commenters indicated that they believed that $15.00 was appropriate
reimbursement although a number of them suggested that the proposed reimbursement
level was too low. In addition, a number of commenters indicated that the
report should not be reimbursed at all and several commenters provided alternate
reimbursement suggestions.
As noted, based upon these comments and other comments relating to the
frequency with which the report must be filed, the Commission has made changes
to the rule designed to minimize the potential cost impact of reimbursing
for filing the report; to reduce the number of reports that the rule will
require to be filed on all claims to those which are minimally necessary to
support return to work and timely initiation, termination, and reinitiation
of TIBs, but to require additional reports to be filed if requested; and provide
for reimbursement to doctors who are required to file the Work Status Report.
The full explanation of this reasoning can be found in response to comments
that follow.
COMMENTS OPPOSING REIMBURSEMENT
Although the vast majority of commenters favored some form of reimbursement
for the report, there were a number of commenters who opposed reimbursement
(more than 3 to 1 were in favor of reimbursement). There were a number of
reasons given for why the commenters opposed separate reimbursement for the
form. The following comments oppose reimbursement as proposed.
Comment: Commenters opined that the preamble did not state reasons for
the proposed reimbursement and were concerned that this represented a reversal
from the Commission's position in the original adoption of the rule.
Response: The Commission agrees in part. The addition of reimbursement
for filing the Work Status Report represents a change from the Commission's
original position as contained in the preamble for adoption of the previous
§129.5, which was published in the Texas Register on December 17, 1999.
By proposing the amendments to §129.5, the Commission invited those in
the system to provide input as to why the Commission should or should not
allow for reimbursement for the Work Status Report. Reviewing this input has
helped the Commission consider additional points and resulted in a change
in policy.
Comment: Several commenters stated that the cost of filing the report was
already covered in the office visit reimbursements by the Medical Fee Guideline
and quoted a comment and response from the adoption preamble to previous §129.5
as an indication that the Commission agreed. The following was the comment
and response quoted:
"[Comment from the preamble for Adoption of Chapter 129, which was published
in the Texas Register on December 17, 1999]: [Commenters] noted that the
rule does not discuss reimbursement for filing the Work Status Report. [Commenter]
thought that billing for the report on a HCFA-1500 would be grossly inefficient
and suggested that $5.00 be added to the reimbursement for an office visit.
Another [commenter] suggested that §129.5 be changed to reference a
$15 per report reimbursement because 'the development, data entry and submission
of these reports involve the same type of costs associated with completing
other TWCC reports . . . which is consistent with the reimbursements for
the TWCC-69 and the TWCC-61 and 64 which this new form is proposed to take
the place of.'
[Response from the preamble for Adoption of Chapter 129, which was published
in the Texas Register on December 17, 1999]: The Commission currently has
a rule development team reviewing its Medical Fee Guideline and expects to
recommend amendments to that guideline. These comments have been forwarded
to that group for their review. The evaluation of the appropriate level of
reimbursement for these reports, as with evaluation of the appropriate level
of reimbursement for the office visits themselves will be performed by this
group.
However, it may be several months before a new fee guideline is adopted
by the Commission and so staff reviewed the current reimbursement system
in place and the premises on which it was based.
According to the preamble to the current Medical Fee Guideline, the reimbursement
levels for evaluation/management codes (office visits) were calculated with
consideration given to the fact that the workers' compensation system places
an additional administrative burden on doctors. Specifically, the Commission
noted in that preamble that these reimbursement levels were recalculated
using the conversion factor for a higher percentile in order to address the
additional administrative burden and the concern that if reimbursement levels
did not account for the additional burden, primary care doctors would leave
the system.
The type of report that this rule requires the doctor to file is an example
of the type of additional administrative burden that the workers' compensation
system places on doctors. However, it should be noted that even in nonworkers'
compensation claims many doctors provide patients with modified duty slips.
In addition, this report should be relatively easy to complete and the information
required in the report is the type of information which doctors should already
be collecting on a regular basis during office visits. Therefore, during
this intermediate period between the effective date of this rule and the
expected adoption of a new fee guideline, additional reimbursement for this
report does not appear to be warranted. Although the current medical fee
guideline was not developed with the Work Status Report in mind, it was developed
with the expectation that providing care in the workers' compensation system
carries additional administrative requirements of which this type of report
is one.
Further, considering that one of the legislative goals of the workers'
compensation statute is the quick and safe return to work of employees injured
on the job and the fact that the system places primary responsibility for
accomplishing that goal on the treating doctor, this type of reporting should
have been happening in the system all along. Indeed, it appears that in many
cases it has been occurring in a variety of ways. As indicated by another
[commenter], many doctors created their own forms to report the information
on a regular basis and those that did not, often ended up reporting it anyway
by telephone when the carriers called for work status information.
Therefore, pending the amendment of Medical Fee Guideline, in which this
issue may be revisited, filing of the Work Status Report will not be separately
reimbursed. A new Medical Fee Guideline may or may not change this."
Commenters suggested the Commission should evaluate the reimbursement levels
for office visits to determine whether they do or don't include the cost of
completing and filing reports such as the Work Status Report and if they do
not, then to correct that in the Commission's Medical Fee Guideline. The commenters
opined that since the report is filled out at the time of the examination
and is provided to the employee at that time as well, the cost of completing
the report should be included in the cost of the examination: "The report,
which is completed after an injured employee is examined and seen by a doctor,
is part of the doctor's duties to document the condition, progress, and work
status of the injured employee. Doctors must bill for the examination of the
injured employee utilizing the proper evaluation/management code set out in
TWCC's
1996 Medical Fee Guideline
. Insurers
believe that doctors are already adequately reimbursed for office visits and
tasks associated with office visits." Another commenter expressed concern
that separate reimbursement would amount to "[promulgating] fee 'unbundling'
by rule."
Response: The Commission agrees in part and has followed the commenters'
suggestion that current reimbursements for office visits be reevaluated to
see if they include consideration for the cost of filing reports such as the
Work Status Report. As a result of this review, which was based on input from
other commenters and review of the rules in existence prior to and after the
adoption of the 1991 and 1996 Medical Fee Guidelines, it does not appear that
reimbursement levels for office visits that are contained in the current fee
guideline include the cost of filing reports such as the Work Status Report.
Section 133.106 (relating to Fair and Reasonable Fees for Required Reports
and Records) provides that required reports such as the Initial Medical Report
(TWCC-61) and the Specific and Subsequent Medical Reports (TWCC-64) were reimbursable
at a rate of $15 per report. This rule was effective January 24, 1991. Later
the Commission passed its first Medical Fee Guideline which was effective
August 1, 1991. This fee guideline did not repeal §133.106 and indicated
that system participants were to "see rules" for reimbursement issues associated
with reports. It does not seem that this was an oversight because the Commission
adopted amendments to the guideline effective December 11, 1991 which did
not make any change to the report reimbursement.
While the adoption preamble to the 1996 Medical Fee Guideline did indicate
that the evaluation and management reimbursement levels were raised from what
were proposed in consideration of the fact that the workers' compensation
system places an additional administrative burden on doctors, it appears that
this additional administrative burden did not include filing required reports
such as the TWCC-61 and the TWCC-64 because they were still reimbursed separately.
An example of the type of burden that is included in these reimbursements
is that treating doctors are required to review all other doctors' certifications
of maximum medical improvement and impairment ratings. If the administrative
burden the preamble referred to included reports such as the TWCC-61 and the
TWCC-64, then the adopted version of the fee guideline would have also included
language which exempted these reports from §133.106. To the contrary,
the fee guideline still referenced reimbursements for filing reports and provided
billing instructions for seeking such reimbursement. Therefore, it appears
that the administrative burden to which the 1996 preamble was referring related
to other burdens such as the duty of the treating doctor to coordinate medical
care among multiple providers and ad hoc reports rather than required reports
such as the TWCC-61 and TWCC-64.
It should also be noted that the 1996 Medical Fee Guideline predates the
concept of a formal Work Status Report by several years. This report represents
a new reporting requirement which provides valuable information to employees,
employers, and insurance carriers. Though designed to be as simple as possible
to fill out, the TWCC-73 form, which is to be used by doctors filing Work
Status Reports, still takes some work to fill out and file because it focuses
on different information than prior required reports and because it will be
filed more quickly.
Regarding the suggestion that the Commission should "correct" the Medical
Fee Guideline if the current reimbursement levels don't include the Work Status
Report, that would require a separate amendment of the guideline. Although
it would be possible to do so, the Commission has, for now, opted to reimburse
doctors for filing the Work Status Report through §129.5.
The Commission disagrees that providing for a separate reimbursement for
the Work Status Report amounts to unbundling because, as noted, the Commission
has historically allowed doctors to be reimbursed for some reports separate
from the office visit and because the Commission does not currently believe
that filing reports such as the Work Status Report is part of the office visit.
The fact that the report is filled out at the time of the examination does
not necessarily make it part of the examination for reimbursement purposes.
If doctors were to bill higher office visit levels to try to recoup the time
and expense for filling out and filing the Work Status Report, it would be
a form of upcoding, which is impermissible and which would have a far more
serious impact on medical costs than the $15 that this report will be reimbursed,
because the difference in reimbursement between the different level office
visits is often more than $15.
Further, although the Commission anticipated that filling out the Work
Status Report would be relatively simple, it appears there are other issues
associated with filing these reports which were not fully accounted for in
the previous version of the rule. The response to the following comment goes
into more detail on this point.
Comment: Commenter suggested that if the Commission insisted on providing
a reimbursement fee that "it should be no more than a one time charge for
the initial set up." The commenter's greatest concern was that reimbursement
for the report "will create a lot of opportunity for abuse by those physicians
that are already abusing the system. It will be seen as a billing opportunity
and will be issued on a biweekly basis for as long as treatment can be extended."
The commenter suggested that the "overwhelming majority of physicians are
well intentioned and would not abuse it. However, the rule must protect against
the problematic few, not the majority."
Response: The Commission agrees that it needs to protect the system from
unnecessary increases to medical costs but does not support the suggestion
that only the initial report be reimbursed. Other commenters have correctly
pointed out that the way this form is filled out and filed represents a major
change from the way forms have been filled out and filed in the past. The
form contains blanks for follow-up appointment information which is information
some employers and carriers have indicated they are interested in. This information
is not generally available during the examination when the doctor is going
over the report with the employee, because follow-up appointments have not
yet been set. This means that after partially filling out the form (i.e. putting
information on work status and, if appropriate, activity restrictions), the
form will be sent back to the "front office" to fill out the additional information
(i.e. follow-up information).
Another major change is that the report must be completed by the end of
the examination to be provided to the employee. This means that doctors will
not be able to use transcription services to fill out the reports. Further,
because this report is required to be filed with the carrier much faster than
other required medical reports have traditionally been required to be filed
(and since it is filed with another party: the employer), doctors have far
less room for error or delay in filing the report than in the past.
The means of filing the report is different than the method in which other
required reports have traditionally been filed. In most cases, the Works Status
Report is required to be filed by facsimile or electronic transmission. At
the moment, this will generally mean that most doctors will be filing the
report by facsimile because most doctors, employers, and carriers have not
yet set themselves up to send and receive required reports such as the Work
Status Report electronically. Filing by facsimile will, at times, involve
long distance charges. In addition, regardless of whether the reports are
filed by facsimile or electronic transmission, the doctor needs to obtain
either the facsimile number or email address of the employer and carrier.
Doctors report that they have been experiencing problems doing this.
