The Texas Workers' Compensation Commission (the commission) proposes an amendment to §126.8 (relating to Commission Approved Doctor List) and repeal of §126.10 (relating to Commission Approved List of Designated Doctors).

The Texas Register published text shows the proposed amended language and should be read to determine all proposed amendments.

House Bill 2600 (HB-2600), passed by the 77th Texas Legislature in its 2001 session, made numerous amendments to the Texas Labor Code. Many of these changes related to regulating medical benefit delivery by: changing the commission's approved doctor list (ADL) and application process (including mandated training); changing the grounds under which the commission can issue sanctions (as well as expanding the sanctions); adding a medical advisor to the commission staff and Medical Quality Review Panel (QRP), and providing for expanded financial disclosure and prohibiting inappropriate referral fees, kickbacks, or other financial incentives.

To implement these changes, the commission examined its existing rules and found that most of the provisions relating to general regulation of doctors and health care are spread out among several chapters (126, 133, and 134 in particular). Given the scope of changes to be made and to simplify usage, the commission is proposing to move these provisions to Chapter 180. The commission's medical advisor provided recommendations regarding these rules.

The amendments and additions proposed for Chapter 180 are based upon legislative changes provided in Articles 1 and 6 of HB-2600. Chief among the changes is that admission to the ADL now requires a doctor to apply and meet specified criteria. Prior to this change admission to the ADL was automatic upon receiving a license. Now doctors will be required to take training and register to be on the list. In addition, the Commission has been given the authority to deny or restrict admission based upon factors such as practice restrictions. Approved doctors will be issued certificates of registration that expire if re-training requirements are not met.

Another major change is that HB-2600 now mandates that doctors serving any role in the Texas workers' compensation system be on the ADL. In the past only treating doctors were required to be on the ADL. Doctors who are not on the ADL will be prohibited from performing services or receiving reimbursement in the Texas workers' compensation system (except in an emergency or for immediate post-injury medical care).

HB-2600 also mandates that the commission set up modified training and registration requirements for certain types of doctors such as those who do not participate in the Texas workers' compensation system at a high volume or those who only perform peer reviews and utilization review (UR). Doctors from other states are permitted to be on the ADL. However, out of state doctors who review health care services (such as though utilization review or peer reviews) are required to be supervised by a doctor licensed in Texas.

HB-2600 requires that the commission collect information about treating doctors regarding return to work outcomes, patient satisfaction, and cost and utilization of health care in order to promote quality of care and best practices. The commission previously collected information on cost and utilization of care but this was based upon the person providing the care and who was not necessarily the treating doctor for the claim. This information will be important over time because HB-2600 makes major changes to the way the commission regulates doctors on the ADL.

As a simplification, HB-2600 now mandates that the executive director remove doctors from the list who fail to register with the commission, who are deceased, whose license to practice has been revoked, suspended, or not renewed by the appropriate licensing authority, or who requests to be removed. Previously, removal under these circumstances required commissioner approval.

The commission's authority to address activities not in full compliance with the law or not representative of quality care has been greatly expanded. Both the grounds for taking action and the actions the commission is authorized to take are broader than under the previous statute.

To help evaluate behavior by doctors and carriers (as relates to medical benefit delivery), HB-2600 created an official medical advisor position which is imbued with specific authority and responsibilities. Also created was the QRP which functions to support the medical advisor in reviewing the conduct of doctors and carriers relating to medical benefit delivery.

Proposed Amendment to §126.8 -- Commission Approved Doctor List

Current §126.8 has been the rule that covers all issues associated with the ADL. The commission is proposing to move all of the requirements for the ADL from current §126.8 to proposed new §180.20 (relating to Application for Registration / Commission Approved Doctor List) which sets out the requirements for being admitted to the ADL. However, subsections (a) and (b) of §126.8 will continue to be effective until August 1, 2003 which is the date that the doctors must fully comply with the new requirements of §180.20 if they wish to be added to or remain on the ADL. A new subsection (c) is proposed to "sunset" these provisions.

The commission proposes the deletion of subsections (d) through (h) which address deleting a doctor from the ADL, the doctor's opportunity for appeal, the doctor's ability to request reinstatement, and the way such a request will be handled because these processes are proposed to be replaced by §180.26 (relating to Doctor and Insurance Carrier Sanctions) and §180.27 (relating to Sanctions Process/Appeals/Restoration/Reinstatement). The reason the commission is not proposing to leave these provisions active in the current rule is that, although the new ADL requirements will not be mandatory until August 1, 2003, the legislative provisions relating to sanctions were effective immediately.

Proposed Repeal of §126.10 -- Commission Approved List of Designated Doctors

The commission proposes repeal of current §126.10 because proposed new §180.21, §180.26, and §180.27 will replace it. The differences between the proposed new rules and the current rule are outlined in the proposal preamble to chapter 180 (located elsewhere in this issue of the Texas Register) and were primarily driven by the requirements of HB-2600.

Dr. Bill Nemeth, the commission's medical advisor, has determined the following with respect to fiscal impact for the first five-year period the proposed amended and new rules are in effect.

With regard to enforcement and administration of the rules by state or local governments there will be no significant impact on local governments. However, there are significant fiscal implications to the commission because of the need to develop or modify automated systems, review thousands of applications for the ADL, and train and monitor doctors and carriers, and train commission staff. However, it is difficult to quantify these costs. The ability of the executive director to administratively remove some doctors from the ADL should decrease some costs for the commission.

Local government and state government, as covered regulated entities, will be impacted in the same manner as persons required to comply with the rules as proposed.

Dr. Nemeth has determined that for each year of the first five years the rules as proposed are in effect, the public benefits or costs will result from new and amended rules in proposed Chapter 180. The following public benefit/cost note applies to the Chapter 180 rules proposal.

The public benefits anticipated as a result of enforcing the rules will be better access to higher quality medical care, reduced medical and indemnity claims costs (which will eventually result in reduced premiums), and more timely returns to work. However these benefits will increase over time and may not be significant in the first two years as the requirements of the rules will not be fully implemented by then.

Employees

Employees will benefit in a number of ways. The intent of HB-2600, and these rules is to ensure that employees have access to doctors who will provide timely quality care that is designed to cure or relieve the effects naturally resulting from the compensable injury, promote recovery, and/or enhance the ability of the employee to return to or retain employment. The commission expects that employees will see improvements in these areas as a result of the new rules. The exceptions provided for some out-of-state and low-volume doctors should help ensure employee access to quality health care.

The training relating to MMI and impairment should provide a number of benefits. Employees should receive more accurate impairment ratings and this will ensure that they get the benefits they are entitled to. More accurate impairment ratings should also reduce disputes and this should reduce the number of employee exams required and reduce delays in employees receiving their benefits. Disputes relating to MMI date should also be reduced because doctors will be better educated on how to certify MMI.

Studies have shown that employees who remain off work longer are less likely to ever return to work at wages approaching those they were earning while injured. The emphasis on timely return to work in the training that doctors will receive should result in fewer employees remaining off work longer than medically appropriate. As a result, the long-term impact of injuries on employees should be lessened.

Currently carriers utilizing the medical opinions of doctors who are not fully trained in Texas workers' compensation law often interrupt employees' medical care. By educating peer review and utilization review doctors, disputes that affect benefit delivery may be avoided. Reductions in disputes should improve medical benefit delivery, lower frustration, and speed recovery. Education and training of designated doctors should result in faster resolution of disputes.

Employees are not expected to see an increase in costs as a result of these rules. Employees who are currently kept off work longer than is appropriate might receive fewer benefits under the new rules but this is offset by the benefit of returning to work.

Health Care Providers

Doctors will similarly benefit from these rules in a number of ways. First, as noted, carrier-selected doctors will be better trained and this should reduce unnecessary disputes (both prospective and retrospective). With costs currently very high and rising, action by some carriers designed to address non-compliant doctors may be affecting some doctors who are compliant. To the extent that the commission is able to reduce the number of non-compliant doctors (e. g. by changing behavior or removing the doctors who won't change), the remaining doctors should experience increased efficiencies in the handling of their claims. In addition, these doctors are likely to see an increase in their worker's compensation business.

Currently some doctors offer improper inducements to employees in order to get the employees to change doctors. Often the doctors who are doing this are the doctors who keep employees off work longer than medically necessary and otherwise add to system costs by overutilizing care. The prohibition of improper inducements and the efforts to remove non-compliant doctors, should also increase workers' compensation business for those who comply with system rules and regulations.

Another benefit to providers is that the commission's ability to sanction carriers for quality of care issues is expanded by these rules. The increased ability to hold carriers responsible for their actions and inactions should result in improved compliance and, as a result, payments of medical bills may be more timely and accurate while disputes may be reduced.

Some doctors may see a slight increase in costs associated with obtaining email access and with having to take periodic training. However these increases are expected to be nominal and the statute requires that the commission establish some training requirements. Doctors already have continuing education requirements which are required for them to keep their licenses in good standing. Since the required training will be certified for continuing education credit, doctors will be able to fulfill two requirements at once. Treating doctors may also experience some costs associated with reporting outcome information to the commission. However, this requirement is mandated by the Legislature.

The expanded financial disclosure requirements may also increase some costs to providers, however, these requirements were also mandated by the Legislature.

Insurance carriers

Insurance carriers will benefit from the lower costs that will come as the system transitions from using an open list of approved doctors to using a controlled list of doctors specially trained in Texas workers' compensation. Prior to HB-2600, the commission's ability to exclude or otherwise limit doctors from participation in the system was limited. The system has seen workers' compensation costs (both indemnity and medical costs) rise significantly, especially when compared to costs in other states. To the extent that the commission is able to change utilization and return to work patterns (e.g. by changing behavior or by removing doctors who won't change behavior), costs shall be reduced.

In addition, with full financial disclosure, carriers will be able to give extra scrutiny to medical services provided through a self-referral by the doctor. Though these services may be reasonable and necessary, doctors who self-refer have an additional incentive to make the referral and thus additional scrutiny may be appropriate.

Similarly, prohibitions against improper inducements should ensure that only those benefits that the employee is truly entitled to are delivered.

The commission's expanded ability to remove doctors from the system should help increase compliance with the Statute and Rules. This should reduce claim costs by reducing overpayments caused by late reports by doctors.

Employers

Because insurance premiums are driven by claim costs, employers will see benefits to the extent that the commission is able to successfully implement HB-2600. Employers should benefit because the new rules should promote earlier returns to work. The earlier returns to work should also reduce the loss of productivity that an injury can cause. Employers should not see an increase in costs associated with these rules.

There will be no adverse economic impact on small businesses or on micro-businesses as a result of the proposed rule amendments. There will be only a proportionate difference in the cost of compliance for small businesses and micro-businesses as compared to the largest businesses, including state and local government entities. The same basic processes and procedures apply, regardless of the size or volume of the business. The business size cost difference will be in direct proportion to the volume of business that falls under the purview of these proposed rules.

Comments on the proposal must be received by 5:00 p.m., October 1, 2001. You may comment via the Internet by accessing the commission's website at http://www.twcc.state.tx.us and then clicking on "Proposed Rules." This medium for commenting will help you organize your comments. You may also email your comments to RuleComments@twcc.state.tx.us or mail or deliver your comments to Nell Cheslock at the Office of the General Counsel, Mailstop #4-D, Texas Workers' Compensation Commission, Southfield Building, 4000 South IH-35, Austin, Texas 78704-7491.

Commenters are requested to clearly identify by number the specific subsection and paragraph commented upon. The commission may not be able to respond to comments which cannot be linked to a particular proposed subsection. Along with your comment, it is suggested that you include the reasoning for the comment in order for commission staff to fully evaluate your recommendations. Unspecified comments submitted will not be addressed.

A public hearing on this proposal will be held on October 2, 2001, at the Austin central office of the commission (Southfield Building, 4000 South IH-35, Austin, Texas). Those persons interested in attending the public hearing should contact the commission's Office of Executive Communication at (512) 804-4430 to confirm the date, time, and location of the public hearing for this proposal. The public hearing schedule will also be available on the commission's website at www.twcc.state.tx.us .

28 TAC §126.8

§126.8.Commission Approved Doctor List.

(a) On or after January 1, 1993, except in emergency situations, injured employees must receive medical treatment from a doctor on the commission approved doctor list (the list). This list initially includes all doctors licensed in Texas on or after January 1, 1993, and doctors licensed in other jurisdictions who have been added to the list by the commission.

(b) Doctors licensed in other jurisdictions may ask to be added to the list by submitting a written request containing information prescribed by the commission. Unless the doctor has been deleted from the list by the commission, a carrier shall not withhold reimbursement to doctors licensed in other jurisdictions when the only reason for nonpayment is that the doctor is not presently on the list.

(c) This section is no longer effective on or after August 1, 2003. [ ~~Each month, the division of medical review (the division) will provide insurance carriers, through designated Austin representatives, with the names of:~~ ]

~~[ ~~(1)~~ doctors deleted from the list;]~~

~~[ ~~(2)~~ doctors reinstated to the list; and]~~

~~[ ~~(3)~~ doctors added to the list from other jurisdictions.]~~

~~[ ~~(d)~~ Doctors may be deleted from the list for the following:]~~

~~[ ~~(1)~~ sanctions imposed by the commission against the doctor for violations of the Act, commission rules, or commission orders;]~~

~~[ ~~(2)~~ sanctions by Medicare or Medicaid for substandard medical care, overcharging, or overutilization of medical services;]~~

~~[ ~~(3)~~ substantial differences between the doctor's charges, fees, diagnoses, or treatments and those the commission finds to be fair and reasonable;]~~

~~[ ~~(4)~~ revocation or suspension of a doctor's license by the appropriate licensing authority;]~~

~~[ ~~(5)~~ limitations or restrictions on the professional license or disciplinary actions taken by the appropriate licensing authority;]~~

~~[ ~~(6)~~ criminal conviction which indicates an unwillingness or inability to provide quality treatment or to abide by the Act, commission rules, or commission orders; or]~~

~~[ ~~(7)~~ other activities which warrant deletion.]~~

[ ~~(e)~~ The division shall notify a doctor by certified mail, return receipt requested, of the division's intent to recommend to the commissioners that the doctor be deleted from the list. Within 20 days after receiving the notice, a doctor may request a hearing as provided by §408.023 of the Texas Labor Code (relating to List of Approved Doctors), §2001.051 of the Texas Government Code (relating to Opportunity for Hearing and Participation), and Chapter 148 of this title (relating to Hearings Conducted by the State Office of Administrative Hearings). If a request for hearing is received, the commission shall hold a hearing as provided in Chapter 148 of this title. If no response for hearing is filed within the time allowed, the division's recommendation will be reviewed by the commissioners at a public meeting and a decision made to either delete or maintain the doctor on the list.]

[ ~~(f)~~ As described in Texas Labor Code §402.072 (relating to Sanctions) and Chapter 148 of this title, only the commissioners may delete a doctor from the list. The commission shall notify the doctor by issuing an order of deletion which describes the effects of the deletion on the doctor and the doctor's patients subject to workers' compensation. This order shall be delivered to the doctor by certified mail, return receipt requested, with a copy to the licensing authority and copies to those injured employees the commission is aware are being treated by that doctor. After receipt, the doctor shall also inform any injured employees, seeking treatment under the Act, of the doctor's deletion from the list and that the injured employee may not, except in an emergency, receive care. Failure to inform the injured employees in the form and format prescribed by the commission may subject the doctor to administrative penalties of up to $10,000 and other sanctions as provided by the Act.]