The differences between the Work Status Report and other reports and the
costs associated with those differences continue past the initial filing of
the report. Therefore, it is not appropriate at this time to limit reimbursement
to the initial filing.
Regarding the commenter's concern about abuse, the Commission is concerned
about abuse by any parties in the system. However, in developing this rule,
the Commission assumes that the vast majority of system participants operate
in good faith in the system and that the few abusers should be dealt with
through other processes. Because the Commission believes that the filing of
this report deserves reimbursement, to deny that reimbursement to the many,
to prevent abuse by the few is not warranted.
As noted, however, the Commission is concerned about the potential impact
reimbursing this report would have on the system and, as discussed in response
to other comments, has adjusted the frequency of filing the report to limit
reimbursement of the report to those reports which are minimally necessary
to enhance return to work and timely initiation, termination, and reinitiation
of TIBs. Filings beyond this minimal level are required and will be reimbursed
if the filings are at the request of the carrier or the employer (who makes
the request through the carrier). These changes will reduce costs associated
with these reports while allowing carriers and employers who believe additional
reporting is necessary and appropriate on an individual claim to ask for and
receive the additional reports (though they have to pay for the requested
reports). The reimbursement for requested reporting beyond the minimums required
by the subsections (d)(1), (d)(2), and (f) of the rule will impact medical
costs. However, this impact will be in the control of the carrier and employer.
Therefore the reimbursement should serve as an incentive to limit additional
reporting to the cases where it is truly appropriate.
Comment: Commenter stated "the form is designed, according to the Commission,
to be simpler and easier to fill out [than] existing [forms] required from
providers. Why then is the fee set the same as the other referenced forms?
It would seem the Commission is at odds with itself with respect to the charge
as a part of the regular office visit."
Response: Though designed to be as simple as possible to fill out, the
TWCC-73 form, which is to be used by doctors filing Work Status Reports, still
takes some work to fill out. In addition, unlike other forms, The Work Status
Report is required to be filed with the carrier, the employer, and employee
and, in most cases, is required to be filed by facsimile or electronic transmission.
As indicated in a prior response, the Commission is not at odds with itself
as to whether the cost of filing a Work Status Report is included in the reimbursement
levels for office visits but rather, has reconsidered and changed its position
based upon current input received.
Comment: In support of the idea that filing the report should be included
as part of the office visit one commenter offered the following: "During a
routine workers' compensation office visit, health care providers will: assess
an injured employee's ability to work through the examination and history
of the injured worker; document the results by completing the 'return to work'
form; and, consult with the injured employee and provide the injured employee
with a copy of the completed 'return to work' form. These 'office visit' activities
are consistent with the American Medical Association's (AMA) evaluation and
management description for office visits.
The AMA's description states, in part: '. . .an office visit encompasses
a history, examination, medical decision making, counseling, coordination
of care, nature of presenting problem, and time. . . The office visit includes
both face to face time (history, exam, and counseling) and non face to face
time (reviewing records, tests, arranging for further services, and communicating
further with other professionals and the patient through written reports and
telephone contact).'"
Another commenter added: "The Doctors should have always gone through this
thought process when they comment regarding work status on the current medical
report forms, and the common "off work" slips. Therefore, this is not extra
work, it is merely a different means/form to document what was already being
done. As such, the doctor time/expense has already been factored into the
fee guideline for reimbursement for the office visit."
Response: The Commission disagrees. Although some of the activities necessary
to be able to complete a Work Status Report are included in an office visit,
completion and filing of the Work Status Report is a workers' compensation
requirement. Further, the Work Status Report requires a more detailed explanation
of the work restrictions or justification for keeping the employee off work
entirely than most doctors have provided in the past. The fact that the report
is filed with three parties and is required to be filed by facsimile or electronic
transmission, represents a burden to doctors not previously considered in
setting office visit reimbursements.
Comment: Several commenters asked that the Commission consider the potential
impact that reimbursement for the form would have on medical costs. Included
were estimates that the proposed reimbursement of $15.00 per report filed
in accordance with the rule would have a net increase of ten million dollars
(this was a net calculation because of the savings offered by the elimination
of the TWCC-61 and TWCC-64 forms that previously were passed by the Commission):
"TWCC staff cited a figure of [seven] million dollars in FY 98 for reimbursement
of the TWCC 61 & 64. The TWCC 61 & 64 reports are each filed once
at a system cost of [$30.00]. If the proposed reimbursement is approved, the
maximum number of reports filed (5) could raise single case totals to [$75.00]
and a system total of more than [17] million dollars." "While insurance companies
would no longer pay for the Initial, Subsequent, and Specific Medical Reports,
there would still be a system cost increase of approximately [ten] million
dollars for the proposed change to §129.5. The Texas workers compensation
system cannot afford any additional increase in medical costs."
One commenter pointed out that "treating doctors are the only health care
provider who, by rule, can prepare and be reimbursed for the Initial, Subsequent,
and Specific Medical Reports. §129.5 allows both the treating doctor
and all referral doctors to prepare and submit the report and be reimbursed."
Further the commenter stated that the "cost of medical benefits in the Texas
workers compensation system has risen 83% since 1993. Data from the National
Council on Compensation Insurance (NCCI) indicates that the average expected
medical costs per claim in Texas exceeds the national average by almost 80%.
After reviewing data received from the TWCC, the NCCI, and two large insurance
carriers, the Research & Oversight Council on Workers Compensation (ROC)
concluded that the medical costs for both indemnity and medical claims in
Texas are higher than the average median costs for other states.
The increasing costs of medical treatment in the Texas workers compensation
system is of such concern that the Texas Legislature passed House Bill 3697
which, in part, directed the ROC to conduct a study to identify the reasons
for the drastic increase of medical costs. The [commenter] believes that TWCC
should be looking for ways to decrease system medical costs. The inclusion
of provisions for reimbursement of the form TWCC-73, Work Status Report, in
§129.5 will not cut medical costs in the workers' compensation system
but rather have the opposite effect of driving costs up."
Response: As noted, the Commission is concerned about the potential impact
that reimbursing this report would have on the system and, as discussed in
response to other comments, has adjusted the frequency of filing the report
to limit reimbursement of the report to those reports which are minimally
necessary to enhance return to work and timely initiation, termination, and
reinitiation of TIBs, and those requested by or through the carrier.
Under this approach, reports will generally be limited to an initial one
at the beginning of treatment and then an additional report when there is
a change in work status or if the employee's activity restrictions substantially
change (except for the reports required under subsection (f) in response to
the employer's functional job descriptions or an RME doctor's Work Status
Report that indicates the employee can return to work). This will result in
reporting (and thus reimbursement) requirements that are very similar to some
of the TWCC-61 and TWCC-64 filing duties. In fact, the reporting requirements
should be slightly less since doctors will not be required to file a report
once every 60 days as they were with the TWCC-64. As such, the costs associated
with reimbursing the minimally required reports should be offset by the savings
experienced by eliminating the TWCC-61 and TWCC-64.
However, the Commission also recognizes there are employers and carriers
who may wish to receive work status information on a more regular basis. Rather
than require doctors to file extra reports on all claims (which would be too
often on many claims), the Commission believes that carriers and employers
should evaluate their claims and determine whether additional information
is worth paying additional reimbursement for. If so, the carrier will be able
to request additional reports from the doctor who will be required to provide
the report as requested (the employer can request additional reports through
their carrier) and the carrier will be required to reimburse the doctor for
the requested reports.
Filings beyond the minimal level will only be reimbursed if the filings
are at the request of the carrier or the employer (who makes the request through
the carrier). These changes will greatly reduce the costs associated with
the reimbursement of the Work Status Report as proposed while allowing carriers
and employers who believe additional reporting is appropriate on an individual
claim to ask for and receive the additional reports. Though the requested
reports will represent a cost to the system, this will be a cost which carriers
and employers can choose to avoid or minimize by ensuring that they only ask
for additional reports when they are truly needed. Carriers and employers
may wish to do this by focusing their additional attentions on those claims
which appear to be in danger of exceeding standard return to work expectations.
Comment: Commenter disagreed with language in the preamble for the proposed
amendment of §129.5 which stated that "[p]roviding reimbursement for
what should be valuable information will provide an additional incentive for
filing the report ..." and argued that the "failure on the part of a doctor
to file the report constitutes a violation of Rule 129.5. A doctor who fails
to comply with a TWCC rule commits an administrative violation and may face
financial penalties. The possibility of a penalty based upon the failure to
comply with Rule 129.5 is the actual incentive for filing the report by a
doctor."
Response: Although the Commission agrees that enforcement action such as
issuance of penalties can help improve compliance and thus avoiding penalties
can serve as an incentive to remain in compliance, it is more efficient to
utilize market forces to provide incentives for remaining in compliance than
it is to issue penalties. Voluntary compliance is the preferred outcome because
it allows the Commission to focus its compliance efforts on serious violations
and abusers. Further, because the Work Status Report will help meet one of
the statutory intents (speedy return to work), it should be reimbursed and
such reimbursement will improve acceptance of the new reporting requirement
thus improving compliance.
Comment: A number of commenters that generally opposed reimbursement for
the report did indicate that they supported reimbursement under limited circumstances.
Specifically, the commenters noted that filing the work status report in response
to an required medical examination (RME) doctor's release to return to work
and filing the report in response to receiving functional job descriptions
from an employer hoping to make an offer of employment at modified duty (as
required by subsection (f) of the rule), go beyond the treating doctor's traditional
duties and warrant reimbursement. It was also suggested that doctors should
be reimbursed when providing a report in response to a special request.
Response: As indicated in response to other comments, the Commission believes
that any report filed as required by this rule, including those required in
response to a request by the employer or carrier should be reimbursed. Therefore,
the Commission disagrees with the suggestion that doctors should only be reimbursed
when providing a copy of the report in response to the employer's functional
job descriptions, in response to an RME doctor's Work Status Report that indicates
that the employee can return to work, or for special requests.
Comment: In response to opposition to reimbursement for the report expressed
at the public hearing, a commenter offered a compromise proposal that would
allow for reimbursement of the form but limit the increase in costs by allowing
the initial report to be reimbursed and any subsequent report which reports
a change in work status. Under this compromise, subsequent reports that simply
report that the employee's work status had not changed would not be reimbursed
since the report would be easier to fill out.
Response: The Commission agrees in part. However, as discussed in response
to other comments, rather than require doctors to file reports which are not
reimbursed, the Commission has revised the rule to reduce the frequency in
which the report is required to be filed (and thus reimbursed). Further, at
this time, the Commission believes that there will be costs associated with
filing this report which doctors should be reimbursed for even when the employee's
work status and activities restrictions have not changed.
COMMENTS SUPPORTING REIMBURSEMENT
The following summarizes the comments received supporting reimbursement
including those comments suggesting that the reimbursement level should be
higher than $15.00 (recommending anywhere between $20.00 and $200.00). Some
of those that indicated that the reimbursement level should be higher than
$15.00 and those who indicated support for the $15.00 reimbursement did not
provide any reason for their position; the others mostly cited one or more
of the following as their reasons for their positions:
A) Some commenters felt that there is more time and trouble in filling
out the Work Status Report than other medical reports because it is more complicated.
B) Some commenters felt that the process for filing the form is more complicated
because the form has space on it for follow-up appointment information which
means that the report requires moving back into the "front office" for scheduling
before being filed and because the report has to be faxed or transmitted electronically
(which may involve long distance charges). This then "requires not only the
doctor's time but also involves at least one other employee to stop whatever
it is they are doing to fax a copy of this at the time of the visit which
means we must have additional personnel hired to handle the form."
C) The time frames and frequency for filing the report are much tighter
than other reports such as the TWCC-69.
D) The Commission needs to remain consistent with reimbursement for other
medical reports.
E) The current reimbursement level for medical reports ($15.00) was set
in 1991 and the current levels of reimbursement for office visits were set
in 1996 and are no longer adequate. Further, the reimbursement levels for
office visits, though increased from what was proposed still were well below
the level that the majority of doctors charged for office visits in all payor
systems.
F) There may be significant programing costs with implementing the Work
Status Report.
One commenter noted that although medical costs in Texas workers' compensation
are higher than the medical costs in other states' systems, the commenter
pointed to utilization, particularly abusive utilization, as the reason for
the high costs, not the individual reimbursement levels. The commenter indicated
that although a fee schedule is an appropriate means to limit costs, the fees
should not be at so low a level as to cause providers to leave the system
and suggested that without reimbursement for the report, doctors whose business
does not focus primarily on occupational medicine, particularly rural doctors,
might choose to leave the system, thus reducing employee options for seeking
medical care. The commenter also pointed out that the Texas workers' compensation
system has been operating under the current reimbursement levels for four
years yet health care providers' costs (such as human resource benefit costs)
have risen as they have for all employers.
Response: The Commission agrees that doctors should receive reimbursement
for filing the Work Status Report at this time. However, the Commission disagrees
with suggestions that the reports should be reimbursed at a level beyond the
$15.00 that was proposed.
The Commission disagrees that the report is significantly more complicated
to fill out than prior reports but, nevertheless has been working to improve
its ease of use. The Commission published a draft of an improved form on the
Internet and asked for suggestions on how to improve it. A number of employers,
carriers, and health care providers has assisted the Commission in reviewing
those suggestions and making even more improvements to the form. The final
version of the form has been significantly changed from the first draft that
was issued back in December of 1999. Among the more important changes designed
to improve ease of use are: removing redundant choices and less common restrictions;
reorganizing the information so the form is easier to fill out and more closely
follows the process that doctors generally follow in filling out reports;
and simplifying of the language on the report.
While it is true that providing follow-up appointment information and transmitting
the report by facsimile or electronic transmission represents a change from
many doctors' current business practices, it is anticipated that these changes
will improve the system. Further, regardless of whether transmitting a report
by facsimile, electronic transmission, or postal mail, someone has to determine
where to send the report and then send it. Regarding the follow-up services
information the doctor's staff can fill out this portion of the report when
the employee makes their next appointment as he or she is leaving. The staff
can then make a copy for the employee and set the original aside to be transmitted
to the employer and the carrier.
Although the timeframe for filing these reports with the carrier and the
employer is much tighter than the seven day timeframe for filing a TWCC-69
form, the TWCC-69 is a more complicated report to complete (assuming the doctor
has found the employee to be at maximum medical improvement (MMI)) because
the doctor must attach a multi-page narrative that describes the examination
and how the impairment rating was determined. Therefore, it is appropriate
that the TWCC-69 be given more time to be filed.
The Commission agrees that reimbursement for required reports should be
consistent which is why the Commission does not believe that it would be appropriate
to increase reimbursement for this report from the level that was proposed
at this time. Any change in the amount of reimbursement for required reports
would need to be based upon a broader analysis of costs and reimbursements
in the system and the Commission has not yet performed such an analysis. The
issue of whether or not office visits are reimbursed at too low a level is
separate from the issue of reimbursement for the report itself.
Although many system participants will choose to incorporate the Work Status
Report into their automation systems, this is a choice and these will be fixed
start-up costs. As businesses, doctors will choose automation if they believe
that automation can increase efficiency and thus reduce costs. It is also
worth noting that even though the reimbursement levels for reports were originally
set at $15.00 in 1991 and have not been adjusted since that time, many doctors
chose to automate their systems to produce those reports automatically. However,
now such automation should be much easier given the improvements in computers
and software that have occurred in the past ten years and their increased
presence in doctors' offices.
The intent of reimbursing the doctor for filing the Work Status Report
was not to create a new source of revenue for doctors. The intent is to compensate
the doctors for the cost of providing the report. The Commission believes
that the Work Status Report represents a separate cost to doctors that should
be separately compensated at this time. However, the intent is to reimburse
costs of the filing, not restructure the reimbursements for office visits.
Although the Commission agrees that reimbursements should not be set at
levels that would jeopardize access to medical care, at the same time the
Commission does not believe that filing reports should be a significant source
of revenue for doctors. As indicated in the preamble to the original adoption
of this rule, the Commission is in the process of evaluating medical fees
in the system by developing a new medical fee guideline. At this time, the
Commission is not prepared to increase the cost of reimbursing a report beyond
that which the system has historically paid because such changes, if evaluation
shows they are warranted, should be done in conjunction with the other changes
so that the Commission and system participants will be able to anticipate
the total impact of all the changes together rather than having to evaluate
them piecemeal.
Comment: Commenter expressed disagreement with the way doctors are expected
to evaluate the employee's current work status and suggested that a much higher
reimbursement was appropriate because he felt the doctors should do extensive
evaluations on work status. Specifically, the commenter disagreed with idea
that the report should be filed in the absence of something akin to a functional
capacity examination as is anticipated by the rule noting that: "The Work
Status Report addresses key issues that deal with specific information such
as time and weights. How long can an employee stand, sit, bend etc. and how
much weight can that employee lift and for how long. Unless the form is completed
based on appropriate testing the employer will have to be prepared for liability
associated with reinjury."
The commenter argued that filling out the report without some kind of examination
is nothing more than "guessing" and that such guessing will "be substandard
care for the employee and increased risk in the [return to work] process.
Just guessing without supportive testing and physician examination increases
risk for all parties involved and results in poorer care for the employee.
The additional time and testing will require appropriate charges in the range
of $100- $200."
The commenter argued that the report requires more than just the doctor's
experience and judgment: "Appropriate testing is necessary to accurately determine
RTW status. Management of the employee's RTW status should not be delegated
to a guess. Basing the employee's work status on a guess from the physician
is not wise and may ultimately result in more work reinjuries and increased
workers compensation costs."
The commenter also expressed disagreement with the statement that the rule
should save costs by reducing disputes and simplifying their resolution: "You
can not get better information from a guess . . . insurance companies are
already sending the employee for an Independent Medical Evaluation, IME. They,
IME doctors, are already sending the employees back to work unrestricted.
This will result in more disputes from the treating physician, especially
if the IME doctor bases their decision on a guess."
Response: The Commission disagrees. The type of testing that the commenter
described is more akin to a functional capacity examination (FCE). As noted
in the December 1999 adoption preamble to §129.5, doing FCEs on a regular
basis is not appropriate. The Commission's Medical Fee Guideline allows a
maximum of three FCEs per employee. The FCE is more useful for the more severe
injuries, particularly those which result in significant permanent restrictions
and in cases where there may be a disagreement of the employee's work status.
However, if doctors were to do an FCE on every claim, the per claim medical
costs would increase dramatically since each FCE may be reimbursed several
hundred dollars.
Restrictions on an employee's ability to work are dynamic by their very
nature. Over time, these restrictions will change as the employee becomes
more able to work. However, it is also possible that a doctor will overestimate
the employee's ability to work. In those cases, the employee should contact
the doctor and ask the doctor to revise the restrictions. The reason the rule
requires the doctor to provide the employee with a copy of the report at the
time of the examination is to ensure the employee has the opportunity to discuss
a return to work release with the doctor. This can help the employee understand
what he or she is able to do and should help ensure that any restrictions
are accurate and understood. Communication between the doctor and the employee
should ensure an accurate assessment of the employee's ability to return to
work and applicable restrictions on activities.
Rule 129.6 (relating to Bona Fide Offers of Employment) reminds system
participants that they can request a benefit review conference on an offer
of employment if they have any concerns about it. However, offers of employment
based upon restrictions assigned by an experienced doctor are expected to
be appropriate so that disputes will be avoided. The key is having clear communication
about the doctor's opinion regarding the employee's ability to return to work.
In the past, light duty releases were often given with little if any detail
about what "light duty" meant. This would lead to disputes about what the
doctor meant and whether the job was really within the employee's ability
to work. As a tool, the Work Status Report will help improve the quality of
information provided by the doctor regarding work status and work restrictions
which will improve the ability of the employer to accurately identify modified
duty opportunities which meet the employee's restrictions.
OTHER COMMENTS RELATING TO REPORT BILLING AND REIMBURSEMENT
Comment: Commenter asked that subsection (i) be clarified to indicate that
the doctor will be reimbursed if the carrier requests reports in excess of
those required by the rule. Another commenter suggested that the rule should
explicitly state that third and fourth party agents, including rehabilitation
nurses should have to obtain information from either the employer or the carrier
because physician offices are continuing to receive phone calls from these
people who are requesting information that has already been faxed to two other
sources. The commenter also asked that the Commission not require doctors
to submit an additional copy the report with the medical bill as this would
be yet another filing of the report and would be duplicative to the one the
carrier was previously sent by fax or email.
Response: The Commission agrees that doctors should not be and are not
required to file a separate, additional copy of the report with the medical
bill to be reimbursed for the bill. The Commission also agrees that carriers
should be responsible for providing their staff and their agents with copies
of reports and documentation they need. However, there are circumstances under
which it might be reasonable to ask for an additional copy of a report. Rather
than forbid carriers or their agents from requesting additional copies of
reports, the Commission believes that it is more appropriate to provide reimbursement
for the additional reports since the $15.00 reimbursement should outweigh
the cost the carrier would otherwise experience if it had to copy the report
itself. This will hopefully limit the circumstances under which doctors will
receive these requests to those in which an extra copy is truly necessary.
The Commission also agrees that subsection (i) should be clarified to ensure
that system participants understand that if a doctor provides additional copies
of a Work Status Report at the request of the carrier, employer, or their
agents, the doctor is entitled to reimbursement.
However, in reviewing the commenters' concerns, the Commission noticed
that the rule does not address how doctors are to bill for this report. In
addition, given all of the concerns raised about costs and having to provide
additional copies of reports upon request of the employer, carrier, or their
agents (e.g. case management nurses), the Commission believes this is an area
that needs to be monitored. Therefore the rule has been amended to provide
instructions on what code and modifiers doctors are to use when billing.
Three different billing instructions were included to allow the Commission
to evaluate the impact on medical costs that reimbursing the Work Status Report
has had and to allow the Commission to differentiate between the costs associated
with the reports minimally required by the rule, the cost of the additional
reports required because of a request by the carrier or the employer making
the request through the carrier, and the cost of the extra copies of previously
provided reports. This differentiation is important for two reasons. The first
is that the costs that are tied to requests by the employer or carrier are
within the control of the employer and carrier which means they should be
evaluated separately. Second, doctors have long complained about carriers
requesting additional copies of previously provided reports and documentation.