[ ~~(g)~~ To be reinstated, a doctor deleted from the list must apply for reinstatement in the form and manner prescribed by the commission through the Medical Review Division in Austin. If, in the division's opinion, the doctor has all the appropriate unrestricted licenses to practice at the time of reinstatement, has overcome the conditions which resulted in deletion, and should be reinstated, the division shall recommend that the commissioners reinstate the doctor to the list.]

[ ~~(h)~~ If, in the division's opinion, the doctor has not met the requirements for reinstatement, or for other reasons should not be reinstated, the division shall notify the doctor by certified mail, return receipt requested, of the division's intent to recommend to the commissioners that the doctor not be reinstated. Within 20 days after receiving the notice, a doctor may request a hearing as provided in subsection (e) of this section.]

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on August 20, 2001.

TRD-200104892

Susan Cory

General Counsel

Texas Workers' Compensation Commission

Earliest possible date of adoption: September 30, 2001

For further information, please call: (512) 804-4287

28 TAC §126.10

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Workers' Compensation Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

No other statutes, articles, or codes are affected by the proposed repeal.

§126.10.Commission Approved List of Designated Doctors.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on August 20, 2001.

TRD-200104893

Susan Cory

General Counsel

Texas Workers' Compensation Commission

Earliest possible date of adoption: September 30, 2001

For further information, please call: (512) 804-4287

Chapter 130. IMPAIRMENT AND SUPPLEMENTAL INCOME BENEFITS

The Texas Worker's Compensation Commission (commission) proposes amendments to §§130.1-130.4, §130.6, §130.110, and new §130.5 concerning Impairment and Supplemental Income Benefits. The commission also proposes the simultaneous repeal of current §130.5. The amendments and new rule are proposed to implement changes made by House Bill 2600 (HB-2600) passed by the 77th Texas Legislature in its 2001 session. The commission's Medical Advisor has consulted on and provided recommendations regarding these proposed rules.

The Texas Register published text shows words proposed to be added to or deleted from the current text, and should be read to determine all proposed changes and additions.

HB-2600 made numerous amendments to the Texas Workers' Compensation Act (the Statute) affecting the commission's approved doctor List (ADL); the commission's designated doctor list (DDL); entitlement to and purpose of required medical examinations (RMEs); and designated doctor examinations. The amendments relating to the ADL and DDL were amendments to the Texas Labor Code §408.023 and the addition of §408.0231. Taken together, these subsections now give the commission additional authority to regulate the participation of doctors in the Texas workers' compensation system. Among the more important changes are the requirement that all doctors involved in the system now be on the ADL, and an expansion of the commission's ability to mandate specific training requirements. In the past, only treating and designated doctors were required be on the ADL and training was limited to the designated doctor. The proposed rules allow only doctors with specific training to certify maximum medical improvement (MMI) status and assign impairment ratings (unless granted a specific exception by the commission). In addition to this proposal, the commission has proposed changes and additions to rules in chapter 180 of this title relating to Compliance and Practices (which appear elsewhere in this issue of the Texas Register) . These proposed rules address the changes to the ADL and DDL as well as set out the various roles and responsibilities of different types of doctors in the system, including the training that is required to be certified at a given level and the authorizations that are granted depending on certification levels.

The remaining proposed changes to the rules in chapter 130 implement the changes that HB-2600 made to the designated doctor and RME provisions of the Statute. HB-2600 changes the insurance carrier's (carrier) right to have an RME for the purpose of evaluating MMI and whole body impairment. As amended, the Statute now limits the use of a RME by a carrier-selected doctor to resolve issues regarding the appropriateness of the health care received by an employee and similar issues.

After January 1, 2002, carriers will be entitled to an RME for determination of MMI and/or impairment only after the employee has had a designated doctor evaluation for the same issues.

These changes were made through amendment to the Texas Labor Code §408.004, §408.122, and §408.125 and the addition of §408.0041.

The 77th Legislature recently passed SB-1264 which clarified that a physician assistant is the agent of that physician assistant's supervising physician for any medical services that are delegated by the physician and that are within the physician assistant's scope of practice and are delineated by protocols, practice guidelines, or practice directives established by the supervising physician.

Therefore, a physician assistant is permitted to perform services in the Texas workers' compensation system (as directed by a supervising physician). However, when a physician assistant does so, it remains the doctor who retains the responsibility under the Statute and rules. The doctor will be held responsible for an action or inaction of their physician assistant that violates the Statute or rules.

Holding the doctor responsible under these circumstances is not a change from current commission practice of holding the employing entity responsible for their agent's violations (for example, carriers are issued penalty when their third party administrator fails to timely issue benefit payments). Further, though the Statute requires the commission to monitor and regulate health care providers, it puts greater emphasis on the commission regulating doctors.

At this time, the commission is not proposing a specific rule to regulate the involvement of a physician assistant in a claim any more than such a rule exists for third party administrators. Though a physician assistant may perform an evaluation or provide other service on behalf of a supervising doctor (as directed by the doctor), bills for the services must be in the name and license number of the supervising doctor. When signing a report, a physician assistant will likewise be required to sign for the doctor. For example, if Joe Assistant is working for Dr. Bob Supervisor and needs to sign a report, the physician assistant shall sign "Joe Assistant for Dr. Bob Supervisor." All identification and licensing information on reports and bills must also be the supervising doctor's. This will allow the commission and carrier to know under whose direction the physician assistant is acting and be able to contact that doctor should a question or problem arise. It will also allow the commission to monitor doctor performance as required by HB-2600.

Proposed Amendment of §130.1 - Certification of Maximum Medical Improvement and Evaluation of Permanent Impairment

Proposed amendments to subsection (a) add the concept of "authorized doctor" to the existing concept of "certifying doctor." As noted, the changes in HB-2600 grant the commission additional authority to regulate doctors in the system including mandating training for the various roles that doctors can play in the system. Proposed rules in chapter 180 require doctors to have training on MMI/impairment or to obtain specific, one-time authorization by exception to certify MMI or assign an impairment rating. The proposed language in this subsection is reflective of these requirements.

Another change proposed in chapter 180 and reflected in subsection (a) of proposed §130.1, is that only treating doctors, designated doctors, or RME doctors (after a designated doctor examination) are permitted to be certifying doctors on a claim. The only exception to this occurs when the treating doctor chooses or is required to have another doctor perform an evaluation to certify MMI and assign an impairment rating in the treating doctor's stead.

The treating doctor's examination is clearly necessary. A designated doctor's evaluation is necessary when there is a question or dispute, and a carrier is entitled to an RME examination after the designated doctor's evaluation. These three doctors' opinions are generally all that are needed for the determination of MMI/impairment. Proposed §130.1(a) also prohibits non-authorized doctors from certifying MMI and/or assigning impairment ratings, provides that their opinions are invalid, and provides that an unauthorized doctor shall not be paid for evaluations or reports.

Proposed amendments to subsection (c) of §130.1 specify that if the certifying doctor chooses to use another health care practitioner to perform the testing required by the AMA Guides for an impairment rating, the other health care provider is required to have training in the evaluation of MMI and impairment equal to the training of the doctor. Testing performed by an untrained health care provider is invalid and is not reimbursable.

Because the proposed amendments require that all certifying doctors be trained, it is only logical to extend the training requirements to those who conduct the testing upon which the ratings will be based. This concept currently applies to designated doctor examinations. The proposed rule extends the requirement to all evaluations of impairment.

Proposed Amendments to §130.2 - Certification of Maximum Medical Improvement by the Treating Doctor (proposed to be re-titled as Certification of Maximum Medical Improvement and Evaluation of Permanent Impairment by the Treating Doctor)

Proposed amendments to subsection (a) of §130.2 clarify a treating doctor's responsibilities regarding certification of MMI and assignment of impairment rating. As discussed previously, if the treating doctor is not authorized to certify MMI or assign impairment ratings, the doctor shall make a referral to a doctor who is authorized. A treating doctor is also permitted to make such a referral even if the treating doctor is authorized to do MMI and impairment evaluations. However, if the treating doctor does so, then the referral doctor's evaluation becomes the treating doctor's evaluation.

Another proposed amendment to this subsection relates to certifying MMI and assigning impairment ratings in claims where the injury was extremely minor. In the past, the rules required a treating doctor to certify MMI and evaluate the employee for permanent whole body impairment -- even if the employee's injury was so minor as to not require treatment. These minor injuries are commonly referred to as "treat and release" cases by the medical community.

There is little reason to require an employee who has already returned to work in this type of situation to attend an additional appointment with the doctor. However, an employee who wishes to have an examination should not be denied one.

Proposed amendment to subsection (b) is merely a clean up and requires that certification of MMI and assignment of impairment rating be conducted in accordance with the requirements of §130.1. Proposed §130.1 is the main rule for certifications and other rules such as §130.2 add requirements applicable to specific circumstances.

Proposed amendments to subsection (c) update the citation to the Workers' Compensation Act.

The proposed addition of subsection (d) adds language regarding the treating doctor's responsibility to conduct an examination upon receipt of the commission's notice from subsection (c). This was implied by the current rule, but the additional language is proposed for clarification.

Proposed subsection (e) provides that a carrier may suspend TIBs if a report of medical evaluation has not been received by the date of statutory MMI. It also allows for a carrier to make a reasonable assessment, and if so, to initiate impairment income benefits (IIBs) within five days of making the assessment. The carrier shall continue to pay IIBs until the assessment is paid in full or is superseded by an impairment rating assigned in accordance with §130.1. This is an important clarification because, by statute, an employee is no longer entitled to receive TIBs upon reaching MMI. However, there are often cases where the employee reaches statutory MMI, but there has been no impairment rating assigned. An impairment rating is necessary to determine entitlement to, and the amount that should be paid.

Proposed Amendments to §130.3 - Certification Of Maximum Medical Improvement By A Doctor Other Than The Treating Or Designated Doctor (proposed to be re-titled as Certification of Maximum Medical Improvement and Evaluation of Permanent Impairment by a Doctor Other than the Treating Doctor) The current rule governs the duties of a doctor other than the treating doctor or the designated doctor when certifying MMI. In these cases, the certifying doctor was to file a copy of the report with the treating doctor and the treating doctor was to file his agreement or disagreement with the certifying doctor's report. Proposed §130.3 provides a similar process for the designated doctor's report.

Proposed subsection (a) also changes the reference to §130.1 to be consistent with its proposed title change. In addition, clarifying language is added relating to compliance with §130.1 and the subsection is expanded to apply to designated doctors.

Proposed Amendments to §130.4, concerning the Presumption that Maximum Medical Improvement has been Reached and Resolution when MMI has not been Certified

Proposed amendments to §130.4(a) provide a clear definition of statutory MMI and provide that the rule does not apply if the employee has reached statutory MMI.

Proposed amendments to §130.4(b) and (c) combine the two subsections and provide the conditions under which a carrier may presume that an employee has reached MMI and invoke the procedure outlined in the rule. The proposed changes make the requirements consistent with §130.1 as proposed in other rules in this chapter.

The proposed conditions are similar to those that exist under the current rule with differences resulting from the changes in the Statute. The proposed rule allows for the appointment of a designated doctor without a prior certification of MMI by another doctor.

Eliminated from the requirements is the statement that the employee's condition not be an occupational disease. With the changes in the Statute, the clarification in this rule that the treating doctor shall not certify MMI without an examination of the employee, and the proposed removal of finality language from §130.5, this exception to the ability to presume MMI is not necessary.

Two additional grounds for invoking the presumption of MMI procedure are proposed. First, the carrier can invoke the procedure on or after the date that a designated doctor estimated that the employee would reach MMI (assuming that a designated doctor had made such an estimate). Second, the carrier can invoke the procedure four weeks on or after the date the employee should have been able to return to work without restriction. This proposed requirement references the commission's work release guideline to be adopted in the near future. The commission anticipates proposal of a diagnosis based work release guideline at the same time or shortly after this rule is adopted and this guideline will provide a single standard that can be used by all system participants.

Deletion of current subsection §130.4(d) is proposed because the commission no longer issues interlocutory orders to suspend benefits

Current §130.4(e) is proposed to be redesignated as §130.4(c) and amended to better tie into proposed subsection (b).

Deletion of current §130.4(f) is proposed to eliminate the requirement that the carrier come to the commission for a letter to be sent to the treating doctor.

Current §130.6 .4(g) is proposed to be redesignated as §130.4(d) and amended to require the treating doctor to evaluate the employee's condition and complete and file the medical evaluation report as required by §130.1. It also provides for the treating doctor to notify the carrier if the employee has reached MMI, and if the doctor is not authorized to assign an impairment rating, to refer the employee to a doctor who is authorized.

The current rule requires the treating doctor to complete and file a Report of Medical Evaluation within seven days of the date of the examination. The commission proposes changing the requirement in this rule to mandate conducting the examination within 14 days of receipt of the request from the carrier and filing the report within seven working days of that date. The commission is also proposing language that covers the situation where the treating doctor is not authorized to evaluate MMI or impairment.

Current §130.4(h) is proposed to be redesignated as §130.4(e) and amended to allow the assignment of a designated doctor rather than the scheduling of a benefit review conference. This change is proposed because it is ultimately the designated doctor's opinion that is needed to resolve a dispute in this area.

Deletion of current §130.4(i) through (n) is proposed because they relate to benefit review conferences and they are redundant to other rules.

Proposed Repeal of Current §130.5 - Impairment Rating Disputes and Proposed New §130.5 - Entitlement and Procedure for Requesting Designated Doctor Examinations Related to Maximum Medical Improvement and Impairment Rating

The commission proposes repeal of current §130.5 and replacing it with new §130.5 which clearly outlines entitlement to, and process for, requesting designated doctor examinations relating to MMI and impairment ratings. The current rule addresses filing of disputes of impairment ratings. However, the current language is not necessary as it is largely duplicative of statutory provisions. Further, the current provisions allow delays in dispute resolution by permitting a carrier to begin payment of IIBs based upon the carrier's reasonable assignment but allowing 21 days for the carrier to file a notice of dispute of the rating.

In addition, the current rule does not require the appointment of a designated doctor in the event the carrier makes a reasonable assessment of impairment rating. This could leave the question of the employee's permanent whole body impairment unresolved and could adversely affect the employee's benefits

The current rule provides for finality of certifications of MMI and impairment ratings. The commission believes the language in the current rule is appropriate given the statutory provisions at the time the rule was originally adopted in 1991. In particular, the commission's use of a finality provision was important because the commission held that carriers could not suspend TIBs based upon a carrier-selected doctor's certification and rating unless the employee agreed to it or the rating became final. This changed slightly as a result of legislation passed by the 76th Texas Legislature. Now, given the changes made by HB-2600 which substitute designated doctor examinations for RME examinations, and given that designated doctors' opinions regarding MMI and impairment have presumptive weight, the commission believes that the concept of finality is not as essential to the system and proposes its deletion.

Proposed new §130.5 is largely based upon provisions currently contained in §130.6. The commission is proposing splitting §130.6 in two to simplify it. Proposed §130.5 sets out the requirements for requesting a designated doctor; selecting the doctor; scheduling the examination; delivering records to the designated doctor; and disputing the report of the designated doctor. The rule essentially covers everything about the dispute and examination except for the duties of the designated doctor and the employee's duties regarding the examination itself (which are contained in §130.6).

Proposed new §130.5(a) requires the commission to order medical examinations by a designated doctor at the request of the carrier, the injured employee, the injured employee's representative, the commission's Medical Advisor, or a division of the commission and requires requests for designated doctors to be made in the form and manner prescribed by the commission.

Proposed new §130.5(b) provides the conditions under which a designated doctor will be assigned and the issues to be resolved. This rule applies only to questions relating to MMI and impairment.

Proposed new §130.5(c) provides for a certification of MMI and/or impairment to be invalid if it was assigned by a carrier-selected doctor when the carrier was not entitled to such an evaluation, or if it was not obtained in accordance with §126.5, or if it was assigned by a doctor who was not authorized to certify MMI and impairment.

Proposed new §130.5(d) provides the commission's provisions for selecting and scheduling an examination by a designated doctor as specified under new §408.0041. The subsection also lists what information shall be contained on the order. There are differences between the provisions in this rule and the current analogous provisions of §130.6. These differences are primarily driven by HB-2600, which changed the timeframes for ordering an examination and removed the provision that allowed for a designated doctor to be chosen based upon the agreement of the employee and the carrier.

Other differences are due to HB-2600's requirement that the designated doctor selected be experienced in the treatment and procedures used by the doctor treating the employee's medical condition as opposed to the current requirement that the designated doctor be of the same discipline and licensing as the treating doctor.

Another difference is the proposal for a specific timeframe for the treating doctor and carrier to send the employee's medical records to the designated doctor. Current §130.6 does not have a specific timeframe for the records to be forwarded. The current rule merely states that if the designated doctor does not have the records three days prior to the examination, the commission is to be contacted for assistance in obtaining the records. The proposed rule requires that the treating doctor and carrier provide the records to the designated doctor no later than the fifth day after receiving the order and changes the timeframe for requesting commission assistance from three days to five days to provide more time for the commission to intervene.

Provisions of the subsection that govern contact with the designated doctor are essentially the same as contained currently in §130.6.

Proposed new §130.5(e) provides the condition and timeframe for a request of a subsequent designated doctor appointment. The statute provides that such a request is limited to one per 60 days unless that is good cause. Proposed §130.4 can be used to establish good cause although it may not be the only method.

Proposed §130.5(f) provides the procedure for filing a dispute with the commission when either party is not satisfied with the designated doctor's opinion regarding MMI and/or impairment rating.

Proposed Amendments to §130.6 - Designated Doctor: General Provisions (proposed to be re-title as Designated Doctor Examinations for Maximum Medical Improvement and/or Impairment Ratings)

Proposed §130.6 focuses on the duties of the designated doctor and the employee relating to the conduct of the examination itself. Therefore, all provisions of the current rule that address setting up the examination, choosing the doctor, forwarding the records, etc., are proposed to be deleted in this rule and replaced by similar provisions in §130.5, as previously discussed. Therefore, current subsections (a) through (f), (h), and (i) of §130.6 are proposed to be deleted.

Proposed amended §130.6(a) provides an overview section that explains the applicability of the rule and some general provisions relating to presumptive weight. The rule makes it clear that presumptive weight applies only to MMI and impairment, and only to those MMI or impairment issues that are actually in question or dispute. Thus, if the only issue in dispute is impairment, the designated doctor's opinion about MMI is not given presumptive weight. Likewise, other opinions of the designated doctor are not given presumptive weight even if the designated doctor is asked by the commission for an opinion on a matter.

The opinion of the designated doctor is given presumptive weight rather than the report of the doctor. This clarifies that if the designated doctor discovers an error in the report and amends it, the subsequent report is also given. This also allows requests for clarification when a question arises relating to the designated doctor's opinion.

Current §130.6(g) is proposed to be redesignated as §130.6(b).

Proposed new §130.6(c) provides the conditions under which a carrier may suspend TIBs if an employee, without good cause, fails to attend a designated doctor examination. The language is virtually identical to provision in proposed §126.6 (relating to Order for Required Medical Examination), which is proposed elsewhere in this issue of the Texas Register .

Current §130.6(j) is proposed to be redesignated as §130.6(d) and amended to require the designated doctor to address the issues in question and any issues the commission may request the designated doctor to consider. It also requires the designated doctor to provide an estimated date the employee may reach MMI if the issue of MMI was in question and if the designated doctor found the employee not to be at MMI. This estimated date is very important for two reasons. The first is that it helps establish if there would be good cause to return to a designated doctor in less than 60 days. The second reason relates to the fact that for dispute resolution on MMI, the RME examination occurs after the designated doctor's examination. For example, the designated doctor could find that an employee is not at MMI and then the carrier's RME doctor could find MMI a couple of weeks later during the RME. The RME doctor would essentially argue that they agree that the employee had not reached MMI at the time of the designated doctor's examination but that the employee had reached MMI by the time of the RME. By having an estimated MMI date from the designated doctor, the commission will be better able to resolve disputes in this situation.

Another proposed change relates to disputes of MMI when the treating doctor has already certified the employee to be at MMI. Many designated doctors are unwilling to certify an employee to have reached MMI on a date prior to the designated doctor's examination of the employee. This has led to MMI being inappropriately extended in some cases. A certification of MMI requires an evaluation of the prior medical records. From that evaluation, the designated doctor should be able to determine at what point the employee's condition was no longer improving. Although additional training for doctors should improve the accuracy of MMI certifications and alleviate the problem, there may still be doctors who are unwilling to certify the employee to be at MMI prior to a date that doctor actually examined the employee. To help address this situation, the commission proposes requiring the designated doctor to provide an explanation with clinical documentation when the designated doctor finds the employee to have reached MMI on a date later than the date the treating doctor finds the employee to have reached MMI.

Another proposed change has to do with assigning impairment ratings when there are questions about the extent of injury. It is not uncommon for designated doctors to assign impairment ratings when the extent of injury is in dispute. It is also not uncommon for the designated doctor to include additional conditions in the impairment rating that the carrier was not aware of prior to the designated doctor's examination. This has caused problems in the past because the designated doctor's report currently has presumptive weight and the carrier is required to pay all accrued benefits in accordance with the designated doctor's report within five days of receiving the report. In those instances that the designated doctor turns out to have inappropriately extended the injury through the impairment rating, the carrier may overpay benefits to the employee with no recourse for reimbursement. On the other hand, sometimes the rating will not include a condition that is later determined to be part of the compensable injury. In order to get the impairment rating modified to include the additional condition, another examination by the designated doctor would often be needed. During this time, the employee's benefits might be delayed.

The commission proposes that if there does not appear to be consensus on extent of injury (either through an active dispute or an obvious difference between what the medical reports and narratives show), the doctor will rate the impairment both ways so that when the dispute of extent of injury is resolved, there will be no delay in the provision of benefits. The carrier would be required to pay IIBs in accordance with the designated doctor's rating based upon the conditions that the carrier believes are part of the compensable injury (preventing overpayments) and then pay per the other rating if it is later determined that the compensable injury includes the disputed conditions (preventing delays). With the new provisions of HB-2600 that allow the carrier and the treating doctor to provide a narrative that describes their assessment of the employee's condition, designated doctors should have little problem determining if they need to evaluate the employee's condition in multiple ways.

Current §130.6(k) is proposed to be redesignated as §130.6(e).

Current §130.6(l) is proposed to be redesignated as §130.6(f) and language added for clarification of the existing prohibition against a provider assisting a designated doctor if the provider previously examined or treated the employee within the past 12 months (for any condition) or previously examined or treated the employee for the medical condition needing evaluation by a designated doctor.

Another proposed change provides that if the designated doctor chooses to use another health care practitioner to perform range of motion and strength testing required by the AMA Guides, doing so shall not extend the amount of time the designated doctor has to file the report required by the rule. Range of motion and strength training are basic requirements for evaluating impairment resulting from nearly every condition. Treating doctors and RME doctors often utilize other providers to provide such testing but use of other health care providers does not extend the time to file their reports.

The commission also proposes adding language that makes it clear that the designated doctor is ultimately responsible for compliance with the section regardless of whether they choose to have other health care providers assist them. This is not a change from current rules.

Current §130.6(m) is proposed to be redesignated as §130.6(g) and to clarify that (unlike subsection (f)), special testing does extend the amount of time that the designated doctor has to file the report by up to seven working days if the designated doctor needs to refer the employee to another provider to conduct these tests. This testing does not include standard range of motion and strength training. This sort of testing (and thus extensions) is expected to be infrequent.

Current §130.6(n) is proposed to be redesignated as §130.6(h) and current language relating to extension of the reporting timeframe is proposed to be deleted because of its inclusion in subsections (f) and (g).

Proposed new §130.6(i) establishes a date by which a designated doctor must respond to a commission request for clarification. It also considers the designated doctor's response to have presumptive weight as it is part of the doctor's opinion. Under the current rule, there is no specific timeframe for responding to a request for clarification. This can delay resolutions of disputes for months while the commission must re-request clarification, call the doctor's office to ask for the information, or issue orders.

Current §130.6(o) is proposed to be redesignated as §130.6(j). The subsection addresses records that the designated doctor must maintain. Proposed to be added to the required records is documentation of the date the commission was contacted when the carrier or treating doctor have not provided medical records within five days prior to the scheduled date of an examination.

The commission proposes deleting §130.6(p) because it is redundant to provisions in other rules.

Current §130.6(q) is proposed to be redesignated as §130.6(k) and clarified.

It is proposed that all provisions related to reimbursement for the designated doctor examination be deleted. These provisions are redundant of provisions in the current Medical Fee Guidelines (§134.201 of this title) and are unnecessary. Therefore, the commission proposes deleting current subsection (r).

Proposed Amendments to §130.110 - Return to Work Disputes During Supplemental Income Benefits; Designated Doctor

The commission proposes deleting §130.110(n) because it is redundant to provisions in other rules and it references rules that are being amended or deleted.

Brent Hatch, Director of Customer Services, has determined that for the first five-year period the proposed rules are in effect there will not be fiscal implications for state or local governments as a result of enforcing or administering the rules. This legislation and the rules as proposed should reduce the number of disputes the commission must handle, but the commission will also experience increased education and training costs. Local government and state government as a covered regulated entity will be impacted in the same manner as described later in this preamble for person required to comply with the rules as proposed.

Mr. Hatch has evaluated the public benefits and anticipated costs for each year of the first five years the rule as proposed are in effect. The public benefits anticipated as a result of enforcing the rules will be compliance and implementation of legislative directives and consistency in the rules under which all Texas workers' compensation system participants function.

Employees should benefit from having more accurate impairment ratings and fewer disputes due to training and designated doctor qualification requirements, and from attending fewer examinations. Fewer examinations should be the result of limiting who can certify MMI and/or impairment, use of a designated doctor with presumptive weight before an RME, elimination of the requirement to certify MMI and/or impairment for a minor injury, requiring estimated future MMI dates, and requiring multiple ratings by a designated doctor when extent of injury is at issue. The expanded use of designated doctors and the removal of the finality concept for impairment ratings and MMI certification should help ensure employees receive all the benefits they are entitled to - no more and no less. Another expected benefit is the timely resolution of disputes because of designated doctor presumptive weight and clear time deadlines for various actions. Employees should also benefit from clarification of the role of the treating doctor and the fact that treating doctors will get copies of designated doctor reports as this will make it easier for employees to discuss the designated doctor's report with a doctor whom they know and trust. Employees are not expected to experience any costs associated with these rule.

Health care providers (particularly doctors) should benefit from the proposed changes as they clarify existing requirements and streamline processes while providing clear time deadlines. For example, under the current rule, the fact that employees and carriers can agree on designated doctors means that the commission will sometimes schedule an examination with a designated doctor only to have to cancel it because the employee and carrier later agree on a different doctor. Treating doctors should also benefit from fewer disputes and because they will have fewer certifications of MMI and impairment ratings done by other health care providers to evaluate (because of the restrictions on who will be authorized to certify MMI and assign ratings). Doctors may experience increased training costs associated with these rules and the chapter 180 rules proposed concurrently with these rules.

Insurance carriers should benefit in a number of ways. First, the rules are designed to both reduce disputes and to speed up dispute resolution. To the extent that disputes are resolved quicker, it greatly reduces the potential for overpayments. In addition, the training and other rule requirements are expected to help ensure that employees are timely and accurately certified to be at MMI (which should reduce overpayments in TIBs), as well as more accurate impairment ratings (which should reduce disputes). Carriers should see cost reduction based upon fewer disputes and fewer examinations, as discussed above. In addition, the restriction on which doctors are able to evaluate MMI and impairment should reduce the number of such examinations and reduce those costs further. Carriers and employers should benefit from the provisions regarding initiation and continued payment of IIBs based on the carrier's reasonable assessment of impairment. Carriers should also benefit for the additional grounds on which to presume MMI has been reached.

Employers will benefit from reduced system costs and timely returns to work.

There will be no adverse economic impact on small businesses or micro-businesses. There will be no difference in the cost of compliance for small businesses as compared to large businesses because the same basic processes and procedures apply to all entities regardless of size.

Comments on the proposal must be received by 5:00 p.m., October 1, 2001. You may comment via the Internet by accessing the commission's website at http://www.twcc.state.tx.us and then clicking on "Proposed Rules." This medium for commenting will help you organize your comments by rule chapter. You may also comment by emailing your comments to RuleComments@twcc.state.tx.us or mailing or delivering your comments to Nell Cheslock at the Office of the General Counsel, Mailstop #4-D, Texas Workers' Compensation commission, Southfield Building, 4000 South IH-35, Austin, Texas 78704-7491.

Commenters are requested to clearly identify by number the specific rule and paragraph commented upon. The commission may not be able to respond to comments which cannot be linked to a particular proposed rule. Along with your comment, it is suggested that you include the reasoning for the comment in order for commission staff to fully evaluate your recommendations.

Based upon various considerations, including comments received and the staff's or commissioners' review of those comments, or based upon the commissioners' action at the public meeting, the rule as adopted may be revised from the rule as proposed in whole or in part Persons in support of the rule as proposed, in whole or in part, may wish to comment to that effect.

A public hearing on this proposal will be held on October 2, 2001, at the central office of the commission (Southfield Building, 4000 South IH-35, Austin, Texas). Those persons interested in attending the public hearing should contact the commission's Office of Executive Communication at (512) 440-5690 to confirm the date, time, and location of the public hearing for this proposal. The public hearing schedule will also be available on the commission's website at http://www.twcc.state.tx.us

Subchapter A. IMPAIRMENT INCOME BENEFITS

28 TAC §§130.1 - 130.6

§130.1.Certification of Maximum Medical Improvement and Evaluation of Permanent Impairment.

(a) Authorized [ ~~Certifying~~ ] Doctor.

(1) Maximum medical improvement (MMI) shall be [ ~~determined and~~ ] certified and an impairment rating shall be assigned in accordance with this section. Only an authorized [ ~~by a~~ ] doctor [ ~~as defined in section 401.011 (17) of the Texas Workers' Compensation Act~~ ] may certify MMI and assign an impairment rating. To be authorized the doctor must:

(A) be serving as either:

(i) the treating doctor (or a doctor to whom the treating doctor has referred the employee for evaluation of MMI and permanent whole body impairment in the place of the treating doctor);

(ii) a designated doctor; or

(iii) a required medical examination (RME) doctor selected by the carrier and approved by the commission to evaluate MMI and/or permanent whole body impairment after a designated doctor has performed such an evaluation; and

(B) after August 1, 2003, be on the commission's Approved Doctor List with Level 2 or Level 3 Certification (as described in §180.20 and §180.23 of this title (relating to Application for Registration / Commission Approved Doctor List and Commission Required Training for Doctors/Certification Levels, respectively) or have been granted authorization by specific exception from the commission.