Being able to identify these requests by their billing will allow the Commission
to evaluate how often these requests happen and possibly develop solutions
for any continuing problem. Subsection (i) has been changed as follows:
(i) Notwithstanding any other provision of this title, a doctor may bill
for, and a carrier shall reimburse, filing a complete Work Status Report
required under this section or for providing a subsequent copy of a Work
Status Report which was previously filed because the carrier, its agent,
or the employer through its carrier, asks for an extra copy. The amount of
reimbursement shall be $15. A doctor shall not bill in excess of $15 and shall
not bill or be entitled to reimbursement for a Work Status Report which is
not reimbursable under this section. Doctors are not required to submit a
copy of the report being billed for with the bill if the report was previously
provided. Doctors billing for Work Status Reports as permitted by this section
shall do so as follows:
(1) CPT code "99080" with modifier "73" shall be used when the doctor is
billing for a report required under subsections (d)(1), (d)(2), and (f) of
this section;
(2) CPT code "99080" with modifiers "73" and "RR" (for "requested report")
shall be used when the doctor is billing for an additional report requested
by or through the carrier under subsection (d)(3) of this section; and
(3) CPT code "99080" with modifiers "73" and "EC" (for "extra copy") shall
be used when the doctor is billing for an extra copy of a previously filed
report requested by or through the carrier.
Comment: Several commenters thought it would be simpler and more efficient
if the cost of the report were considered in the reimbursement for the office
visit rather than having a separate bill or separate line of billing for the
report: "adopting a separate billing process for the filing of work status
reports - as opposed to factoring the costs of such services into the fee
schedule - would serve only to unduly increase paperwork, time, and expense
for physicians, employers, and carriers alike, to the detriment of the system."
Response: The Commission disagrees. Historically, doctors have billed for
reports separately. Specifically the Commission's fee guidelines have told
doctors to bill required reports using CPT code 99080. Also, the Commission
has reduced the minimal reporting requirements of the rule significantly (with
it now being less than the prior reporting requirements of the TWCC-61 and
TWCC-64). Therefore, there should be minimal impact on administrative costs.
Carriers who wish to limit the administrative costs should limit their requests
for additional reports to those cases where such reports are appropriate and
worth the extra cost to the carrier.
COMMENTS ON HOW FREQUENTLY THE REPORT IS TO BE FILED
Comment: Commenter suggested that the Work Status Report should be completed
at each appointment, but no more often than every 2 weeks, even after the
patient is able to return to full duty so there would be no question as to
the patient's current work status. This was nearly the opposite of other concerns
regarding cases in which there are very serious injuries (e.g. when the employee
is permanently disabled) or when the employee retires, the form would not
provide useful information after maximum medical improvement (MMI) and suggested
that continuing to file the form on a scheduled basis would not be appropriate
(and would be a waste of time and money) and filing it at the request of an
interested party would be more appropriate.
Response: As noted, the Commission has reconsidered how often the report
should be filed by the doctor based, in part, on concerns about the effect
that reimbursement of all these reports would have on medical costs. The suggestion
that the doctor continue to file reports confirming that the employee is able
to return to work is inconsistent with the direction that the Commission believes
the rule should follow. Although it is possible for an employee who has been
released to return to work without restrictions to later be restricted from
work (either partially or entirely), the danger that this would cause delayed
payment of income benefits is relatively minor because both the employer and
the doctor have a duty to file reports with the carrier. Further, the employee
has a vested interest in notifying the carrier of the disability.
Regarding the issue of permanent restrictions, now that the doctor will
generally only be filing the Work Status Report at the beginning of the claim
and when the employee's work status or activity restrictions changes, the
issue of continuing to file reports on employees whose condition has not or
will not change is moot. The only time a doctor will be required to file a
report in this situation is if the carrier requests one on its or its employer's
behalf and it is unlikely that either the employer or the carrier will believe
that additional reporting is appropriate in the case of an employee with permanent
restrictions or who is retired.
Comment: Several commenters suggested that it would be preferable if the
doctor only had to file the report when the employee's condition changed.
Another commenter questioned whether the report needed to be filled out every
two weeks: "If one has a common, uncomplicated, broken wrist, it takes 6 weeks
for that to heal. At two weeks one might be ready to go back to work at a
one-handed job, if their employer offers a one-handed job. If they do not,
then it will be 6 to 8 weeks routinely before one can return to work, if the
person has to be 100 percent rehabilitated. Those are very standard types
of time. In those types of situations a report every two weeks is quite redundant."
Another suggestion was to modify modifying the second sentence of subsection
(e) to require the report to be filed with the employer when the employee's
work restrictions change which the previous rule did not do. The commenter
pointed out that the employer needed to know whether the employee's restrictions
have become less restrictive or more restrictive so that the employer can
adjust the employee's job duties as necessary to meet the employee's restrictions:
"This change would be more consistent with the program encouraging employers
and treating doctors to communicate about modified duty."
Response: The Commission agrees that the number of reports required to
be filed by the rule should be reduced. The Commission also agrees that when
there is a substantial change in the employee's activity restrictions a Work
Status Report should be filed and the employer should receive a copy of the
report. This is necessary to ensure that the modified duty that the employee
is performing is appropriate to the employee's medical condition.
Although the Commission can anticipate cases where additional reporting
(i.e. a report as often as once every two weeks) could be useful to the employer
and carrier, applying a constant reporting standard to all claims will generally
be overkill and unnecessarily drive medical costs up. Therefore, as noted,
the Commission is changing the minimum number of reports required by the rule
to more closely match the suggestions that the report only be filed when there
is a change in work status or a substantial change in activity restrictions.
If the carrier or employer believes that additional reporting is necessary
and appropriate on a given claim or for their claims management practices
in general, the carrier can request that the doctor file on a more frequent
basis. However, in order to ensure that this reporting does not become excessive,
doctors will not have to file reports more often than once every two weeks
and the schedule will be based upon the scheduled appointments with the employee
(in order to ensure that carriers are not dictating the appointment dates/frequency).
At some point, the Commission could revise the filing requirements again
if it adopts standard return to work guidelines. This would allow for automatic
reporting on an exception basis based upon whether a claim was exceeding a
guideline. However, at this time, such a system is not workable because the
lack of standards would likely be a cause of disputes and questions over whether
a report was due. Subsection (d) was amended as follows to implement the changes
in filing requirements:
(d) The doctor shall file the Work Status Report:
(1) after the initial examination of the employee, regardless of the employee's
work status;
(2) when the employee experiences a change in work status or a substantial
change in activity restrictions; and
(3) on the schedule requested by the insurance carrier (carrier), its agent,
or the employer requesting the report through its carrier, which shall not
to exceed one report every two weeks and which shall be based upon the doctor's
scheduled appointments with the employee.
In addition, to ensure that there is no confusion about what "change in
work status" and "substantial change in activity restrictions" mean, the Commission
has added language to subsection (a) and made minor changes to the subsection
to simplify the language of the rule as follows:
(a) As used in this section:
(1) the term "doctor" means either the treating doctor or a referral doctor,
as defined by §133.4 of this title (relating to Consulting and Referral
Doctors);
(2) "substantial change in activity restrictions" means a change in activity
restrictions caused by a change in the employee's medical condition which
either prevents the employee from working under the previous restrictions
or which allows the employee to work in an expanded and more strenuous capacity
than the prior restrictions permitted (approaching the employee's normal
job);
(3) "change in work status" means a change in the employee's work status
from one of the three choices listed in subsection (a)(4) of this section
to another of the choices in that subsection; and
(4) the term "work status" refers to whether the injured employee's (employee)
medical condition:
(A) allows the employee to return to work without restrictions (which
is not equivalent to maximum medical improvement);
(B) allows the employee to return to work with restrictions; or
(C) prevents the employee from returning to work.
Comment: Commenters suggested that the doctor should always file the report
with the employer as well as the carrier, rather than simply filing it with
the employer at the beginning of treatment and when the employee's work status
changes. One commenter pointed out that the "employer is an interested party
for the duration of the claim and is entitled to Work Status information from
each visit whether or not the status has changed." The other commenter suggested
that this would be less confusing (since doctors would not have to send it
to different people under different conditions) but indicated that if the
employee were required to provide a copy to the employer, then perhaps the
doctor would not need to do so.
Response: The Commission agrees. Having one standard for who receives reports
is simpler to follow. However, the fact that the report will generally only
be filed when there is a change in work status or activity restrictions unless
requested, means that the employer will always get a copy of the report. Subsection
(e) has been changed as follows:
(e) The Work Status Report filed as required by subsection (d) of this
section shall be provided to the employee at the time of the examination
and shall be sent, not later than the end of the second working day after
the date of examination, to the carrier and the employer.
COMMENTS ON THE CONTENT OF REPORT
Comment: Commenters suggested that the requirement in subsection (c) for
an estimated expiration date for restrictions should be eliminated. Commenters
were concerned that carriers would attempt to use such dates to attempt to
stop or deny treatment and/or benefits to employees and argued that since
the expiration dates were nonbinding, they did not have value: "Although TWCC
does not hold an expected expiration date binding, insurance carrier adjusters
& case managers tend to do so. In doing so, the patient then is penalized
for not being able to return to work on the projected date. Therefore, an
expected date should not be required."
Another commenter suggested clarifying §129.5(c) to specify that restrictions
with an expiration date may be considered as ended in the absence of a change
or extension from the doctor assigning them.
Response: The Commission disagrees with the suggestion that the rule be
changed to not require expected expiration dates. Expected expiration dates
serve a number of purposes. First, they help carriers with case management
by giving them a better means of determining whether an employee is likely
to accrue TIBs and by providing dates that the carrier can use in a diary
system to track claims once benefits have started. In addition, expected expiration
dates help employers better manage their operations by helping them determine
when they might be able to have the employee back on modified duty and how
long such duty might be expected to last. It also helps the employee understand
the doctor's assessment of their work status.
Although the simple fact that an expected expiration date has been reached
is generally not grounds to terminate benefits (particularly when the doctor
has not yet had the time to file a subsequent report), in some cases it will
be appropriate to dispute disability based upon an expected expiration date.
One example of this would be where the doctor released the employee to return
to work with restrictions but also released the employee from treatment (e.g.
the employee is treated for a sprained ankle and the doctor's restrictions
include minimal standing and walking for two weeks). In this case, if the
employee is released from treatment by the doctor, then it might be reasonable
to expect disability to end when the doctor estimated the restrictions would
expire. Another example of when such disputes would be appropriate is when
the employee is no longer receiving treatment and can not be located.
Each situation must be evaluated separately based, in part, on the type
of restrictions that were expected to "expire." In many cases it will not
be appropriate to dispute disability or presume a lack of disability based
solely on an expected expiration date. For example, if the employee had not
yet been released to modified duty, and had a significant injury, then the
"expiration" of the full restriction from work would more reasonably only
be expected to result in the employee's being able to work at modified duty.
Without a bonafide offer of employment, an employee who is able to return
to work with restrictions is still entitled to TIBs. But, as noted, if the
employee had been released to return to work with restrictions when the restrictions
supposedly "expired," it might be reasonable to assume the employee could
return to work without restriction and thus does not have disability. In all
these cases, the carrier's first action when an expiration date is reached
should be to contact the employee, employer, and doctor to try to verify whether
the employee has returned to work without restrictions or whether the doctor
anticipates extending or modifying the employee's restrictions.
Comment: Commenter suggested that when a doctor indicates that an employee
is totally incapacitated, the doctor should be required to give "proper and
adequate medical documentation" as to why the employee is unable to work.
Another commenter suggested that the change in the amount of time to file
the report should be coupled with a requirement that the doctors state "the
specific objective medical basis or finding necessitating the employee be
off work."
Response: Although the Commission agrees that doctors should have medical
documentation that explains an employee's medical condition, the Commission
disagrees that this information should be provided as part of the Work Status
Report. Doctors are required to provide an explanation of why the employee
can not return to work even with restrictions on the TWCC-73; however "proper
and adequate medical documentation" would likely be more extensive information
than the Work Status Report was designed to convey and would be better provided
as part of the bill for an office visit if such documentation is required.