(2) Doctors who are not authorized shall not certify MMI or assign impairment ratings and shall not be reimbursed for the examination, certification, or report if one chooses to conduct such an examination and/or make such a certification. A certification of MMI and/or impairment rating assigned by an unauthorized doctor are invalid.

(3) A doctor who is authorized under this subsection to certify MMI and assign an impairment rating and who does either, shall be referred to as the "certifying doctor."

(b) Certification of Maximum Medical Improvement.

(1) Maximum medical improvement (MMI) is:

(A) the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated;

(B) the expiration of 104 weeks from the date on which income benefits begin to accrue; or

(C) the date determined as provided by Texas Labor Code §408.104.

(2) MMI must be certified before an impairment rating is assigned.

(3) Certification of MMI is a finding made by an authorized doctor that an injured employee (employee) has reached MMI as defined in subsection (b)(1) of this section.

(4) To certify MMI the certifying doctor shall:

(A) review medical records;

(B) perform a complete medical examination of the employee for the explicit purpose of determining MMI (certifying examination);

(C) assign a specific date at which MMI was reached.

(i) The date of MMI may not be prospective or conditional.

(ii) The date of MMI may be retrospective to the date of the certifying exam; and

(D) complete and submit required reports and documentation.

(c) Assignment of Impairment Rating.

(1) An impairment rating is the percentage of permanent impairment of the whole body resulting from the current compensable injury. A zero percent impairment may be a valid rating.

(2) A doctor who certifies that an employee has reached MMI shall assign an impairment rating for the current compensable injury using the rating criteria contained in the appropriate edition of the AMA Guides to the Evaluation of Permanent Impairment, published by the American Medical Association (AMA Guides).

(A) The appropriate edition of the AMA Guides to use for all certifying examinations conducted before October 15, 2001 is the third edition, second printing, dated February, 1989.

(B) The appropriate edition of the AMA Guides to use for certifying examinations conducted on or after October 15, 2001 is:

(i) the fourth edition of the AMA Guides (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the AMA prior to May 16, 2000). If a subsequent printing(s) of the fourth edition of the AMA Guides occurs, and it contains no substantive changes from the previous printing, the commission by vote at a public meeting may authorize the use of the subsequent printing(s).; or

(ii) the third edition, second printing, dated February, 1989 if, at the time of the certifying examination, there is a certification of MMI by a doctor pursuant to subsection (b) of this section made prior to October 15, 2001 which has not been previously withdrawn through agreement of the parties or previously overturned by a final decision.

(C) This subsection shall be implemented to ensure that in the event of an impairment rating dispute, only ratings using the appropriate edition of the AMA Guides shall be considered.

(3) Assignment of an impairment rating for the current compensable injury must be based on the employee's medical record and the certifying examination. The doctor assigning the impairment rating shall:

(A) identify objective clinical or laboratory findings of permanent impairment for the current compensable injury;

(B) document specific laboratory or clinical findings of an impairment;

(C) analyze specific clinical and laboratory findings of an impairment;

(D) compare the results of the analysis with the impairment criteria and provide the following:

(i) A description and explanation of specific clinical findings related to each impairment, including zero percent (0%) impairment ratings, and

(ii) A description of how the findings relate to and compare with the criteria described in the applicable chapter of the AMA Guides. The doctor's inability to obtain required measurements must be explained.

(E) assign one whole body impairment rating for the current compensable injury.

(F) be responsible for referring the employee to another doctor or health care provider for testing, or evaluation, if additional medical information is required. The certifying doctor is responsible for incorporating all additional information obtained into the report required by this rule:

(i) Additional information must be documented and incorporated into the impairment rating and acknowledged in the required report.

(ii) If the additional information is not consistent with the clinical findings of the certifying doctor, then the documentation must clearly explain why the information is not being used as part of the impairment rating.

(4) After August 1, 2003, if testing required by the AMA Guides is not performed by the certifying doctor, the testing shall be performed by a health care practitioner, who within the two years prior to the date the employee is evaluated, has had the impairment rating training module required by §180.23 for a doctor with Level 2 or Level 3 Certification. It is the responsibility of the certifying doctor to ensure the requirements of this subsection are complied with.

(5) If an impairment rating is assigned in violation of subsection (c)(4), the rating is invalid and the evaluation and report are not reimbursable. A provider that is paid for an evaluation and/or report that is invalid under this subsection shall refund the payment to the carrier.

(d) Reporting.

(1) Certification of MMI and assignment of an impairment rating for the current compensable injury requires completion, signing, and submission of the Report of Medical Evaluation and a narrative report.

(A) The Report of Medical Evaluation must be signed by the certifying doctor. The certifying doctor may use a rubber stamp signature or an electronic facsimile signature of the certifying doctor's personal signature.

(B) The Report of Medical Evaluation includes an attached narrative report. The narrative report must include the following:

(i) date of the certifying examination;

(ii) date of MMI;

(iii) findings of the certifying examination, including both normal and abnormal findings related to the compensable injury and an explanation of the analysis performed to find whether MMI was reached;

(iv) narrative history of the medical condition that outlines the course of the injury and correlates the injury to the medical treatment;

(v) current clinical status;

(vi) diagnosis and clinical findings of permanent impairment as stated in subsection (c)(3); and

(vii) the edition of the AMA Guides that was used in assigning the impairment rating.

(2) A Report of Medical Evaluation under this rule shall be filed with the commission, employee, employee's representative, and the insurance carrier (carrier) no later than the seventh working day after the later of:

(A) date of the certifying examination; or

(B) the receipt of all of the medical information required by this section.

(3) The report required to be filed under this section shall be filed as follows:

(A) The Report of Medical Evaluation shall be filed with the carrier by facsimile or electronic transmission; and

(B) The Report of Medical Evaluation shall be filed with the commission, the employee and the employee's representative by facsimile or electronic transmission if the doctor has been provided the recipient's facsimile number or email address; otherwise, the report shall be filed by other verifiable means.

(e) Documentation. The certifying doctor shall maintain the original copy of the Report of Medical Evaluation and narrative as well as documentation of:

(1) the date of the examination;

(2) the date any medical records necessary to make the certification of MMI were received, and from whom the medical records were received; and

(3) the date, addressees, and means of delivery that reports required under this section were transmitted or mailed by the certifying doctor.

§130.2.Certification of Maximum Medical Improvement and Evaluation of Permanent Impairment by the Treating Doctor.

(a) A treating doctor shall either examine the injured employee (employee) and certify that the [ an ] employee has reached maximum medical improvement (MMI) and assign an impairment rating, if any, as soon as the doctor anticipates that the employee will have no further material recovery from or lasting improvement to the work-related injury or illness, based on reasonable medical probability or have another authorized doctor do so .

(1) A treating doctor who is not authorized to certify MMI or assign impairment ratings, shall make a referral to a doctor who is authorized to do so on behalf of the treating doctor. Even if the treating doctor is authorized to certify MMI and assign an impairment rating, the doctor may chose to have another authorized doctor evaluate the employee for MMI and impairment in the place of the treating doctor. However, this evaluation shall be considered the report of the treating doctor.

(2) Other than subsections (c) and (d) of this section, nothing in this section requires a treating doctor to schedule an examination if the employee has been released from treatment and is not receiving temporary income benefits (TIBs). For example, when the patient is treated and released without further treatment for a minor injury, the treating doctor is not required to schedule and conduct an examination for MMI and permanent impairment.

(b) A certification of MMI and assignment of [ ~~treating doctor who certifies that the employee has reached maximum medical improvement shall assign~~ ] an impairment rating [ ~~and~~ ] shall be performed and reported in accordance with the requirements of §130.1 of this title (related to Certification of Maximum Medical Improvement and Evaluation of Permanent Impairment). [ : ]

~~[ ~~(1)~~ complete the report required by §130.1 of this title (relating to Reports of Medical Evaluation: Maximum Medical Improvement and Permanent Impairment); and]~~

~~[ ~~(2)~~ send it, no later than 7 days after the examination, to the commission, the employee, or the employee's representative, if any, and the insurance carrier. ]~~

(c) The commission shall mail a notice to a treating doctor on the expiration of 98 weeks from the date the injured employee's temporary income benefits began to accrue if the employee is still receiving temporary income benefits. The commission's notice shall advise the treating doctor of the requirements chapter 408, Subchapter G of the Texas Workers' Compensation Act, [ ~~§ 4.26~~ ] and this rule, and require that an impairment rating report be mailed to the commission no later than 104 weeks from the date temporary income benefits began to accrue.

(d) Upon receipt of the commission's notice required in subsection (c) of this section, the treating doctor shall schedule and conduct an examination of the employee in accordance with §130.1 to certify a MMI date (if earlier than the statutory MMI date) and to assign an impairment rating. A treating doctor who is not authorized to certify MMI and assign impairment ratings, shall make a referral to a doctor who is authorized to do so on behalf of the treating doctor.

(e) If the carrier has not received a report of medical evaluation by the date of statutory MMI, the carrier may suspend TIBs and is not required to initiate impairment income benefits (IIBs) until such time as it receives a report of an impairment rating assigned in accordance with §130.1. A carrier, may however, make a reasonable assessment of what it believes the true impairment rating should be and, if it does so, shall initiate IIBs within five days of making the assessment. The carrier shall continue to pay IIBs until the assessment is paid in full or is superceded by an impairment rating assigned in accordance with §130.1.

§130.3.Certification of Maximum Medical Improvement and Evaluation of Permanent Impairment by a Doctor Other Than the Treating [ ~~or Designated~~ ] Doctor.

(a) A doctor, other than a treating [ ~~or designated~~ ] doctor, who is authorized to certify [ ~~certifies~~ ] that an employee has reached maximum medical improvement (MMI), must do so [ ~~shall complete a medical evaluation report (the report)~~ ] in accordance with §130.1 of this title (relating to Certification of [ ~~Reports of Medical Evaluation:~~ ] Maximum Medical Improvement and Evaluation of Permanent Impairment). In addition to complying with the filing requirements of §130.1, the certifying doctor shall file a copy of the Report of Medical Evaluation and the narrative with the treating doctor within the same timeframes for filing with the other persons that §130.1 requires..

(b) Upon receipt of the report identified in subsection (a) of this section, the treating doctor shall:

(1) indicate on the report either agreement or disagreement with the certification of maximum medical improvement and with the impairment rating assigned by the certifying doctor, and, in the case of a disagreement, explain the reasons for this disagreement; and

(2) within seven days of receipt, send a signed copy of the report indicating agreement or disagreement and including any required explanation to the commission, the employee and the employee's representative (if any), and the carrier.

(c) A treating doctor's agreement or disagreement under subsection (b) of this section does not require a separate examination of the employee prior to the issuance of the opinion and shall not be considered a certification as that term is used in §130.1 of this title.

(d) The reports required under this section to be filed with a doctor and carrier shall be filed by facsimile or electronic transmission. In addition, the doctor shall file the report with the employee and the employee's representative by facsimile or electronic transmission if the doctor has been provided the employer's facsimile number or email address; otherwise, the report shall be sent by other verifiable means.

(e) A doctor required to file a report under this section shall maintain the original copy of the Report of Medical Evaluation and narrative and documentation of the date, addressees, facsimile numbers/email addresses and means of delivery that the reports required under this section were transmitted or mailed including proof of successful transmission. In addition:

(1) a certifying doctor shall maintain documentation of:

(A) The date of the examination of the employee; and

(B) The date any medical records necessary to make the certification of MMI were received, and from whom the medical records were received; and

(2) a treating doctor who receives the certifying doctor's report shall maintain documentation of the date the report was received and the means by which the report was delivered to the treating doctor.

§130.4.Presumption that Maximum Medical Improvement (MMI) has been Reached and Resolution when MMI has not been Certified.

(a) This section does not apply if statutory maximum medical improvement (MMI) has been reached. Statutory MMI is the later of:

(1) the end of the 104th week after [ ~~If 104 weeks have passed since~~ ] the date that temporary income benefits (TIBs) began to accrue ; or ,[ ~~maximum medical improvement has, by definition, been reached and this section does not apply.~~ ]

(2) the date to which MMI was extended by the commission through operation of Texas Labor Code §408.104.

(b) If there has not been a certification in accordance with §130.1 of this title (relating to Certification of Maximum Medical Improvement and Evaluation of Permanent Impairment) [ ~~from a doctor~~ ] that an injured employee has reached MMI [ ~~maximum medical improvement ("MMI")~~ ], an insurance carrier (carrier) may follow the procedure outlined in this section to resolve whether an employee has reached MMI. The carrier shall presume, only for purposes of invoking [ ~~to invoke~~ ] this procedure, that an employee has reached MMI, if:

~~[ ~~(1)~~ the compensable injury is not an occupational disease other than a repetitive trauma injury;]~~

~~[ ~~(2)~~ the treating doctor has examined the employee at least twice for the same compensable injury; ]~~

[ ~~(3)~~ the number of days between the two of the examinations is greater than 60 except for laminectomy, spinal fusion and diskectomy for which the number of days between two of the exams is greater than 90;]

~~[ ~~(4)~~ the two examinations referenced in subsection (b) of this section were held after the date on which temporary income benefits began to accrue; and]~~

[ ~~(5)~~ the treating doctor's medical reports, as filed with the insurance carrier, for all examinations and reports conducted after the first of the two examinations indicate a lack of medical improvement in the employee's condition from the first of the two examinations.]

[ ~~(c)~~

~~The insurance carrier may also follow the procedure outlined in this section if: ]~~

(1) it appears that the employee has failed to attend two or more consecutively scheduled health care appointments and the number of days between the two examinations is greater than 60 except for laminectomy, spinal fusion or diskectomy in which case the number of days between the two examinations is greater than 90;

(2) the treating doctor has examined the employee at least twice for the same compensable injury after the date on which TIBs began to accrue, and the doctor's medical reports as filed with the insurance carrier for all examinations and reports conducted after the first of the two examinations, indicate a lack of medical improvement in the employees condition since the date of the first of the two examinations;

(3) the employee was previously found not to be at MMI by a designated doctor but the employee has reached the date the designated doctor estimated that the employee would reach MMI; or

(4) the employee is four weeks past the point that the commission's work release guideline indicates that the employee should be able to return to work without restriction.

~~[ ~~(d)~~ The insurance carrier shall not suspend temporary income benefits based on this section, unless a benefit review officer issues an interlocutory order granting suspension of benefits.]~~

(c) [ ~~(e) An insurance~~ ] A carrier permitted by subsection (b) of this section to invoke this procedure [ ~~that identifies an apparent lack of medical improvement, as set forth in subsection (b) of this section, or an apparent failure to attend health care appointments by an employee~~ ] may request [ ~~notify~~ ] the treating doctor [ ~~commission in writing, and request that a "Medical Status Request" letter be sent by the commission to the treating doctor~~ ] to provide a report on the employee's medical status as it relates to MMI.

[ ~~(f)~~ A medical evaluation report form, described under §130.1 of this title (relating to Reports of Medical Evaluation: Maximum Medical Improvement and Permanent Impairment), shall be provided by the commission, no later than 5 days from the insurance carrier's request, along with the medical status request letter. The letter shall notify the doctor of the requirements of the Texas Workers' Compensation Act (the Act), §1.03(32). In addition, the letter shall request the treating doctor to answer the following questions:]

~~[ ~~(1)~~ whether the employee has reached maximum medical improvement; and ]~~

~~[ ~~(2)~~ whether the employee has failed to attend two or more consecutively scheduled health care appointments, and the dates of the missed appointments.]~~

(d) [ ~~(g)~~ ] The treating doctor shall evaluate the employee's condition within 14 days of receiving the request from the carrier under subsection (c) of this section. The evaluation shall be conducted in accordance with [ ~~complete and file the medical evaluation report as required by~~ ] §130.1 of this title and the report filed within seven working days of the date of the examination. [ ~~(relating to Reports of Medical Evaluation: Maximum Medical Improvement and Permanent Impairment), no later than seven days after receiving the request from the commission~~ ]. If the treating doctor is not authorized to evaluate MMI or impairment, the doctor shall refer the employee to a doctor who is so authorized and this doctor shall comply with the requirements of this section, §130.1 and §130.3 of this title (relating to Certification of Maximum Medical Improvement and Evaluation of Permanent Impairment and Certification of Maximum Medical Improvement by Doctor Other Than Treating Doctor).

(e) [ ~~(h)~~ ] If the treating doctor fails to respond as required by this rule, or if the treating doctor certifies that the employee has not reached MMI, the carrier may request a designated doctor under §130.5 (relating to Entitlement and Procedure for Requesting Designated Doctor Medical Examination) [ ~~benefit review conference, on the ground of the apparent lack of improvement in medical conditions or failure to attend health care appointments.~~ ]

~~[ ~~(i)~~ The insurance carrier shall include with its request for a benefit review conference the following:]~~

[ ~~(1)~~ a request for a required medical examination as provided under the Act, §4.16, §126.5 of this title (relating to Procedure for Requesting Required Medical Examinations) and §126.6 of this title (relating to Order for Required Medical Examinations) apply, except that the employee may not reschedule the examination except for an exceptional circumstance. The rescheduled appointment shall be within 72 hours of the originally scheduled appointment; or ]

[ ~~(2)~~ a request for a designated doctor to be appointed by the commission if an agreement with the employee is not reached. The request shall indicate whether or not an agreement has been reached with the employee for selection of the designated doctor. Section 130.6 of this title (relating to Designated Doctor: General Provisions) shall apply, except that the examination by the designated doctor shall be held no later than 14 days after the doctor is agreed to by the parties or appointed by the commission, whichever is earlier. The employee may not reschedule the examination, except for an exceptional circumstance. The rescheduled appointment shall be within 72 hours of the originally scheduled appointment. ]

~~[ ~~(3)~~ For purposes of rescheduling an appointment, an "exceptional circumstance" includes, but is not limited to, a death in the employee's immediate family.]~~

~~[ ~~(j)~~ An agreement on a designated doctor to resolve a dispute over MMI under this section shall also include an agreement on the same doctor for assigning an impairment rating, if any.]~~

[ ~~(k)~~ The commission shall order the requested required medical examination under the Act, §4.16, or direct an examination by a designated doctor, concurrent with the scheduling of an expedited benefit review conference, if appropriate, as provided by §141.4 of this title relating to Requesting and Setting a Benefits Review Conference.]

~~[ ~~(l)~~ The benefit review conference may be canceled by the commission, without prejudice, if:]~~

~~[(1) the examining doctor ordered under subsection (i) of this section certifies that the employee has not reached MMI; or]~~

[(2) by agreement of the parties, when a designated doctor certifies that an employee has reached MMI, in which case the designated doctor shall assign an impairment rating, if any, and complete the medical evaluation report pursuant to §130.1 of this title (relating to Reports of Medical Evaluation: Maximum Medical Improvement and Permanent Impairment). The carrier shall pay benefits based on the report of the designated doctor.]

[(m) If a benefit review conference is held, and there is no signed settlement or agreement on the dispute on MMI, the benefit review officer shall presume that the finding of a designated doctor is correct, unless there is information, statements, or medical reports that clearly and convincingly rebut a determination of MMI. If a doctor ordered pursuant to §4.16 finds that MMI has been reached, and this finding is disputed, the benefit review officer shall direct an examination by a designated doctor.]

[(n) The benefit review officer shall enter an interlocutory order directing the insurance carrier to suspend temporary income benefits, and begin payment of impairment income benefits, if any, if the benefits review officer's recommendations state that:]

~~[(1) the determination of the designated doctor has not been clearly and convincingly rebutted by information, statement, or medical reports; or ]~~

[(2) there has been a lack of improvement in the employee's medical condition, the certification of MMI by the doctor requested under §4.16 is disputed, and a designated doctor is directed to resolve the dispute; or]

~~[(3) the employee has missed two or more consecutively scheduled health care appointments or has otherwise abandoned treatment without good cause.]~~

§130.5.Entitlement and Procedure for Requesting Designated Doctor Examinations related to Maximum Medical Improvement and Impairment Rating.

(a) The commission shall order a medical examination by a designated doctor at the request of the insurance carrier (carrier), an injured employee, the injured employee's representative (if any), the Medical Advisor, or a division of the commission. The request shall be made in the form and manner prescribed by the commission.

(b) This section shall be used to resolve questions about:

(1) a certification of maximum medical improvement (MMI) and/or an impairment rating (rating) assigned under §130.1 of this section (relating to Certification of Maximum Medical Improvement and Evaluation of Permanent Impairment); and

(2) the treating doctor's failure to certify the employee to have reached MMI under §130.4 (relating to Presumption that Maximum Medical Improvement has been Reached and Resolution when MMI has not been Certified).

(c) A certification of MMI and/or impairment rating assigned by a doctor selected by a carrier when the carrier was not entitled such an evaluation, or otherwise assigned in violation of §126.5 of this title (relating to Entitlement to and Procedure for Requesting Required Medical Examinations), or assigned by a doctor who is not authorized to certify MMI or evaluate permanent whole body impairment, is invalid and this section does not apply.

(d) The following provisions apply to selection and scheduling of an examination by a designated doctor:

(1) The commission, within 10 days of receipt of a valid request, shall issue a written order assigning a designated doctor; set up a designated doctor appointment for a date no earlier than 14 days, but no later than 21 days from the date of the commission order; and notify the employee and the carrier that the designated doctor will be directed to examine the employee. The commission's written order shall also:

(A) indicate the designated doctor's name, license number, practice address and telephone number, and the date and time of the examination;

(B) explain the purpose of the designated doctor examination and that the designated doctor's report has presumptive weight with respect to MMI and/or impairment as specified in the Texas Labor Code, §§408.0041, 408.122, and 408.125;

(C) order the employee to be examined by the designated doctor on the stated date and time; and

(D) require the treating doctor and carrier to forward all medical records in compliance with subsection (d)(3) of this section.

(2) The commission shall select the next available doctor on the commission's Designated Doctor List who:

(A) has not previously treated or examined the employee within the past 12 months and has not examined or treated the employee with regard to a medical condition being evaluated in the designated doctor examination;

(B) does not have any disqualifying associations as specified in §180.21 of this title (relating to Designated Doctor List); and

(C) is trained and experienced with the treatment and procedures used by the doctor treating the patient's medical condition, and the treatment and procedures performed must be within the scope of practice of the designated doctor.

(3) The designated doctor is authorized to receive the employee's confidential medical records to assist in the resolution of a dispute under this section without a signed release from the employee.

(A) Not later than the fifth day after the day the treating doctor and carrier receive the order, they shall provide to the designated doctor copies of all the employee's medical records in their possession relating to the medical condition to be evaluated by the designated doctor.

(B) The treating doctor and carrier may also send the designated doctor an analysis of the employee's medical condition, functional abilities, and return-to-work opportunities.

(C) If the designated doctor has not received the medical records at least five days prior to the examination, the doctor shall notify the commission's office that scheduled the examination. The appropriate commission staff may send an order to the treating doctor and/or carrier for the delivery of medical records to the designated doctor.

(4) To avoid undue influence on the designated doctor:

(A) only the employee or appropriate commission staff may communicate with the designated doctor about the case regarding the employee's medical condition or history prior to the examination of the employee by the designated doctor;

(B) after the examination is completed, communication with the designated doctor regarding the employee's medical condition or history may be made only through appropriate commission staff (an ombudsman is not considered appropriate staff to contact the designated doctor and should communicate with a designated doctor only through appropriate commission staff); and

(C) the designated doctor may initiate communication with any doctor who has previously treated or examined the employee for the work-related injury.

(e) The carrier is not entitled to request a subsequent designated doctor appointment relating to MMI if the designated doctor previously found the employee to have not reached MMI, until the earliest of:

(1) the 60th day after the prior designated doctor examination was held; or

(2) the date the carrier is found by the commission to have good cause such as because "the employee reached the date the designated doctor estimated the employee would reach MMI."

(f) If either party wishes to dispute the report of the designated doctor, the party shall file the dispute with the commission,

(1) If the carrier is not satisfied with the opinion rendered by a designated doctor under this section, the carrier may request the commission to order an employee to attend an examination by a doctor selected by the carrier in accordance with §126.5.

(2) Either party may ask the commission to contact the designated doctor to answer specific questions provided by the requestor regarding the designated doctor's opinion.

(3) The commission shall resolve a dispute of the opinion of a designated doctor through the dispute resolution processes outlined in chapters 140 through 147 of this title.

§130.6.Designated Doctor Examinations for Maximum Medical Improvement and/or Impairment Ratings [ ~~: General Provisions.~~ ]

(a) A designated doctor examination for maximum medical improvement (MMI) and/or permanent whole body impairment shall be conducted in accordance with this section.

(1) Any evaluation relating to either MMI, an impairment rating or both shall be conducted in accordance with §130.1 of this section (relating to Certification of Maximum Medical Improvement and Evaluation of Permanent Impairment).

(2) The opinion of the designated doctor is given presumptive weight regarding MMI and impairment but only on the issue(s) in question or dispute. If the report contains the doctor's opinion regarding other issues (even those the commission has requested the doctor to consider), that portion of the opinion does not have presumptive weight. [ If the commission receives a notice from the employee or the insurance carrier that disputes maximum medical improvement; an assigned impairment rating ; or maximum medical improvement and an assigned impairment rating, the commission shall issue a written order assigning a designated doctor, setting up a designated doctor appointment for a date no earlier than 14 days from the date of the commission order and no later than 24 days from the date of the commission order, and notifying the employee and the insurance carrier that the designated doctor will be directed to examine the employee. The commission's written order shall also: ]

~~[ ~~(1)~~ contain the designated doctor's name, license number, practice address and telephone number, and the date and time of the examination;]~~

~~[ ~~(2)~~ explain that the injured employee may agree with the carrier on a different designated doctor and notify the commission of the agreement as described in subsection (e) of this section;]~~

~~[ ~~(3)~~ state that there is a dispute and that the Texas Labor Code, §408.125 requires the commission to adopt the impairment rating made by a mutually agreed upon designated doctor; ]~~

[ ~~(4)~~ explain when the designated doctor's report has presumptive weight with respect to maximum medical improvement and/or impairment ratings as specified in the Texas Labor Code, §408.122 and §408.125;]

[ ~~(5)~~ notify an unrepresented employee that commission staff are available to explain the contents of an agreement for a designated doctor and the possible effects of such an agreement on future benefits;]

~~[ ~~(6)~~ order the employee to be examined by the designated doctor on the stated date and time, unless the commission is timely notified of an agreement; and]~~

~~[ ~~(7)~~ require the treating doctor and insurance carrier to forward all medical records in compliance with subsection (h) of this section.]~~

~~[ ~~(b)~~ In order to be a designated doctor for a dispute, the doctor shall:]~~

~~[ ~~(1)~~ be on the Designated Doctor List as described in §126.10 of this title (relating to commission Approved List of Designated Doctors);]~~

~~[ ~~(2)~~ not have previously treated or examined the employee within the past 12 months or with regard to the medical condition being evaluated by the designated doctor;]~~

~~[ ~~(3)~~ not have any disqualifying association as specified in §126.10(a) of this title (relating to commission Approved List of Designated Doctors); and]~~

~~[ ~~(4)~~ to the extent possible, be in the same discipline and licensed by the same board of examiners as the employee's doctor of choice].~~

[ ~~(c)~~ After sending the order to the employee and the insurance carrier as specified in subsection (a) of this section, the commission shall allow the employee and insurance carrier to agree on a designated doctor. If at the end of the tenth day from the date of the order, the commission has not received notification from the insurance carrier or injured employee that a designated doctor has been agreed upon, the commission will presume that an agreement is not possible and the employee is required to attend the commission-selected designated doctor examination as specified in subsection (a) of this section. ]

[ ~~(d)~~ If the employee and the insurance carrier agree on a designated doctor, the insurance carrier shall schedule an appointment for the designated doctor to examine the employee on a date no earlier than 14 days from the date of the commission order described in subsection (a) of this section and no later than 24 days from the date of the commission order. ]

[ ~~(e)~~ The carrier shall notify the commission field office within 10 days of the date of the commission's order as described in subsection (a) when an agreement with the injured employee on the selection of a designated doctor is made. The notice shall include:]

~~[ ~~(1)~~ the commission's claim file number;]~~

~~[ ~~(2)~~ the employee's name, address, and social security number, and if known, the employee's telephone number;]~~

~~[ ~~(3)~~ the date of the injury; and]~~

~~[ ~~(4)~~ the designated doctor's name, license number, practice address and telephone number, and the time and date of the examination.]~~

[ ~~(f)~~ Upon timely receipt of the notification from the insurance carrier that the injured employee and the carrier have agreed on a designated doctor, the commission shall contact the employee to confirm the agreement. Upon confirmation by the employee, the commission shall send to the carrier, designated doctor and the injured employee an order confirming the agreement, canceling the commission-selected designated doctor appointment, and directing the employee to be examined by the agreed-upon doctor. The order shall remind the parties of the requirements in the Texas Labor Code, §408.122 and §408.125 as specified in subsection (a) of this section and require the treating doctor and insurance carrier to forward medical records in compliance with subsection (h) of this section. The order will supersede the initial order identifying a commission-selected designated doctor. If the commission cannot confirm the agreement with the employee, the commission will presume that an agreement was not made and the initial order directing the employee to be examined by a designated doctor selected by the commission shall remain in effect.]

(b) [ ~~(g)~~ ] The designated doctor and the injured employee (employee) shall contact each other if there exists a scheduling conflict for the designated doctor appointment. The designated doctor or the [ ~~injured~~ ] employee who has the scheduling conflict must make the contact at least 24 hours prior to the appointment. The 24 hour requirement will be waived in an emergency situation (such as a death in the immediate family or a medical emergency). The rescheduled examination shall be set for a date within seven days of the originally scheduled examination unless an extension is granted by the commission's field office. Within 24 hours of rescheduling, the designated doctor shall contact the commission's field office and the insurance carrier (carrier) with the time and date of the rescheduled examination.

(c) A carrier may suspend temporary income benefits (TIBs) if an employee, without good cause, fails to attend a designated doctor examination.

(1) In the absence of a finding by the commission to the contrary, a carrier may presume that the employee did not have good cause to fail to attend the examination if:

(A) by the day the examination was originally scheduled to occur the employee has both:

(i) failed to submit to the examination; and

(ii) failed to contact the designated doctor's office to reschedule the examination to occur no later than the later of the seventh day after the originally scheduled examination date or the doctor's first available appointment date; or

(B) after rescheduling the examination as provided in subsection (c)(1)(A)(ii) of this section, the employee failed to submit to the rescheduled examination.