Further, if the carrier disagrees with the doctor's opinion regarding the
employee's work status, the carrier can file a notice of dispute of disability
in accordance with §124.2 (relating to Carrier Reporting and Notification
Requirements).
Comment: Commenter suggested that details on why the employee is not able
to do even light duty work impedes the progress of coordination of doctor,
employer, employee and insurance company for a safe return to the work environment
and leads to miscommunication and adversarial roles. Another commenter disagreed
with the requirement on the form for a doctor who indicates that the employee
can not return to work at all, to provide a specific explanation of how the
condition precludes the employee from returning to work objecting to the "requirement
of a 'specific explanation' because it will required an inordinate amount
of time to explain to non-medical personnel (i.e. employers) the rationale
for the employee being unable to return to work." The commenter was concerned
that this would cause unnecessary confusion and questions.
Response: The Commission disagrees. There are clearly cases in which an
employee will be unable to work even in a light duty capacity (especially
during the period immediately following a significant injury). It is important
that employees, employers, and carriers understand the reasons for this and
how long the full restriction is expected to last. The Commission believes
that more complete information improves communication, improves return to
work, and reduces disputes.
Further, the Commission believes that if the doctor is indicating that
the employee can not return to work in any capacity, the doctor should be
required to provide an explanation of how the employee's medical condition
precludes the employee from returning to work in order to ensure that the
form is not biased. For example, if it were easier for the doctor to check
a box marked "unable to work" with no further explanation than it was to indicate
the employee can return to work with restrictions (necessitating identifying
the restrictions on the form), the simplicity of the choice might influence
the way the report is filled out.
Finally, employers and carriers have indicated that information on why
the employee can not return to work (i.e. with restrictions) is useful for
claims management purposes. Employers who have questions about the doctor's
explanation can call their carriers for assistance or call the treating doctor.
Texas Labor Code §413.018 charged the Commission to "establish a program
to encourage employers and treating doctors to discuss the availability of
modified duty to encourage the safe and more timely return to work of injured
employees." If the requirement to explain why the employee can not return
to work spurs that communication, then it would appear that the intent of
the statute was met.
However, it is important to address the idea that most employees should
be released to return to work with restrictions rather than being placed completely
off work. As noted by several other commenters, in general, when making a
decision about the employee's work status the doctor is not supposed to be
influenced by whether the employer has a specific position available. The
job of the doctor is to identify what the employee's restrictions are and
then let the employer attempt to find appropriate work. If the restrictions
are so stringent that the employer does not have a position that can meet
the restrictions, there is no impact on the employee's income benefits. The
Commission agrees that doctors need to provide restrictions on all cases where
it is appropriate to do so and let the employer have the opportunity to try
to meet those restrictions.
Comment: Commenter suggested that reimbursement for simply filing the form
and checking off that the employee is unable to work seemed excessive unless
the doctor sent a note explaining the status. The commenter suggested that
the doctor should also file a treatment plan that details the way the doctor
intends to relieve symptoms at follow up visits.
Response: The Commission disagrees that doctors should file treatment plans
as part of the Work Status Report. The Work Status Report is not intended
to address medical treatment because it is not a traditional medical report.
The report is merely designed to improve case management and return to work.
Further, the report does require an explanation from the doctor of why the
employee cannot work if the doctor is restricting the employee from all work.
COMMENTS RELATING TO PROPER COMPLETION OF THE REPORT
Comment: Commenters suggested that reimbursement for the form and/or office
visits should be tied to properly completing the form. One commenter noted
that many doctors merely state "off work until further notice" and that then
employees who only have minor injuries are off work for months. Another commenter
expressed concern about her experiences with the TWCC-73 form where doctors
either ignore blanks for estimated expiration dates or write "unknown" and
suggested amending subsection (i) to condition reimbursement on providing
the required information by changing the first sentence of the subsection
to read:
"Notwithstanding any other provision of this title, a doctor may bill and
a carrier shall reimburse a report required under this section in the amount
of $15 for completion of the information required."
Another commenter noted that often "the forms are not filled out completely:
missing description precluding working in any capacity; given off work status
for two years with no rationale (such as on a simple strain which normally
resolves in 8 weeks); or being given no follow up reporting of work status
after initial status done." Commenter suggested that to solve this, when forms
are incomplete, there should be no compensation to the doctor or it should
be given at a reduced rate.
Response: The Commission agrees that Work Status Reports need to be properly
completed. As noted, expected expiration dates serve a number of purposes.
First, they help carriers with case management by giving them a better means
of determining whether an employee is likely to accrue TIBs and by providing
dates that the carrier can use in a diary system to track claims once benefits
have started. In addition, expected expiration dates help employers better
manage their operations by helping them determine when they might be able
to have the employee back on modified duty and how long such duty might be
expected to last. Expiration dates also help employees by giving them information
about how their injury is expected to heal and when they can plan to be able
to return to their job or to a modified duty position.
Work Status Reports on which the doctor has failed to provide an estimated
expiration date for restrictions or put "unknown," in all but the most extreme
cases (e.g. an employee in a coma or paralyzed or the doctor has not yet been
able to evaluate the full extent of a serious injury involving multiple fractures),
would be considered incomplete and the doctor would be in noncompliance, because
an estimated expiration date for restrictions is required by the rule.
Texas Labor Code §408.021 entitles injured employees to health care
that enhances the ability to return to or retain employment. This shows the
inter-relatedness of medical care and return to work and makes it the doctor's
responsibility to provide treatment that enhances the employee's ability to
return to work. Therefore, doctors need to put realistic expected expirations
on an employee's restrictions.
Some doctors who are giving two year estimates on the expiration of restrictions
may be confusing the concept of "return to work without restrictions" with
"MMI." An employee can be released to return to work without restrictions
before MMI and an employee with a serious injury who has reached MMI might
not yet be able to return to work without restrictions (especially in the
case of statutory MMI). In making estimates of expiration of restrictions,
doctors need to not confuse these two different concepts.
Under Texas Labor Code §413.018, the Commission is also charged with
providing by rule for the periodic review of medical care provided in claims
in which guidelines for expected or average return to work time frames are
exceeded. As the Commission moves forward in doing this, it is possible that
the Work Status Report will play a prominent role in those reviews, particularly
in identifying the claims in which such a review is necessary. Doctors who
simply put 104 weeks for the estimated expiration on every claim or who similarly
estimate excessive periods for minor injuries may find themselves more likely
to have their treatment reviewed.
In order to address the issue of "completeness," the Commission has changed
subsections (b) and (c). Each of these subsections previously provided some
guidance on what information was required on the report. Now subsection (b)
merely requires doctors to file the report in the form and manner prescribed
by the Commission and subsection (c) lays out what is required in a complete
report. Subsection (i) was also amended to indicate that doctors are only
entitled to reimbursement when a report is complete (see prior changes) The
Commission is providing guidance on completeness in the rule in order to set
out a consistent standard and prevent doctors from having to deal with multiple
interpretations of what is required. The changes to subsections (b) and (c)
are as follows:
(b) The doctor shall file a Work Status Report in the form and manner prescribed
by the Commission.
(c) The doctor shall be considered to have filed a complete Work Status
Report if the report is filed in the form and manner prescribed by the Commission,
signed, and contains at minimum:
(1) identification of the employee's work status;
(2) effective dates and estimated expiration dates of current work status
and restrictions (an expected expiration date is not binding and may be adjusted
in future Work Status Reports, as appropriate, based on the condition and
progress of the employee);
(3) identification of any applicable activity restrictions;
(4) an explanation of how the employee's workers' compensation injury prevents
the employee from returning to work (if the doctor believes that the employee
is prevented from returning to work); and
(5) general information that identifies key information about the claim
(as prescribed on the report).
COMMENTS ON WHO FILES THE REPORT
Comment: Commenters indicated support for the clarification of who files
the report.
Commenter suggested that the Work Status Report be filed by the doctor
who is providing treatment at the time: "For example, if the Treating Dr.
has referred the patient to a referral dr. for pain management, the pain management
specialist should complete the TWCC-73 until the patient returns to the Treating
Dr. The Treating Dr. should continue to be responsible for assessment every
60 days to maintain continuity of care."
Response: The Commission believes that it is appropriate for the doctor
providing primary treatment at the time to be responsible for filing the report.
The Commission also agrees that the treating doctor should continue to be
responsible for the claim but disagrees with the specific suggestion that
the treating doctor should be responsible for an assessment every 60 days
as this is not required by the Commission's fee or treatment guidelines and
the Commission has repealed the requirement that treating doctors file Subsequent
Medical Reports (TWCC-64) every sixty days (effective July 15, 2000).
Comment: Commenter suggested that the rule specifically mention whether
RME doctors are required to file the report. Another commenter suggested that
the rule should specify that the RME doctor is required to file the Work Status
Report if requested to address work restrictions.
Response: The Commission agrees. A new subsection (j) has been added that
reads as follows:
(j) As provided in §126.6(f) of this title (relating to Order for
Required Medical Examinations), a doctor who conducts a required medical
examination (on anyone's behalf) in which the doctor determines that the
employee can return to work immediately with or without restrictions, shall
file the Work Status Report required by this section, but shall do so in
accordance with the requirements of §126.6(f).
Comment: Commenter was confused by the requirements of subsection (f)(2),
believing that it required treating doctors to file the Work Status Report
for RME doctors. The commenter suggested that it would be much faster and
easier if the RME doctor simply filed the report at the time of the examination
rather than making the treating doctor do it; especially since the treating
doctor should not be responsible for another doctor's actions which the treating
doctor may not agree with.
Response: The Commission agrees that the RME doctor should be required
to file his or her own report. Subsection (f)(2) requires the treating doctor
to file a Work Status Report in response to receiving the RME doctor's report
that the employee can return to work. The RME doctor's report is also a Work
Status Report. The purpose of requiring the treating doctor to file a Work
Status Report in response to the RME doctor's report is similar to the requirement
for a treating doctor to indicate agreement or disagreement with a certification
of MMI and assignment of an impairment rating by a doctor other than a designated
doctor under §130.3 (relating to Certification of Maximum Medical Improvement
by a Doctor Other Than the Treating or Designated Doctor). Getting the treating
doctor's opinion on these reports can help avoid disputes or can help clarify
issues in a dispute. To make certain that this subsection is understood, it
has been amended as follows:
(f) In addition to the requirements under subsection (d), the treating
doctor shall file the Work Status Report with the carrier, employer, and
employee within seven days of the day of receipt of:
(1) functional job descriptions from the employer listing available modified
duty positions that the employer is able to offer the employee as provided
by §129.6(a) of this title (relating to Bona Fide Offers of Employment);
or
(2) a required medical examination doctor's Work Status Report that indicates
that the employee can return to work with or without restrictions.
COMMENTS ON THE TIMEFRAME FOR FILING THE REPORT
The Commission received comments from a number of commenters relating to
the proposal to extend the timeframe for filing the report with the carrier
and employer. These included support for the extension, opposition to the
extension, and the suggestion that the period be extended further.
Comment: A number of commenters supported addition of one working day to
the timeframe for filing the report to the carrier and employer. A commenter
included a lengthy description of problems he has had with doctors who he
believes keep employees off of work for too long and believed that the "TWCC-73
is a good process". This commenter supported extension of time to file the
report but insisted that there must be vigorous enforcement efforts to ensure
timely filing of the reports. Commenter felt that the Commission has adopted
a double standard with regard to enforcement of health care providers as compared
to carriers and employers.