(2) If, after the carrier suspends TIBs pursuant to this section, the employee submits to the designated doctor examination, the carrier shall reinitiate TIBs as of the date the employee submitted to the examination unless the report of the designated doctor indicates that the employee has reached MMI. The re-initiation of TIBs shall occur no later than the seventh day following the latter of:

(A) the date the carrier was notified that the employee had attended the examination; or

(B) the date that the carrier was notified that the commission found that the employee had good cause for failure to attend the examination.

(3) An employee is not entitled to TIBs for a period during which the carrier suspended benefits pursuant to this section unless the employee later submits to the examination and the commission finds or the carrier determines that the employee had good cause for failure to attend the examination.

[ ~~(h)~~ The treating doctor and insurance carrier are both responsible for sending to the designated doctor all the employee's medical records relating to the medical condition to be evaluated by the designated doctor that are in their possession without a signed release from the employee. The designated doctor is authorized to receive the employee's confidential medical records to assist in the resolution of maximum medical improvement and impairment rating disputes. The medical records must not contain any marks, highlights, or other alterations placed on such records for the purpose of communicating with or influencing the designated doctor. The medical records must be received by the designated doctor at least three days prior to the date of the appointment as specified in the commission order. If the medical records are marked, highlighted, altered, or unrelated to the medical condition to be evaluated by the designated doctor, the designated doctor shall notify the commission and report the noncompliance of the treating doctor and/or insurance carrier. Noncompliance with this subsection is a Class C administrative violation under the Texas Labor Code §408.125 and may be subject to an administrative penalty not to exceed $1000. If the designated doctor has not received the medical records at least three days prior to the examination, the designated doctor's office shall notify the commission at the appropriate field office and the appropriate commission staff will send an order to the treating doctor and/or insurance carrier for the delivery of medical records.]

[ ~~(i)~~ To avoid undue influence on a person selected as a designated doctor under the Texas Labor Code, §408.125, only the employee or an appropriate member of the staff of the commission may communicate with the designated doctor about the case regarding the employee's medical condition or history prior to the examination of the employee by the designated doctor. After that examination is completed, communication with the designated doctor regarding the employee's medical condition or history may be made only through appropriate commission staff members. An ombudsman is not considered appropriate staff to contact the designated doctor and should communicate with a designated doctor only through appropriate commission personnel. The designated doctor may initiate communication with any doctor who has previously treated or examined the employee for the work-related injury. Noncompliance with this section is a Class C administrative violation under the Texas Labor Code, §408.125 and may be subject to an administrative penalty not to exceed $1000.]

(d) [ ~~(j)~~ ] The designated doctor shall address the issue(s) in question [ ~~dispute~~ ] and any issues the commission may request the designated doctor to consider and confine the report as described in subsection (h) [ ~~(n)~~ ] of this section to only those issues.

(1) When the there has been no prior certification of MMI, the designated doctor shall evaluate the employee for MMI, and if the doctor finds that the employee reached MMI, assign an impairment rating. If the designated doctor finds that the employee has not reached MMI, the doctor shall estimate the date that the employee will reach MMI.

(2) When there has been a prior certification of MMI and impairment rating and only the MMI date is in question, the designated doctor shall evaluate the date the employee reached MMI and shall not assign an impairment rating. If the certification of MMI in question was the treating doctor's certification and the designated doctor finds that the employee either was not at MMI or reached MMI on a date later than the treating doctor, the designated doctor shall provide an explanation with clinical documentation to support why the employee had not reached MMI as of the date certified by the treating doctor.

(3) When the impairment rating (rating) is the only issue in question [ ~~dispute~~ ], the doctor shall assign [ ~~assess~~ ] an impairment rating without regard to the MMI date [ ~~maximum medical improvement~~ ].

(4) When MMI [ ~~maximum medical improvement~~ ] and permanent whole body impairment [ ~~rating~~ ] are in question [ ~~dispute~~ ] and the designated doctor determines that the employee has not reached MMI, the designated doctor shall not assign an impairment rating. Otherwise, the doctor shall certify MMI and assign an impairment rating.

(5) When the extent of the injury may not be agreed upon by the parties (based upon documentation provided by the treating doctor and/or carrier or the comments of the employee regarding his/her injury), the designated doctor shall provide multiple ratings that take into account the various interpretations of the extent of the injury so that when the commission resolves the dispute, there is already an applicable certification of MMI and rating from which to pay benefits as required by the statute. [ An evaluation or certification under the Guides to the Evaluation of Permanent Impairment published by the American Medical Association (appropriate AMA Guides) as required in §130.1, shall include a pysical physical examination and evaluation by the designated doctor. Although any doctor or any other provider who has successfully completed the training outlined in §126.10(b)(2) of this title (relating to commission Approved List of Designated Doctors) may compare the clinical findings on a particular patient with the criteria in the AMA Guides, the designated doctor shall conduct a physical evaluation and is responsible for the integrity of the evaluation process. This means the designated doctor must evaluate the complete clinical and non-clinical history of the medical condition(s), perform an examination of the employee, analyze the medical history with the clinical and laboratory findings and assess and certify an impairment rating according to the AMA Guides as required in §130.1. ]

(e) [ ~~(k)~~ ] When performing range of motion testing, if the AMA Guides specifies that additional testing be performed because of consistency requirements, the designated doctor shall reschedule testing within seven days of the first testing unless there is no clinical basis for retesting and then the designated doctor must document this in the narrative notes with the clinical explanation for not recommending re-examination.

(f) [ ~~(l)~~ ] Range of motion, sensory, and strength testing should be performed by the designated doctor, when applicable. If this testing is not performed by the designated doctor, the health care provider performing the testing must have successfully completed commission-approved training , [ ~~as outlined in §126.10(b)(2) in the proper use of the appropriate AMA Guides,~~ ] must not have previously treated or examined the employee within the past 12 months, [ or ] and must not have not examined or treated the employee with regard to the medical condition being evaluated by the designated doctor[ ~~, and must complete testing within seven days of the designated doctor's physical examination of the employee~~ ]. Use of another health care provider to perform testing under this subsection shall not extend the amount of time the designated doctor has to file the report and the designated doctor is responsible for ensuring that the requirements of this chapter are complied with.

(g) [ ~~(m)~~ ] For testing other than that listed in subsection (f) [ ~~(l)~~ ] of this section, the designated doctor may perform additional testing or refer employees to other health care providers when deemed necessary to assess an impairment rating. Any additional testing required [ ~~by the appropriate AMA Guides~~ ] for the evaluation and rating , [ ~~assignment of the impairment rating~~ ] is not subject to preauthorization requirements in accordance with the Texas Labor Code, §413.014 (relating to Preauthorization) and additional testing must be completed within seven days of the designated doctor's physical examination of the employee. Use of another health care provider to perform testing under this subsection can extend the amount of time the designated doctor has to file the report by seven working days.

(h) [ ~~(n)~~ ] The designated doctor shall complete and file a Report of Medical Evaluation [ ~~the medical evaluation report~~ ] in accordance with §130.1 [ of this title (relating to Reports of Medical Evaluation: Maximum Medical Improvement and Permanent Impairment) unless testing must be rescheduled or the employee is referred to another health care provider as specified in subsections (k) - (m) of this section, the medical evaluation report shall be completed and filed within seven days of the rescheduled testing or referral appointment date ].

(i) The designated doctor shall respond to any commission requests for clarification not later than the fifth working day after the date on which the doctor receives the commission's request. The doctor's response is considered to have presumptive weight as it is part of the doctor's opinion.

(j) [ ~~(o)~~ ] The designated doctor shall maintain accurate records to reflect:

(1) the date and time of any designated doctor appointments scheduled with employees;

(2) the circumstances regarding a cancellation, no-show or other situation where the examination did not occur as initially scheduled or rescheduled;

(3) the date of the examination;

(4) the date medical records were received from the treating doctor or any other person or organization;

(5) the date the medical evaluation report was submitted to all parties in accordance with §130.1 of this title (relating to Reports of Medical Evaluation: Maximum Medical Improvement and Permanent Impairment); and

(6) the name of all referral health care providers, date of appointments and reason for referral by the designated doctor.

(7) the date the doctor contacted TWCC for assistance in obtaining medical records from the carrier or treating doctor.

~~[ ~~(p)~~ The commission may: ]~~

~~[(1) issue an order requiring timely submission of medical evaluation reports or narrative reports;]~~

~~[ ~~(2)~~ assess administrative violations;]~~

~~[ ~~(3)~~ issue an order for refund to the insurance carrier of the examination payment if an improper or incomplete examination is performed or improper or incomplete report is submitted;]~~

~~[ ~~(4)~~ take action to remove a doctor from the Designated Doctor List as described in accordance with §126.10 of this title (relating to commission Approved List of Designated Doctors); and/or]~~

~~[(5) take action to remove a doctor from the Approved Doctor List in accordance with §126.8 of this title (relating to commission Approved Doctor List). ]~~

(k) [ ~~(q)~~ ] The insurance carrier shall pay any accrued income benefits, and shall begin or continue to pay weekly income benefits, in accordance with the designated doctor's report for the issue(s) in dispute, no later than five days after receipt of the report or five days after receipt of an order by the commission, whichever is earlier.

[ ~~(r)~~ The designated doctor billing and reimbursement will be as established in this subsection until the designated doctor reimbursement is specifically addressed by the Medical Fee Guideline. At such time, the Medical Fee Guideline will supersede this subsection. ]

[ ~~(1)~~ The insurance carrier is responsible for paying the reasonable cost of a designated doctor examination as set forth in the fee structure of this subsection. In addition, the carrier shall pay for the reasonable travel expenses for an injured employee to attend a designated doctor appointment.]

~~[ ~~(2)~~ The reimbursement for determination of maximum medical improvement and/or impairment ratings shall be inclusive of]:~~

~~[ ~~(A)~~ the examination;]~~

~~[ ~~(B)~~ consultation with the employee;]~~

~~[ ~~(C)~~ review of records and films;]~~

~~[ ~~(D)~~ the preparation and submission of reports, calculation tables, figures, and worksheets;]~~

~~[ ~~(E)~~ range of motion, strength, and sensory testing and measurements; and]~~

~~[ ~~(F)~~ other tests used to validate the impairment rating].~~

[ ~~(3)~~ Regardless of the maximum allowable reimbursement specified in this subsection, the designated doctor's charge for services should correlate with the actual time and level of service involved with each patient and reimbursement from the carrier shall be the lesser of the charge amount or the fees set forth as follows.]

~~[ ~~(A)~~ Total reimbursement is equal to the base reimbursement plus the area(s) rated. ]~~

[ ~~(B)~~ The base reimbursement is inclusive of the physical examination, patient consultation and education, detailed narrative report, and factors affecting the service as a designated doctor such as ensuring availability of appointments, timeliness of reports, and responding to the need for further clarification, explanation or reconsideration. Length of time elapsed from date of injury will indicate the base reimbursement as follows.]

~~[ ~~(i)~~ Greater than or equal to two years is reimbursed at $400 and indicated by using modifier L1 on the billing form.]~~

~~[ ~~(ii)~~ Greater than or equal to one year and less than two years is reimbursed at $300 and indicated by using modifier L2 on the billing form.]~~

~~[ ~~(iii)~~ Less than one year is reimbursed at $200 and indicated by using modifier L3 on the billing form.]~~

~~[ ~~(C)~~ Areas that can be reimbursed when rated include body areas and specialty areas as follows.]~~

[ ~~(i)~~ The reimbursement for body areas that must be rated because of the compensable injury is inclusive of testing, records reviewed, impairment rating calculations, and documentation. The designated doctor may bill for a maximum of three body areas, defined as the Spine and Pelvis; Upper Extremities and Hands; and, Lower Extremities. The reimbursement for one body area is $300 and each additional body area is $150. ]

[ ~~(ii)~~ The reimbursement for specialty areas that must be rated where referred testing is required such as psychological, audiologic and/or ophthalmologic testing, is $50 for incorporating one or more specialists' report information into the final impairment rating. This reimbursement will only be allowed once per examination. The referred specialist will be reimbursed separately from the fees outlined in this rule.]

~~[ ~~(D)~~ The designated doctor must indicate the number of areas rated in the units column on the billing form with the maximum being four units/areas.]~~

[ ~~(E)~~ When the outcome of the evaluation is that maximum medical improvement has not been reached, the designated doctor shall receive the base reimbursement as outlined in subparagraph (B) of this paragraph. No additional reimbursement will be allowed.]

~~[ ~~(F)~~ If the employee fails to attend the examination or cancels the commission-ordered examination within 24 hours of the appointment, reimbursement shall be $100.]~~

[ ~~(4)~~ If testing is performed by a health care provider other than the designated doctor as specified in subsection (l) of this section, each health care provider must bill for their respective services using the code and modifiers as prescribed by the commission. If the technical and professional components of the impairment rating are billed separately, reimbursement will be made at 20% for the technical and 80% for the professional of the total reimbursement as outlined in paragraph (3)(A) of this subsection. When the designated doctor performs all components of the service without any referred testing, the designated doctor shall bill using the code as prescribed by the commission with modifier -WP for the whole procedure].

[ ~~(5)~~ Additional testing or referrals specified in subsection (m) of this section will be reimbursed in addition to the fees specified in paragraph (3)(A)-(C) of this subsection if the additional testing was required to perform the assignment of impairment rating and/or determination of maximum medical improvement. These services should be billed using the appropriate CPT code as specified in the Medical Fee Guideline.]

[ ~~(6)~~ A carrier's timeframe for reimbursement to the designated doctor does not begin until a complete medical evaluation report with required attachments has been received by the insurance carrier.]

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on August 20, 2001.

TRD-200104895

Susan Cory

General Counsel

Texas Workers' Compensation Commission

Earliest possible date of adoption: September 30, 2001

For further information, please call: (512) 804-4287

28 TAC §130.5
(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Workers' Compensation Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal is proposed under the Texas Labor Code, §401.011 which contains definitions used in the Texas Workers' Compensation Act; the Texas Labor Code, §401.024, which provides the commission the authority to require use of facsimile or other electronic means to transmit information in the system; the 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 and manner and procedure for transmission of information to the commission; the Texas Labor Code, §402.061, which authorizes the commission to adopt rules necessary to administer the Act; the Texas Labor Code, §406.010, which authorizes the commission to adopt rules regarding claims service; the Texas Labor Code, §408.004, as amended by the 77th Texas Legislature, which provides for Required Medical Examinations; Texas Labor Code §408.0041, as adopted by the 77th Texas Legislature, which provides for the commission assignment of a designated doctor; the Texas Labor Code §408.023, as amended by the 77th Texas Legislature, which requires the commission to develop a list of approved doctors and lay out the requirements for being on the list; the Texas Labor Code §408.0231, which provides the commission with the responsibility for maintenance of the list, the Texas Labor Code, §408,025, which requires the commission to specify by rule what reports a health care provider is required to file; the Texas Labor Code, §408.102, which provides that temporary income benefits continue until the injured employee reaches maximum medical improvement; the Texas Labor Code, §408.122, as amended by the 77th Texas Legislature, which requires that designated doctors meet specific qualifications; the Texas Labor Code §408.123, which requires a doctor certifying maximum medical improvement to file a report and which requires a certification of MMI and assignment of an impairment rating by a doctor other than the treating doctor be sent to the treating doctor who must indicate either agreement or disagreement with the certification of the evaluation; the Texas Labor Code, §408.124, which provides the commission the authority to by rule adopt the fourth edition of the Guides to the Evaluation of Permanent Impairment " published by the American Medical Association to determine the existence and degree of an injured employee's impairment; the Texas Labor Code, §408.125, as amended by the 77th Texas Legislature, which provides the process for disputing impairment ratings; the Texas Labor Code §408.151, which provides for required medical examinations for supplemental income benefits; and the Texas Labor Code §415.0035, as passed by the 77th Texas Legislature, which establishes administrative violations for repeated administrative violations or for a provider failing to submit required medical reports.

No other statutes are affected by the proposed repeal.
§130.5.Impairment Rating Disputes.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 20, 2001.
TRD-200104896

Susan Cory

General Counsel

Texas Workers' Compensation Commission

Earliest possible date of adoption: September 30, 2001

For further information, please call: (512) 804-4287

Subchapter B. SUPPLEMENTAL INCOME BENEFITS

28 TAC §130.110

The amendment is proposed under the Texas Labor Code, §401.011 which contains definitions used in the Texas Workers' Compensation Act; the Texas Labor Code, §401.024, which provides the commission the authority to require use of facsimile or other electronic means to transmit information in the system; the 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 and manner and procedure for transmission of information to the commission; the Texas Labor Code, §402.061, which authorizes the commission to adopt rules necessary to administer the Act; the Texas Labor Code, §406.010, which authorizes the commission to adopt rules regarding claims service; the Texas Labor Code, §408.004, as amended by the 77th Texas Legislature, which provides for Required Medical Examinations; Texas Labor Code §408.0041, as adopted by the 77th Texas Legislature, which provides for the commission assignment of a designated doctor; the Texas Labor Code §408.023, as amended by the 77th Texas Legislature, which requires the commission to develop a list of approved doctors and lay out the requirements for being on the list; the Texas Labor Code §408.0231, which provides the commission with the responsibility for maintenance of the list, the Texas Labor Code, §408,025, which requires the commission to specify by rule what reports a health care provider is required to file; the Texas Labor Code, §408.102, which provides that temporary income benefits continue until the injured employee reaches maximum medical improvement; the Texas Labor Code, §408.122, as amended by the 77th Texas Legislature, which requires that designated doctors meet specific qualifications; the Texas Labor Code §408.123, which requires a doctor certifying maximum medical improvement to file a report and which requires a certification of MMI and assignment of an impairment rating by a doctor other than the treating doctor be sent to the treating doctor who must indicate either agreement or disagreement with the certification of the evaluation; the Texas Labor Code, §408.124, which provides the commission the authority to by rule adopt the fourth edition of the Guides to the Evaluation of Permanent Impairment " published by the American Medical Association to determine the existence and degree of an injured employee's impairment; the Texas Labor Code, §408.125, as amended by the 77th Texas Legislature, which provides the process for disputing impairment ratings; the Texas Labor Code §408.151, which provides for required medical examinations for supplemental income benefits; and the Texas Labor Code §415.0035, as passed by the 77th Texas Legislature, which establishes administrative violations for repeated administrative violations or for a provider failing to submit required medical reports.

No other statutes are affected by the proposed amendment.
§130.110.Return to Work Disputes During Supplemental Income Benefits; Designated Doctor

(a) This section only applies to disputes regarding whether an injured employee whose medical condition prevented the injured employee from returning to work in the prior year has improved sufficiently to allow the injured employee to return to work on or after the second anniversary of the injured employee's initial entitlement to supplemental income benefits (SIBs). Upon request by the injured employee or insurance carrier, or upon its own motion, the commission shall appoint a designated doctor to resolve the dispute. The report of the designated doctor shall have presumptive weight unless the great weight of the other medical evidence is to the contrary. The presumptive weight afforded the designated doctor's report shall begin the date the report is received by the commission and shall continue:

(1) until proven otherwise by the great weight of the other medical evidence; or

(2) until the designated doctor amends his/her report based on newly provided medical or physical evidence.

(b) A dispute exists if there is conflicting medical or physical evidence that has not been previously considered in a prior dispute under this section that indicates the injured employee's medical condition has improved sufficiently to allow the injured employee to return to work. Medical evidence consists of medical reports or records that are generated as a result of a hands-on examination of the injured employee. Physical evidence may consist of, but is not limited to, videotaped activities, evidence of wage earning capabilities (ie: payroll information), or reports from a private provider of vocational rehabilitation services or the Texas Rehabilitation Commission.

(c) A party who wishes to seek the appointment of a designated doctor to resolve the dispute shall make a request to the commission.

(d) The request for a designated doctor from an insurance carrier or an injured employee's representative must be in writing and provided to the commission in the form, format and manner prescribed by the commission. A request for a designated doctor from an unrepresented injured employee may be submitted in any manner.

(e) If a designated doctor has been appointed to resolve a prior dispute regarding maximum medical improvement and/or impairment rating, that doctor may not be appointed to resolve the dispute(s) regarding whether the injured employee's medical condition has improved sufficiently to allow the injured employee to return to work.

(f) The commission shall select the next available doctor from the commission's designated doctor list, which is, to the extent possible, in the same discipline and licensed by the same board of examiners as the injured employee's treating doctor of choice at the time of the finding of change in the injured employee's medical condition which would allow the injured employee to return to work and who has not previously treated or examined the injured employee with regard to the medical condition being evaluated by the designated doctor. A doctor selected under this section shall serve as the designated doctor for all dispute(s) raised under this section unless that doctor is unable or unwilling to act in that capacity.

(g) The designated doctor and the injured employee shall contact each other if there exists a scheduling conflict for the designated doctor appointment. The designated doctor or the injured employee who has the scheduling conflict must make the contact at least 24 hours prior to the appointment. The 24-hour requirement will be waived in an emergency situation (such as a death in the immediate family or a medical emergency). The rescheduled examination shall be set for a date within seven days of the originally scheduled examination unless an extension is granted by the field office managing the claim. Within 24 hours of rescheduling, the designated doctor shall contact the commission field office and the insurance carrier with the time and date of the rescheduled examination. If the designated doctor is not able to timely reschedule the examination, the designated doctor shall contact the commission field office and the insurance carrier within 24 hours of the refused examination. The commission shall then either grant an extension of not more than seven days or select a different designated doctor to perform the examination and resolve the dispute.

(h) The treating doctor and insurance carrier shall send to the designated doctor without the requirement of a signed release from the injured employee, all the employee's medical evidence in their possession relating to the medical condition to be evaluated by the designated doctor. Either party may submit with this medical evidence a videotape or other physical evidence it would like the designated doctor to review which may indicate the injured employee's medical condition has improved or has not improved sufficiently to allow the injured employee to return to return to work. The designated doctor is authorized to receive the employee's confidential medical and physical evidence provided by either party to assist in the resolution of whether the injured employee's medical condition has improved sufficiently to allow the injured employee to return to work. The medical evidence must not contain any marks, highlights, or other alterations placed on such records for the purpose of communicating with or influencing the designated doctor. The medical and physical evidence must be received by the designated doctor at least three days prior to the date of the appointment as specified in the commission order. If the medical evidence is marked, highlighted, altered, or unrelated to the medical condition to be evaluated by the designated doctor, the designated doctor shall notify the commission and report the noncompliance of the treating doctor and/or insurance carrier. If the designated doctor has not received the medical evidence at least three days prior to the examination, the designated doctor's office shall notify the commission at the appropriate field office and the appropriate commission staff will send an order to the treating doctor and/or insurance carrier for the delivery of medical evidence.

(i) To avoid undue influence on a person selected as a designated doctor in accordance with Texas Labor Code, §408.125, only the injured employee or an appropriate member of the staff of the commission may communicate with the designated doctor about the case regarding the employee's medical condition or history prior to the examination of the employee by the designated doctor. After that examination is completed, communication with the designated doctor regarding the injured employee's medical condition or history may be made only through appropriate commission staff members. An ombudsman and an ombudsman's assistant are not considered appropriate staff to contact the designated doctor and should communicate with a designated doctor only through appropriate commission personnel. The designated doctor may initiate communication with any doctor who has previously treated or examined the employee for the work-related injury.

(j) The designated doctor shall review all medical and physical evidence provided by the insurance carrier and treating doctor and shall perform a hands-on examination. The designated doctor shall give the evidence reviewed the weight he/she feels is appropriate. Following the examination, the designated doctor shall prepare a report, in the form and manner prescribed by the commission, of his/her findings regarding whether the injured employee's medical condition has improved sufficiently to allow the injured employee to return to work.

(k) The designated doctor shall file the report with the commission in the form and manner required by the commission, so that it is received by the commission not later than the seventh day after the completion of the examination of the injured employee. At the same time it is filed with the commission, the designated doctor shall provide a copy of the report by facsimile or electronic transmission to the injured employee, the injured employee's representative, if any, and the insurance carrier, unless the recipient does not have a means of receiving the transmission, in which case the report shall be sent by mail or personal delivery.

(l) The designated doctor may perform additional testing or refer the injured employee to other health care providers when deemed necessary to find whether the injured employee's medical condition has improved sufficiently to allow the injured employee to return to work. Necessary additional testing is not subject to the preauthorization requirements in the Texas Labor Code, §413.014 (relating to Preauthorization) and additional testing must be completed within seven days of the designated doctor's physical examination of the employee.

(m) The designated doctor shall maintain accurate records to reflect:

(1) the date and time of any designated doctor appointments scheduled with injured employees;

(2) the circumstances regarding a cancellation, no-show or other situation where the examination did not occur as initially scheduled or rescheduled;

(3) the date of the examination and any testing;

(4) the date medical and physical evidence was received from the treating doctor or insurance carrier or any other person or organization;

(5) the date the medical evaluation/work status report was submitted to all parties in accordance with subsection (k) of this section; and

(6) the name of all referral health care providers, dates of referral, dates of appointments and testing dates results were received, and reason(s) for referral by the designated doctor.

~~[ ~~(n)~~ The commission may:]~~

~~[ ~~(1)~~ issue an order requiring timely submission of medical evaluation reports or narrative reports;]~~

~~[ ~~(2)~~ issue an order for refund to the insurance carrier of the examination payment if an improper or incomplete examination is performed or improper or incomplete report is submitted;]~~

~~[ ~~(3)~~ take action to remove a doctor from the Designated Doctor List as described in accordance with §126.10 of this title (relating to commission Approved List of Designated Doctors); and/or]~~

~~[ ~~(4)~~ take action to remove a doctor from the Approved Doctor List in accordance with §126.8 of this title (relating to commission Approved Doctor List).]~~

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 20, 2001.
TRD-200104898

Susan Cory

General Counsel

Texas Workers' Compensation Commission

Earliest possible date of adoption: September 30, 2001

For further information, please call: (512) 804-4287

Chapter 133. GENERAL MEDICAL PROVISIONS
Subchapter A. GENERAL RULE FOR REQUIRED REPORTS

28 TAC §133.3, §133.4
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Workers' Compensation Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Texas Workers' Compensation commission (the commission) proposes the repeal of §133.3 (relating to Responsibilities of Treating Doctor) and of §133.4 (relating to Consulting and Referral Doctors).

House Bill 2600 (HB-2600), passed by the 77th Texas Legislature in its 2001 session, made numerous amendments to the Texas Labor Code. Many of these changes related to regulating medical benefit delivery by: changing the commission's approved doctor list (ADL) and application process (including mandated training); changing the grounds under which the commission can issue sanctions (as well as expanding the sanctions); adding a Medical Advisor to the commission staff and Medical Quality Review Panel (QRP), and providing for expanded financial disclosure and prohibiting inappropriate referral fees, kickbacks, or other financial incentives.

To implement these changes, the commission examined its existing rules and found that most of the provisions relating to general regulation of doctors and health care are spread out among several chapters (126, 133, and 134 in particular). Given the scope of changes to be made and to simplify usage, the commission is proposing to move these provisions to Chapter 180. The commission's Medical Advisor provided recommendations regarding these rules.

The amendments and additions proposed for Chapter 180 are based upon legislative changes provided in Articles 1 and 6 of HB-2600. Chief among the changes is that admission to the ADL now requires a doctor to apply and meet specified criteria. Prior to this change, admission to the ADL was automatic upon receiving a license. Now doctors will be required to take training and register to be on the list. In addition, the Commission has been given the authority to deny or restrict admission based upon factors such as practice restrictions. Approved doctors will be issued certificates of registration that expire if re-training requirements are not met.

Another major change is that HB-2600 now mandates that doctors serving any role in the Texas workers' compensation system be on the ADL. In the past, only treating doctors were required to be on the ADL. Doctors who are not on the ADL will be prohibited from performing services or receiving reimbursement in the Texas workers' compensation system (except in an emergency or for immediate post-injury medical care).

HB-2600 also mandates that the commission set up modified training and registration requirements for certain types of doctors such as those who do not participate in the Texas workers' compensation system at a high volume or those who only perform peer reviews and utilization review (UR). Doctors from other states are permitted to be on the ADL. However, out of state doctors who review health care services (such as though utilization review or peer reviews) are required to be supervised by a doctor licensed in Texas.

HB-2600 requires that the commission collect information about treating doctors regarding return to work outcomes, patient satisfaction, and cost and utilization of health care in order to promote quality of care and best practices. The commission previously collected information on cost and utilization of care but this was based upon the person providing the care and who was not necessarily the treating doctor for the claim. This information will be important over time because HB-2600 makes major changes to the way the commission regulates doctors on the ADL.

As a simplification, HB-2600 now mandates that the Executive Director remove doctors from the list who fail to register with the commission, who are deceased, whose license to practice has been revoked, suspended, or not renewed by the appropriate licensing authority, or who requests to be removed. Previously, removal under these circumstances required commissioner approval.

The commission's authority to address activities not in full compliance with the law or not representative of quality care has been greatly expanded. Both the grounds for taking action and the actions the commission is authorized to take are broader than under the previous statute.

To help evaluate behavior by doctors and carriers (as relates to medical benefit delivery), HB-2600 created an official Medical Advisor position that is imbued with specific authority and responsibilities. Also created was the QRP which functions to support the Medical Advisor in reviewing the conduct of doctors and carriers relating to medical benefit delivery.

Proposed Repeal of §133.3 -- Responsibilities of Treating Doctor

Current §133.3 sets out the general responsibilities of treating doctors. As part of the commission's effort to consolidate information on the various roles that a doctor can play in the system and the responsibilities associated with these roles, the commission proposes repeal of §133.3. The provisions of §133.3 will be replaced by proposed §180.22 (relating to Health Care Provider Roles and Responsibilities).

Proposed Repeal of §133.4 -- Consulting and Referral Doctors

Current §133.4 sets out the general responsibilities of consulting and referral doctors. As part of the commission's effort to consolidate information on the various roles that a doctor can play in the system and the responsibilities associated with these roles, the commission proposes repeal of §133.4. The provisions of §133.4 will be replaced by proposed §180.22.

Dr. Bill Nemeth, the commission's medical advisor, has determined the following with respect to fiscal impact for the first five-year period the proposed amended and new rules are in effect.

With regard to enforcement and administration of the rules by state or local governments there will be no significant impact on local governments. However, there are significant fiscal implications to the commission because of the need to develop or modify automated systems, review thousands of applications for the ADL, and train and monitor doctors and carriers, and train commission staff. However, it is difficult to quantify these costs. The ability of the executive director to administratively remove some doctors from the ADL should decrease some costs for the commission.

Local government and state government as covered regulated entities, will be impacted in the same manner as persons required to comply with the rules as proposed.