Response: The Commission agrees that the time frame for filing the report
with the employer and the carrier should be extended as proposed and agrees
that the Commission may need to take enforcement action to ensure compliance
with the rule if it finds there are compliance problems. However, the Commission
disagrees that the Commission has adopted a double standard with regard to
enforcement actions against non-compliant health care providers. When considering
what enforcement action may be appropriate on a given instance of noncompliance,
the Commission reviews the facts of the case and weighs the six factors required
by Texas Labor Code §415.021(c). These factors are applied for each type
of violation, regardless of the violator. The commenter's perception that
the Commission tends to work more carrier violations than provider violations
may be caused by the fact that (through May of fiscal year 2000) more than
70% of administrative violation referrals received by the Commission are alleged
carrier violations and less than 9% of referrals are alleged health care provider
violations.
Comment: Commenter argued against changing the TWCC-73 reporting system:
"Do you actually feel that the current requirement of medical reports every
sixty days is adequate?" The commenter went on to provide an example of a
claim in which the employee is off work for months and there are only three
medical reports filed and suggested the Commission solve this problem by rule.
Commenter instead suggested that the doctor should be required to file the
report with carrier at the time of the examination since that is when the
employee gets it. Another commenter felt that: "The filing time for distribution
to the carrier and employer is unrealistic. If the form is to be given to
the employee on the date of service, the form should be transmitted to the
carrier and the employer the same day. It is obvious the provider will know
who the employer is and will also be aware of the carrier. It is common practice
for a provider to withhold service until they have that information."
Another commenter opined that the proposal to extend the filing timeframe
does "not serve the goals of the workers' compensation system as it relates
to providing timely notice regarding a workplace injury, and the work status
of an injured employee. The TWCC in its original adoption of this rule required
that the report be filed within 24 hours. Our original comments asked that
in light of the requirement that the injured employee be given a copy of the
report at the time of examination, why should there be a delay in providing
immediate feedback to the employer? System goals could be better met if the
report was also forwarded immediately to the carrier and employer. The original
adoption provided what we felt was a reasonable compromise of 24 hours, and
we are now forced to oppose the current attempts to extend the filing time
from 24 to 48 hours. Notice to the employer must be provided as quickly as
possible. Further, as providers have complained of the inability to verify
coverage, a requirement of an earlier notice could also serve to better assist
a healthcare provider in obtaining necessary coverage information."
Response: The Commission disagrees. The Work Status Report is not a medical
report and further, it is not filed once every 60 days as the commenter seems
to believe. It appears that the commenter is confusing the requirement to
file the TWCC-64 - Subsequent Medical Report (which was due once every 60
days) with the requirements of this rule. The requirement to file the TWCC-64
has been deleted effective July 15, 2000.
Regarding the suggestions that the report should be provided to the employer
and carrier on the date of examination, as indicated in response to similar
comments received on the 1999 proposal of §129.5 (contained in the adoption
preamble published in the Texas Register on December 17, 1999), the Commission
does not believe that the timeframe should be shortened to the date of the
examination. If the examination were to take place late in the day, the doctor
might not have the opportunity to timely transmit the report. Further, as
indicated in the proposal to these amendments, doctors have been having difficulty
obtaining correct transmission information from carriers and employers, making
it harder to timely submit the report in one working day. It is not always
"obvious the provider will know who the employer is" as many employers do
business under different names and the employee may not know the true name
of the company or what facsimile number the employer would want the report
sent to. In decentralized operations (i.e. those where the employees work
on various job sites), it is especially likely that the employee will not
know what the facsimile number is.
Carriers and employers who want to ensure the report is received as early
as possible should be very proactive in providing transmission information
to the doctor. For example, carriers could provide employers with coverage
cards that contain voice and facsimile numbers and email addresses on them
that the employer would give to the employee to take to the doctor. The cards
could even have places on them for employers to add their contact information
as well. This would make it much easier for doctors to file reports and have
the potential to greatly improve communication between doctors, employers,
and carriers. In addition, the employee would have this information as well
which could help the employee contact the carrier when needed. Employers could
choose to provide this type of information as well.
Comment: Commenter suggested that there should be 3 days to submit the
form: "A large, geographically diverse clinic system will take at least that
long to collect the form from the physician and send to processing/fax areas.
Also injury verification often takes one working day from the visit." Another
commenter suggested that "the time frame for faxing to the insurance carrier
and employer should be 3-4 business days rather than the proposed 2. Currently,
in order for a fax to be received within the 1-2 day time frame, 90% of the
time, our staff must fax to insurance carriers after 5 p.m. or before 8 a.m.
to ensure the fax goes through due to the heavy volume of faxes being sent
and received by both offices." This commenter also pointed out that when "the
TWCC-73 has to be filed by mail, the 2-day time frame is being extended simply
by the fact that it may take 5-7 days to reach the employer or carrier."
Response: The Commission disagrees. If a doctor is filing reports outside
of traditional business hours, extending the time to file would not allow
the commenter to avoid filing reports outside of normal business hours because
the number of reports being sent each day would remain the same. Basically,
if the volume of reports is the same and the days of the week that the doctor
can file the report remains the same (i.e. 5 days in a traditional work week),
then extending the time frame would have no effect because the number of reports
per day would remain unchanged. In order to improve timely filing and avoid
busy signals, doctors and carriers could also utilize some kind of facsimile
"buffering" system where faxes are kept in a system memory like voice mail
until there is a free machine to print the information out. In addition, doctors
and employers could use internet faxing services which will automatically
complete the transmission.
The Commission does not support extending the time to send the Work Status
Report to the employer and carrier beyond the end of the second working day
following the date of the examination. By statute, a carrier always has seven
days from the date it receives first written notice of the injury to investigate
a claim before it can be required to pay income benefits.
Because the earliest that TIBs are required to be paid is seven days after
they accrue (which is the eighth day of disability), and the carrier's investigation
of a claim is not expected to delay payment of benefits to the employee, ideally,
TIBs should be paid 15 days after the employee began to experience disability.
However, this is only theory. In reality, TIBs are usually paid later because
often the carrier does not receive written notice of the injury until after
the eighth day of disability and the carrier still has a minimum of seven
days before it is required to make a payment.
The reason for the delay in notice to the carrier can be found in the statute
and rules. By statute, employers have eight days from the day the employee
has been absent from work for more than a day (occupational diseases are different)
to send the Employer's First Report of Injury (TWCC-1) to the carrier. This
means that at minimum, the employer has 10 days from the date of injury to
file the report (two days of absence from work to trigger the duty to file
plus eight days of time to actually send the report to the carrier). In addition,
employers are permitted by statute to send the reports by mail which adds
another 3-5 days to the transmittal time. Further, if the eighth day falls
on a weekend or a holiday, the due date is extended to the next working day.
Therefore, although the ideal is for the first check to be issued 15 days
after the injury, in the worst case scenario, it is possible for an employer
to timely submit the TWCC-1 and the carrier to timely initiate benefits (i.e.
within seven days) but the check not be issued until 26 days after the injury
(even in cases without delayed or intermittent lost time). For the period
of May 1, 1999 through April 30, 2000, the average number of days from date
of injury to issuance of the first check by carriers was 19.4.
The Commission anticipates the Work Status Report often serving as the
carrier's first written notice of injury. To the extent the Work Status Report
is received by the carrier prior to the eighth day of disability, benefits
should be issued earlier (i.e. closer to the 15-day ideal). In addition, the
Work Status report will be a very valuable tool for carriers to confirm disability
and the duty to pay benefits (because the estimated expiration of restrictions
should tell the carrier whether or not and when benefits are likely to accrue).
Therefore, when considering the number of days that doctors are given to file
the report, the Commission has considered the effect that later reporting
would have on the initiation of benefits. The driving fact here is that TIBs
are paid weekly. Therefore, it is important to try to ensure that the Work
Status Report be received by the carrier prior to the seventh day after the
date the benefits accrued. The earlier in the pay period the carrier receives
the Work Status Report, the more likely the carrier will be to react to it
and timely issue benefits by the due date.
In most cases, employees will see doctors on a working day (Monday through
Friday, other than a legal holiday). This analysis ignores the issue of holidays
for the sake of simplification. If the doctor has until the end of the second
working day following the date of the examination to file the report with
the carrier and employer (as was proposed), then reports will be due to be
filed within 2 calendar days 60% of the time (i.e. a Monday examination will
require a report to be sent by close of business on Wednesday, a Tuesday examination
will require a report on Thursday, and a Wednesday examination will require
a report on Friday). However, 40% of the time, the report will not be due
for 4 calendar days (i.e. reports for examinations held on a Thursday or Friday
would not be due until Monday or Tuesday respectively).
If the doctor were given three working days to file the Work Status Report,
then reports would be due within 3 calendar days 40% of the time (i.e. for
examinations held on Monday or Tuesday) and reports would be due within 5
calendar days 60% of the time (i.e. for examinations held on Wednesday through
Friday). Remembering that not all employees obtain medical treatment immediately
(because they don't realize how serious their condition is or have to wait
for an appointment) and taking into account that TIBs are paid weekly, having
60% of Work Status Reports filed as late at 5 days after the date of the examination
will greatly reduce the amount of time that carriers have to react to the
reports and timely initiate, terminate, or reinitiate TIBs. The Commission
believes that using two working days will provide additional time to health
care providers while not significantly impacting benefit delivery.
Regarding the delay in employers' receiving Work Status Reports when the
employer does not have facsimile or electronic transmission capability (thus
necessitating transmission by mail), that delay is not the doctor's concern.
The rule requires doctors to send the report by the end of the second working
day following the date of the examination; it does not require the employer
to receive it. The fact that some employers will not receive the report as
quickly as others does not provide a reason to extend the filing timeframe
for all employers. If the employer wants to get the report more quickly, the
employer can obtain access to a facsimile machine and be sure to provide the
facsimile number to the doctor.
Comment: Commenters suggested that the goals of timely reporting and prompt
and appropriate return to work would be better met if the employee were required
to report his or her work status to the employer within 12-24 hours of receiving
the Work Status Report. One of the commenters suggested that the employee
be required to provide a copy of the report to the employer.
Response: The Commission disagrees that a requirement for the employee
to report or provide a copy of the report within 24 hours should be included
in the rule. There are circumstances in which it would be inappropriate to
require the employee to deliver the report to the employer (e.g. when the
employee is hospitalized).
Comment: Commenter expressed concerns with subsections (f) and (g) of the
rule which require treating doctors to file a Work Status Report within 7
days of the date the doctor receives either functional job descriptions from
the employer or a Work Status Report from an RME doctor indicating that the
employee can return to work. "Filing the report within 7 calendar days of
an employer providing a list of available duties or of a required medical
exam [doctor's] report is insufficient time. In the field of orthopaedic surgery,
7 calendar days may only actually provide 3-4 days or less for staff to discuss
the situation with the treating [doctor]. Either 10 calendar days or 7 business
days would be more appropriate." The commenter also stated that the "Work
Status Reports should NOT be completed and thus filed without the patient
being seen by the treating [doctor]. In our experience, whenever work restrictions
are updated between office visits, responsibility for advising the patient
'falls between the cracks,' and the patient is not properly notified in advance
of the need to return to work." The commenter also pointed out that if a Work
Status Report is filed between appointments, the patient cannot be given a
copy as is required, nor can the patient discuss the changes with the doctor
as readily as he can in an office setting.
Response: The Commission disagrees. The purpose of requiring the treating
doctor to file his or her own Work Status Report in response to the RME doctor's
report is similar to the requirement for a treating doctor to indicate agreement
or disagreement with a certification of MMI and assignment of an impairment
rating by a doctor other than a designated doctor under §130.3 (relating
to Certification of Maximum Medical Improvement by a Doctor Other Than the
Treating or Designated Doctor). Under §130.3 a treating doctor is given
7 days to indicate agreement or disagreement with the MMI certification and
impairment rating assigned by a doctor other than a designated doctor and
is not expected to do a separate examination of the employee to do so. Given
the amount of documentation a doctor has to review to determine whether an
impairment rating is accurate, it seems reasonable to require a treating doctor
to also respond within seven days to receipt of a report by an RME doctor
that the employee can return to work or receipt of functional job descriptions
from the employer. The documentation and the treating doctor's own notes should
allow the Work Status Report to be filled out without a subsequent examination.
However, the Commission agrees that if a Work Status Report was issued
as required by subsection (f) in between appointments, the doctor would not
be able to hand a copy of the report to the employee as required when the
doctor files a routine report as required by subsection (d). To address this,
subsection (h) was simplified and amended as follows:
(h) The doctor shall file the Work Status Report as follows:
(1) A report filed with the carrier or its agent shall be filed by facsimile
or electronic transmission;
(2) A report filed with the employer shall be filed by facsimile or electronic
transmission if the doctor has been provided the employer's facsimile number
or e-mail address; otherwise, the report shall be filed by personal delivery
or mail; and
(3) A report filed with the employee shall be hand delivered to the employee,
unless the report is being filed pursuant to subsection (f) of this section
and the doctor is not scheduled to see the employee by the due date to send
the report. In this case, the doctor shall file the report with the employee
by facsimile or electronic transmission if the doctor has been provided the
employee's facsimile number or e-mail address; otherwise, the report shall
be filed by mail.
The changes also make it easier to identify the means by which Work Status
Reports are to be filed with the required recipients.
Comment: Commenter requested that TWCC clarify the rule so as to clearly
state that a doctor who is preparing the Work Status Report under the provisions
of subsection (f) of §129.5 shall rely upon available medical records
and the doctor's latest examination of the injured employee because an "additional
examination of the injured employee is not required nor appropriate."
Response: Although the Commission agrees that the doctor should not delay
filing the report required by subsection (f) in order to perform an examination,
there may be times where it is appropriate for the doctor to perform another
examination of the employee when filing the report under subsection (f). For
instance, the doctor may already have an examination scheduled within the
seven day period following the receipt of the functional job descriptions
from the employer or the Work Status Report from an RME doctor.
OTHER COMMENTS
Comment: Commenter asked how treating doctors are to now send medical information
to carriers and asked for clarification as to whether the doctor is to dictate
a letter and send it with the bill.
Response: Rather than providing medical reports through the TWCC-61 and
TWCC-64 on a scheduled basis, after July 15, 2000, doctors will simply be
required to provide medical information to carriers as required in the Commission's
fee and treatment guidelines and rules.
The Commission recently adopted §133.1 (relating to Definitions for
Chapter 133, Benefits - Medical Benefits) which defines "complete medical
bill" and specifies documentation that will be required with certain types
of bills. Among the requirements are that for the three highest level office
visits, single and interdisciplinary programs such as work conditioning programs,
work hardening programs, and physical medicine treatment(s) and/or services(s),
providers will have to include: a copy of progress notes and/or SOAP (subjective/objective
assessment plan/procedure) notes, which shall substantiate the care given
and the need for further treatment(s) and/or services(s), and indicate progress,
improvement, the date of the next treatment(s) and/or service(s), complications,
and expected release dates.
Comment: Commenter requested that the Commission revise the definition
of "Treating Doctor" to include physician assistants and nurse practitioners
which the commenter says are licensed to see, treat and care for patients.
The commenter expressed the belief that the Commission regards physician assistants
and nurse practitioners as "non-providers" and that the Commission does not
have the authority to prevent them from treating injuries or signing reports.
The commenter suggested that the Commission's current policies (as he understands
them) towards physician assistants and nurse practitioners may cause them
to leave the system thus reducing access to medical care.
Response: The Commission disagrees. This rule does not address the definition
of a treating doctor. Further the Commission does not have the authority to
change the definition of treating doctor which is defined in the Texas Labor
Code. Texas Labor Code §401.011(42) states that the term "treating doctor"
"means the doctor who is primarily responsible for the employee's health care
for an injury." Texas Labor Code §401.011(17) provides that the term
"doctor" "means a doctor of medicine, osteopathic medicine, optometry, dentistry,
podiatry, or chiropractic who is licensed and authorized to practice." Therefore
allowing physician assistants and nurse practitioners to serve as treating
doctors would require a change in the statute.
The Texas Labor Code also requires that certain actions be performed by
a "doctor" or by the "treating doctor," e.g. §408.123 requires that it
be a doctor who certifies maximum medical improvement and assigns an impairment
rating. §403.018 requires the Commission to implement a program to encourage
employers and treating doctors to discuss the availability of modified duty
and return to work.
Regarding the issue of physician's assistants and nurse practitioners signing
reports, this rule requires treating or referral doctors to file Work Status
Reports and these doctors are responsible for evaluating and reporting on
the employee's work status. A treating doctor is the person who is required
and responsible for an employee's health care and it is that person's judgement
that is sought regarding the employee's ability to return to work. This is
in keeping with the statutory mandate that the Commission facilitate communication
about return to work between employers and treating doctors. In some situations,
the treating doctor refers an employee to another doctor who then is primarily
treating the employee and as such is in the best position to provide return
to work information in the place of the treating doctor.
The Commission considers physician assistants and nurse practitioners to
be an important part of the workers' compensation system as are all health
care practitioners authorized by the Texas Labor Code who provide reasonable
and necessary health care that cures or relieves the effects naturally resulting
from the compensable injury; promotes recovery; or enhances the ability of
the employee to return to or retain employment.
Comment: Commenters suggested that the TWCC-73 is duplicative of the TWCC-61
(Initial Medical Report) and TWCC-64 (Subsequent/Specific Medical Report)
and thus wastes time and money. It was suggested that the TWCC-73 be discontinued
or replace the TWCC-61 and TWCC-64.
Response: The Commission agrees there are some similarities between the
TWCC-73 and the TWCC-61 and TWCC-64. However, as of July 15, 2000, the TWCC-61
and the TWCC-64 will no longer be required reports and thus the commenters'
concern is moot. Further, the TWCC-73 provides a standard mechanism to report
on work status and work restrictions. A standard mechanism makes it easier
for carriers, employers, and employees to understand what the employee's work
status and work restrictions are. This will improve claims management and
make it easier to develop appropriate modified duty offers.
Comment: Commenter suggested that the rule should identify a specific violation
level for failure of the doctor to comply with the rule.
Response: The Commission disagrees. As noted in preambles to other recently
adopted or amended rules, the Texas Labor Code provides numerous avenues for
enforcement by the Commission to ensure compliance with the statute and rules.
Listing all those avenues in each rule would be redundant to the statute and
would unnecessarily lengthen Commission rules. The Commission has been deleting
specific enforcement language from rules because in some cases, the language
did not cover all the Commission's enforcement options and the Commission
does not want this to be seen as intent to limit its authority to take enforcement
action as authorized by the statute. In the immediate case, the statute authorizes
the issuance of a penalty not to exceed $500 for a failure to timely file
required reports or records and authorizes issuance of a penalty not to exceed
$10,000 and a cease and desist order for repeated administrative violations
or allowing, as a business practice, the commission of repeat administrative
violations. The statute also allows for other enforcement actions such as
sanctions and removal from the Commission's approved doctors list.
Comment: Several commenters expressed concern regarding Advisory 2000-01
which was issued by the Commission to inform system participants of potential
changes to §129.5 and the TWCC-73 form. The Commenters felt that the
Advisory 2000-01 was improperly used to suspend an adopted rule which is not
legal. The specific language from the advisory that the commenters were concerned
with read: " [g]iven the pending revisions, until further notice, the Commission
will not require doctors to use the TWCC-73 form or to meet the turn-around
time of one working day from the date of examination. Use of the Form TWCC-73
in the interim is optional."
Response: The Commission agrees that the language of the advisory could
have better expressed its intent. With the changes being considered to the
rule and form, the Commission felt it was necessary to provide system participants
with information about these changes. In addition, the implementation of reporting
in accordance with §129.5 turned out to be different than was initially
anticipated by the Commission when the rule was adopted. In many cases, doctors
learned about the new rule for the first time when a carrier called them looking
for a report. Further, many providers' offices had set up patient databases
to help fill out forms to speed up the process and improve accuracy but had
not been able to update them to file the TWCC-73.
Regarding the issue of suspending use of the TWCC-73 by advisory, §129.5
requires doctors to file the Work Status Report "in the form and manner prescribed
by the Commission." Initially, the Commission prescribed the original TWCC-73
form as being "the form and manner" for filing the Work Status Report. As
noted, many providers integrate TWCC forms into their patient database systems.
Once it became apparent that the TWCC-73 form was going to be revised, the
Commission made its use optional until such time as the form could be finalized
to make sure that doctors and carriers did not waste money integrating a soon-to-be-
revised form into their systems. This was clearly not beyond the Commission's
authority to do by advisory. It is also important to note that although the
advisory made the TWCC-73 form optional, the advisory did not relieve doctors
of the responsibility to file a Work Status Report required by §129.5.
Unfortunately the language in the advisory regarding the one day turn around
gave the wrong impression to readers. Given the significance of the change
in reporting requirements that the new rule represented and the fact that
the Commission had recently proposed changing the rule to extend the filing
deadline from the end of the next working day after the examination to the
end of the second working day after the examination, the Commission wanted
to essentially set up a grace period and give system participants time to
get used to the new reporting. It should be noted that it was not just the
doctors who were having problems with the rule. Part of the difficulties that
doctors were having with the original one day deadline was obtaining carrier
transmission information. Often the carrier's first notice of the injury was
the doctor's office calling to find out what facsimile numbers the carrier
and employer wanted the report sent to. Apparently many carriers and employers
had not yet adjusted their processes to provide this information when the
doctor's offices called. Few system participants were adequately prepared
to implement this new reporting requirement.
The basic intent of the language in the advisory was to communicate that
at this time, the Commission was not going to stringently enforce the one
day filing deadline at that time. The Texas Labor Code clearly gives the Commission
the authority and the responsibility to consider various factors in deciding
what enforcement actions may be appropriate in a given situation. Among the
factors the Commission is required to consider in issuing penalties is "other
matters that justice may require" and "the penalty necessary to deter future
violation." In this case, the Commission felt that rigid enforcement of the
one day filing requirement when revision of this timeframe was being considered
and when the rule represented major changes in reporting in the system, was
not yet appropriate.
Comment: Commenter noted that the TWCC-73 was designed to assist in providing
information to the carrier in handling the injured employee and hoped that
the information on the report would also help carriers to timely pay medical
bills. Another commenter suggested that carriers need to be clear about the
information they want provided in order to secure payment for medical services.
The commenter was concerned that the TWCC-73 would be another form that doesn't
answer the carriers needs, and that they will then delay payment of services
pending additional documentation: "It's a constant battle and it truly increases
overhead in the offices. We already accept reduced fees, we already accept
a certain amount of paperwork to fulfill TWCC statutes. Please don't allow
the carriers any more latitude to deny payment on services because the stipulated
forms don't answer their 'needs'." Commenter suggested that the information
requested on the form should answer most, if not all questions about a patient's
progress and the rationale for further treatment: "Doctors will continue to
create full medical records for their own use, because that is good medicine.
TWCC forms will never replace, nor should they, a complete medical record.
. . . However, unless there is a compensability issue, payment should be made
based on the information on these forms."
Response: The Commission disagrees that the TWCC-73 should have a significant
impact on timely payment of medical bills (other than perhaps serving as earlier
notice of the injury). The TWCC-73 primarily communicates the employee's work
status. It does not address whether specific medical care is reasonable or
necessary and does not represent documentation required to get a bill paid.
The primary intent of §129.5 and the Work Status Report is to improve
communication between treating doctors and employers to facilitate early return
to work and to provide a standard reporting system for work status within
the Texas workers' compensation system. It is also hoped that one of the benefits
of the rule will be a reduction in calls to doctor's offices by carriers and
employers attempting to obtain work status or disability information and that
employers and carriers will find claims management to be easier. The commenters'
concerns focus more on issues covered by new §133.1 which includes a
definition of a complete medical bill.
Comment: Commenter suggested that if implemented, the rule will need a
6-month phase-in because it will take that long to re-write computer data
bases and complete training of providers.
Response: The Commission agrees in part. The Commission believes that providers
might need up to six months to incorporate the TWCC-73 form into their systems
but disagrees that the Commission should delay implementation of the changes
to the rule for six months. As changed, the rule reduces the frequency at
which the reports are required, increases the amount of time to file the report,
and provides for reimbursement of the report. If these amendments were delayed,
doctors would be required to file reports within one working day, as often
as once every two weeks, and would not get paid for the reports. Therefore,
although the Commission will allow a six month implementation period for use
of the new form, the Commission will not delay implementing changes to the
rule itself.
Comment: Commenter suggested that carriers be required to post their fax
numbers on the TWCC Web Page: "Carrier fax numbers can often be difficult
to find and we are often told that a faxed document has been sent to the wrong
place, therefore we repeatedly fax to carriers."
Response: The Commission agrees that something like this would be a valuable
way to improve communication between carriers and providers and help ensure
timely reporting. However, the Commission cannot accommodate the commenter's
suggestion at this time.
This suggestion assumes that carriers would have one facsimile number for
submission of all Work Status Reports. Although smaller carriers or those
that have only one claims management office might only have one facsimile
number, the reality of the system is that the majority of claims are handled
by carriers that have multiple claims management offices and also may utilize
multiple claims management companies (each of which could have multiple offices).
Given that the call from the doctor's office asking for a facsimile number
may be the first the carrier has heard of the claim, the carrier might have
to make a decision right there as to where the claim is likely to be assigned
so that the correct number can be given. Other technical and practical factors
will also need to be considered.
It may be possible to proactively identify carrier facsimile numbers on
a per employer basis (since many carriers seem to divide claims management
by employer) or on a regional basis (i.e. claims in this region go to a particular
facsimile number). The Commission is currently involved in a business process
improvement effort which is examining access to contact information such as
the commenter suggested and this suggestion has been forwarded to that group
for their consideration. Further, as suggested previously, carriers or employers
could be proactive by developing cards that contain contact information on
them which would be given to an employee the first time the employee goes
to the doctor.
In the mean time, doctors are encouraged to document difficulties they
have obtaining correct facsimile number information from carriers (i.e. date
and time of contact, person spoken with, etc). This information could be helpful
in determining how large the problem is and what the best mechanism is to
deal with it. Doctors should probably record this information on a routine
basis anyway to show who at the carrier gave them the number the report was
faxed to so that the carrier can straighten out any problem it has on its
end.
Comment: Commenter asked whether the TWCC-73 would replace the forms that
most large employers use for return to work purposes and whether doctors would
be able to ignore the employers' forms in favor of the TWCC-73.
Response: The Commission does not require doctors to fill out reports used
by employers. However, it is worth noting that the Commission has received
input from a number of employers who have indicated that they like the new
draft of the form that was circulated for input separately from the rule and
that they felt it would meet their needs from a claims management and return
to work point of view. Therefore, it is likely that many employers will adopt
use of the Commission's standard form. Part of the reason for having a standard
form is to make it easier to fill out for doctors and easier to read and understand
for carriers, employers, and employees and to avoid the use of multiple forms.
That is why the Commission will be mandating use of a standard form.
Comment: Commenter felt that "Work Status" should continue to refer to
any restrictions the patient may have and should not necessarily refer to
specific work activities: "It should be the responsibility of the employer
to provide work duties that fit within the restrictions outlined by the treating
doctor. In the event the employer and/or insurance carrier agree work duties
are available within these restrictions, they should be held accountable.
If work duties within these restrictions are not available, the patient should
not be penalized for failure to perform work duties that might cause increased
symptoms or further injury."
Response: The Commission agrees. As set out in subsection (a), "work status"
basically addresses whether the employee's medical condition allows the employee
to return to work and if so, whether this return is with or without restrictions.
If an employer offers an employee work and it turns out that the work duties
do not comply with the doctor's restrictions and/or are not within the employee's
ability to return to work, the employee's work status does not change. The
employee is still considered to be able to return to work with restrictions.
The difference is that the work offered is not within the employee's ability
to work and thus the employer's offer could be challenged as not being a bona
fide offer of employment. It is not the intent of this or any other Commission
rule that employees should return to work that is not appropriate to the employee's
medical condition.
The amendment is adopted pursuant to the following statutes: Texas Labor
Code, §401.024 as amended by the 76th Texas Legislature, which provides
the Commission the authority to require use of facsimile or other electronic
means to transmit information in the system; Texas Labor Code, §402.042,
which authorizes the Executive Director to enter orders as authorized by the
statute as well as to prescribe the form manner and procedure for transmission
of information to the Commission; Texas Labor Code, §402.061, which authorizes
the Commission to adopt rules necessary to administer the Act; Texas Labor
Code, §406.010, which authorizes the Commission to adopt rules regarding
claims service; Texas Labor Code, §408.004, which addresses required
medical examinations and the affect of a carrier selected doctor's opinion
of payment of TIBs; and Texas Labor Code, §413.018, as amended by the
76th Texas Legislature, which requires the Commission develop a program to
encourage employers and treating doctors to communicate about modified duty
offers.
The amendment is adopted pursuant to the following statutes:
Texas Labor Code, §§401.024, 402.042, 402.061, 406.010, 408.004,
and 413.018.
§129.5.Work Status Reports.
(a)
As used in this section:
(1)
the term "doctor" means either the treating doctor or a
referral doctor, as defined by §133.4 of this title (relating to Consulting
and Referral Doctors);
(2)
"substantial change in activity restrictions" means
a change in activity restrictions caused by a change in the employee's medical
condition which either prevents the employee from working under the previous
restrictions or which allows the employee to work in an expanded and more
strenuous capacity than the prior restrictions permitted (approaching the
employee's normal job);
(3)
"change in work status" means a change in the employee's
work status from one of the three choices listed in subsection (a)(4) of this
section to another of the choices in that subsection; and
(4)
the term "work status" refers to whether the injured
employee's (employee) medical condition:
(A)
allows the employee to return to work without restrictions
(which is not equivalent to maximum medical improvement);
(B)
allows the employee to a return to work with restrictions;
or
(C)
prevents the employee from returning to work.
(b)
The doctor shall file a Work Status Report in the form
and manner prescribed by the Commission.
(c)
The doctor shall be considered to have filed a complete
Work Status Report if the report is filed in the form and manner prescribed
by the Commission, signed, and contains at minimum:
(1)
identification of the employee's work status;
(2)
effective dates and estimated expiration dates of
current work status and restrictions (an expected expiration date is not binding
and may be adjusted in future Work Status Reports, as appropriate, based on
the condition and progress of the employee);
(3)
identification of any applicable activity restrictions;
(4)
an explanation of how the employee's workers' compensation
injury prevents the employee from returning to work (if the doctor believes
that the employee is prevented from returning to work); and
(5)
general information that identifies key information
about the claim (as prescribed on the report).
(d)
The doctor shall file the Work Status Report:
(1)
after the initial examination of the employee, regardless
of the employee's work status;
(2)
when the employee experiences a change in work status
or a substantial change in activity restrictions; and
(3)
on the schedule requested by the insurance carrier
(carrier), its agent, or the employer requesting the report through its carrier,
which shall not to exceed one report every two weeks and which shall be based
upon the doctor's scheduled appointments with the employee.
(e)
The Work Status Report filed as required by subsection
(d) of this section shall be provided to the employee at the time of the examination
and shall be sent, not later than the end of the second working day after
the date of examination, to the carrier and the employer.
(f)
In addition to the requirements under subsection (d), the
treating doctor shall file the Work Status Report with the carrier, employer,
and employee within seven days of the day of receipt of:
(1)
functional job descriptions from the employer listing available
modified duty positions that the employer is able to offer the employee as
provided by §129.6(a) of this title (relating to Bona Fide Offers of
Employment); or
(2)
a required medical examination doctor's Work Status
Report that indicates that the employee can return to work with or without
restrictions.
(g)
Filing the Work Status Report as required by subsection
(f) of this section does not require a new examination of the employee.
(h)
The doctor shall file the Work Status Report as follows:
(1)
A report filed with the carrier or its agent shall be filed
by facsimile or electronic transmission;
(2)
A report filed with the employer shall be filed by
facsimile or electronic transmission if the doctor has been provided the employer's
facsimile number or e-mail address; otherwise, the report shall be filed by
personal delivery or mail; and
(3)
A report filed with the employee shall be hand delivered
to the employee, unless the report is being filed pursuant to subsection (f)
of this section and the doctor is not scheduled to see the employee by the
due date to send the report. In this case, the doctor shall file the report
with the employee by facsimile or electronic transmission if the doctor has
been provided the employee's facsimile number or e-mail address; otherwise,
the report shall be filed by mail.
(i)
Notwithstanding any other provision of this title, a doctor
may bill for, and a carrier shall reimburse, filing a complete Work Status
Report required under this section or for providing a subsequent copy of a
Work Status Report which was previously filed because the carrier, its agent,
or the employer through its carrier, asks for an extra copy. The amount of
reimbursement shall be $15. A doctor shall not bill in excess of $15 and shall
not bill or be entitled to reimbursement for a Work Status Report which is
not reimbursable under this section. Doctors are not required to submit a
copy of the report being billed for with the bill if the report was previously
provided. Doctors billing for Work Status Reports as permitted by this section
shall do so as follows:
(1)
CPT code "99080" with modifier "73" shall be used when
the doctor is billing for a report required under subsections (d)(1), (d)(2),
and (f) of this section;
(2)
CPT code "99080" with modifiers "73" and "RR" (for
"requested report") shall be used when the doctor is billing for an additional
report requested by or through the carrier under subsection (d)(3) of this
section; and
(3)
CPT code "99080" with modifiers "73" and "EC" (for
"extra copy") shall be used when the doctor is billing for an extra copy of
a previously filed report requested by or through the carrier.
(j)
As provided in §126.6(f) of this title (relating to
Order for Required Medical Examinations), a doctor who conducts a required
medical examination (on anyone's behalf) in which the doctor determines that
the employee can return to work immediately with or without restrictions,
shall file the Work Status Report required by this section, but shall do so
in accordance with the requirements of §126.6(f).
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 26, 2000.
TRD-200004433
Susan Cory
General Counsel
Texas Workers' Compensation Commission
Effective date: July 16, 2000
Proposal publication date: March 10, 2000
For further information, please call: (512) 804-4275