Dr. Nemeth has determined that for each year of the first five years the rules as proposed are in effect, the public benefits or costs will result from new and amended rules in proposed Chapter 180. The following public benefit/cost note applies to the Chapter 180 rules proposal.

The public benefits anticipated as a result of enforcing the rules will be better access to higher quality medical care, reduced medical and indemnity claims costs (which will eventually result in reduced premiums), and more timely returns to work. However these benefits will increase over time and may not be significant in the first two years as the requirements of the rules will not be fully implemented by then.

Employees

Employees will benefit in a number of ways. The intent of HB-2600, and these rules is to ensure that employees have access to doctors who will provide timely quality care that is designed to cure or relieve the effects naturally resulting from the compensable injury, promote recovery, and/or enhance the ability of the employee to return to or retain employment. The commission expects that employees will see improvements in these areas as a result of the new rules. The exceptions provided for some out-of-state and low-volume doctors should help ensure employee access to quality health care.

The training relating to MMI and impairment should provide a number of benefits. Employees should receive more accurate impairment ratings and this will ensure that they get the benefits they are entitled to. More accurate impairment ratings should also reduce disputes and this should reduce the number of employee exams required and reduce delays in employees receiving their benefits. Disputes relating to MMI date should also be reduced because doctors will be better educated on how to certify MMI.

Studies have shown that employees who remain off of work longer are less likely to ever return to work at wages approaching those they were earning while injured. The emphasis on timely return to work in the training that doctors will receive should result in fewer employees remaining off of work longer than medically appropriate. As a result, the long-term impact of injuries on employees should be lessened.

Currently carriers utilizing the medical opinions of doctors who are not fully trained in Texas workers' compensation law often interrupt employees' medical care. By educating peer review and utilization review doctors, disputes that affect benefit delivery may be avoided. Reductions in disputes should improve medical benefit delivery, lower frustration, and speed recovery. Education and training of designated doctors should result in faster resolution of disputes.

Employees are not expected to see an increase in costs as a result of these rules. Employees who are currently kept off of work longer than is appropriate might receive fewer benefits under the new rules but this is off set by the benefit of returning to work.

Health Care Providers

Doctors will similarly benefit from these rules in a number of ways. First, as noted, carrier-selected doctors will be better trained and this should reduce unnecessary disputes (both prospective and retrospective). With costs currently very high and rising, action by some carriers designed to address non-compliant doctors may be affecting some doctors who are compliant. To the extent that the commission is able to reduce the number of non-compliant doctors (e. g. by changing behavior or removing the doctors who won't change), the remaining doctors should experience increased efficiencies in the handling of their claims. In addition, these doctors are likely to see an increase in their worker's compensation business.

Currently some doctors offer improper inducements to employees in order to get the employees to change doctors. Often the doctors who are doing this are the doctors who keep employees off work longer than medically necessary and otherwise add to system costs by overutilizing care. The prohibition of improper inducements and the efforts to remove non-compliant doctors, should also increase workers' compensation business for those who comply with system rules and regulations.

Another benefit to providers is that the commission's ability to sanction carriers for quality of care issues is expanded by these rules. The increased ability to hold carriers responsible for their actions and inactions should result in improved compliance and, as a result, payments of medical bills may be more timely and accurate while disputes may be reduced.

Some doctors may see a slight increase in costs associated with obtaining email access and with having to take periodic training. However these increases are expected to be nominal and the statute requires that the commission establish some training requirements. Doctors already have continuing education requirements which are required for them to keep their licenses in good standing. Since the required training will be certified for continuing education credit, doctors will be able to fulfill two requirements at once. Treating doctors may also experience some costs associated with reporting outcome information to the commission. However, this requirement is mandated by the Legislature.

The expanded financial disclosure requirements may also increase some costs to providers, however, these requirements were also mandated by the Legislature.

Insurance carriers

Insurance carriers will benefit from the lower costs that will come as the system transitions from using an open list of approved doctors to using a controlled list of doctors specially trained in Texas workers' compensation. Prior to HB-2600, the commission's ability to exclude or otherwise limit doctors from participation in the system was limited. The system has seen workers' compensation costs (both indemnity and medical costs) rise significantly, especially when compared to costs in other states. To the extent that the commission is able to change utilization and return to work patterns (e.g. by changing behavior or by removing doctors who won't change behavior), costs shall be reduced.

In addition, with full financial disclosure, carriers will be able to give extra scrutiny to medical services provided through a self-referral by the doctor. Though these services may be reasonable and necessary, doctors who self-refer have an additional incentive to make the referral and thus additional scrutiny may be appropriate.

Similarly, prohibitions against improper inducements should ensure that only those benefits that the employee is truly entitled to are delivered.

The commission's expanded ability to remove doctors from the system should help increase compliance with the Statute and Rules. This should reduce claim costs by reducing overpayments caused by late reports by doctors.

Employers

Because insurance premiums are driven by claim costs, employers will see benefits to the extent that the commission is able to successfully implement HB-2600. Employers should benefit because the new rules should promote earlier returns to work. The earlier returns to work should also reduce the loss of productivity that an injury can cause. Employers should not see an increase in costs associated with these rules.

There will be no adverse economic impact on small businesses or on micro-businesses as a result of the proposed rule amendments. There will be only a proportionate difference in the cost of compliance for small businesses and micro-businesses as compared to the largest businesses, including state and local government entities. The same basic processes and procedures apply, regardless of the size or volume of the business. The business size cost difference will be in direct proportion to the volume of business that falls under the purview of these proposed rules.

Comments on the proposal must be received by 5:00 p.m., October 1, 2001. You may comment via the Internet by accessing the commission's website at http://www.twcc.state.tx.us and then clicking on "Proposed Rules." This medium for commenting will help you organize your comments. You may also email your comments to RuleComments@twcc.state.tx.us or mail or deliver your comments to Nell Cheslock at the Office of the General Counsel, Mailstop #4-D, Texas Workers' Compensation commission, Southfield Building, 4000 South IH-35, Austin, Texas 78704-7491.

Commenters are requested to clearly identify by number the specific subsection and paragraph commented upon. The commission may not be able to respond to comments which cannot be linked to a particular proposed subsection. Along with your comment, it is suggested that you include the reasoning for the comment in order for commission staff to fully evaluate your recommendations. Unspecified comments submitted will not be addressed.

Based upon various considerations, including comments received and the staff's or commissioners' review of those comments, or based upon the commissioners' action at the public meeting, the rule as adopted may be revised from the rule as proposed in whole or in part Persons in support of the rule as proposed, in whole or in part, may wish to comment to that effect with reference to specifics in the proposed rule amendments.

A public hearing on this proposal will be held on October 2, 2001, at the Austin central office of the commission (Southfield Building, 4000 South IH-35, Austin, Texas). Those persons interested in attending the public hearing should contact the commission's Office of Executive Communication at (512) 804-4430 to confirm the date, time, and location of the public hearing for this proposal. The public hearing schedule will also be available on the commission's website at www.twcc.state.tx.us

These repeals are proposed under: the Texas Labor Code, §401.011 which contains definitions used in the Texas Workers' Compensation Act; the Texas Labor Code, §401.024, which provides the commission the authority to require use of facsimile or other electronic means to transmit information in the system; the 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 and manner and procedure for transmission of information to the commission; the Texas Labor Code, the Texas Labor Code: §402.061, which authorizes the commission to adopt rules necessary to administer the Act; the Texas Labor Code §406.010 that authorizes the commission to adopt rules regarding claims service; the Texas Labor Code §408.021 that states an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed; the Texas Labor Code §408.022 which address choice of treating doctor; the Texas Labor Code §408.023 which requires the commission to develop a list of approved doctors and lay out the requirements for being on the list; the Texas Labor Code §408.0231 which provides the commission with the responsibility for maintenance of the list, with the authority for imposing sanctions, and requires the commission to adopt rules; the Texas Labor Code, §408.025 which requires the commission to specify by rule what reports a health care provider is required to file; the Texas Labor Code §413.002, that requires the commission to monitor health care providers and carriers to ensure compliance with commission rules relating to health care including medical policies and fee guidelines; the Texas Labor Code §413.011 that requires the commission by rule to establish medical policies relating to necessary treatments for injuries and designed to ensure the quality of medical care and to achieve effective medical cost control; the Texas Labor Code, §413.012 which requires the commission to review and revise medical policies and fee guidelines at least every two years to reflect current medical treatment and fees that are reasonable and necessary; the Texas Labor Code, §413.013 which requires the commission by rule to establish a program for prospective, concurrent, and retrospective review and resolution of a dispute regarding health care treatments and services; a program for the systematic monitoring of the necessity of the treatments administered and fees charged and paid for medical treatments or services including the authorization of prospective, concurrent or retrospective review and a program to detect practices and patterns by insurance carriers in unreasonably denying authorization of payment for medical services, and a program to increase the intensity of review; the Texas Labor Code §413.014 that requires the commission to specify by rule, except for treatments and services required to treat a medical emergency, which health care treatments and services require express preauthorization and concurrent review by the carrier as well as allowing health care providers to request precertification and allowing the carriers to enter agreements to pay for treatments and services that do not require preauthorization or concurrent review. This mandate also states the carrier is not liable for the cost of the specified treatments and services unless preauthorization is sought by the claimant or health care provider and either obtained or ordered by the commission; the Texas Labor Code §413.017 that establishes medical services to be presumed reasonable when provided subject to prospective, concurrent review and are authorized by the carrier; the Texas Labor Code §413.031, that establishes the right to access medical dispute resolution; the Texas Labor Code §413.041 which requires financial disclosure of financial interests by health care providers and their employers, which requires the commission to adopt federal standards prohibiting payment of acceptance of payment in exchange for health care referrals, and which prohibits payment to a provider during a period of noncompliance with disclosure requirements; the Texas Labor Code §413.0511 which creates the position of Medical Advisor and imbues the position with certain responsibilities and authority; the Texas Labor Code §413.0512 which creates the Medical Quality Review Panel (MQRP) and grants it certain responsibilities and authority; certain responsibilities and authority; the Texas Labor Code, §413.0513 which lays out confidentiality provisions relating to the MQRP. §414.007, that allows the review of referrals from the Medical Review Division by the Division of Compliance and Practices; and the Texas Labor Code §415.0035 that establishes administrative violations for repeated administrative violations.

No other statutes, articles or codes are affected by the repeal of these rules.
§133.3.Responsibilities of Treating Doctor.
§133.4.Consulting and Referral Doctors.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 20, 2001.
TRD-200104899

Susan Cory

General Counsel

Texas Workers' Compensation Commission

Earliest possible date of adoption: September 30, 2001

For further information, please call: (512) 804-4287

Chapter 134. BENEFITS-GUIDELINES FOR MEDICAL SERVICES, CHARGES AND PAYMENTS
Subchapter B. DISCLOSURE BY HEALTH CARE PROVIDER OF FINANCIAL INTEREST IN REFERRED PROVIDER

28 TAC §134.100, §134.101
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Workers' Compensation Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Texas Workers' Compensation Commission (the commission) proposes repeal of §134.100 (relating to Provider Disclosure of Financial Interest, Submission to the commission) and §134.101 (relating to Provider Disclosure of Financial Interest, Submission to the Carrier).

House Bill 2600 (HB-2600), passed by the 77th Texas Legislature in its 2001 session, made numerous amendments to the Texas Labor Code. Many of these changes related to regulating medical benefit delivery by: changing the commission's approved doctor list (ADL) and application process (including mandated training); changing the grounds under which the commission can issue sanctions (as well as expanding the sanctions); adding a Medical Advisor to the commission staff and Medical Quality Review Panel (QRP), and providing for expanded financial disclosure and prohibiting inappropriate referral fees, kickbacks, or other financial incentives.

To implement these changes, the commission examined its existing rules and found that most of the provisions relating to general regulation of doctors and health care are spread out among several chapters (126, 133, and 134 in particular). Given the scope of changes to be made and to simplify usage, the commission is proposing to move these provisions to Chapter 180. The commission's Medical Advisor provided recommendations regarding these rules.

The amendments and additions proposed for Chapter 180 are based upon legislative changes provided in Articles 1 and 6 of HB-2600. Chief among the changes is that admission to the ADL now requires a doctor to apply and meet specified criteria. Prior to this change, admission to the ADL was automatic upon receiving a license. Now doctors will be required to take training and register to be on the list. In addition, the commission has been given the authority to deny or restrict admission based upon factors such as practice restrictions. Approved doctors will be issued certificates of registration that expire if re-training requirements are not met.

Another major change is that HB-2600 now mandates that doctors serving any role in the Texas workers' compensation system be on the ADL. In the past, only treating doctors were required to be on the ADL. Doctors who are not on the ADL will be prohibited from performing services or receiving reimbursement in the Texas workers' compensation system (except in an emergency or for immediate post-injury medical care).

HB-2600 also mandates that the commission set up modified training and registration requirements for certain types of doctors such as those who do not participate in the Texas workers' compensation system at a high volume or those who only perform peer reviews and utilization review (UR). Doctors from other states are permitted to be on the ADL. However, out of state doctors who review health care services (such as though utilization review or peer reviews) are required to be supervised by a doctor licensed in Texas.

HB-2600 requires that the commission collect information about treating doctors regarding return to work outcomes, patient satisfaction, and cost and utilization of health care in order to promote quality of care and best practices. The commission previously collected information on cost and utilization of care but this was based upon the person providing the care and who was not necessarily the treating doctor for the claim. This information will be important over time because HB-2600 makes major changes to the way the commission regulates doctors on the ADL.

As a simplification, HB-2600 now mandates that the Executive Director remove doctors from the list who fail to register with the commission, who are deceased, whose license to practice has been revoked, suspended, or not renewed by the appropriate licensing authority, or who requests to be removed. Previously, removal under these circumstances required commissioner approval.

The commission's authority to address activities not in full compliance with the law or not representative of quality care has been greatly expanded. Both the grounds for taking action and the actions the commission is authorized to take are broader than under the previous statute.

To help evaluate behavior by doctors and carriers (as relates to medical benefit delivery), HB-2600 created an official Medical Advisor position that is imbued with specific authority and responsibilities. Also created was the QRP which functions to support the Medical Advisor in reviewing the conduct of doctors and carriers relating to medical benefit delivery.

The change made by HB2600 that motivates the proposed deletion of §134.100 and §133.101 involves the requirement for the commission to adopt guides for financial disclosure that are similar to the federal standards.

Current §134.100 lays out the general requirements for notification of financial interest to the commission. As part of the commission's effort to consolidate key rules relating to health care provider regulation the repeal of §134.100 is proposed. New §180.24 (relating to Financial Disclosure) and §180.25 (relating to Improper Inducements Influence and Threats) will replace the requirements of §134.100-134.101.

Current §134.101 lays out the general requirements for notification of financial interest to the carrier. As part of the commission's effort to consolidate key rules relating to health care provider regulation the repeal of §134.101 is proposed. New §180.24 (relating to Financial Disclosure) and §180.25 (relating to Improper Inducements Influence and Threats) will replace the requirements of §134.100-134.101.

Dr. Bill Nemeth, the commission's Medical Advisor, has determined the following with respect to fiscal impact for the first five-year period the proposed amended and new rules are in effect.

With regard to enforcement and administration of the rules by state or local governments there will be no significant impact on local governments. However, there are significant fiscal implications to the commission because of the need to develop or modify automated systems, review thousands of applications for the ADL, and train and monitor doctors and carriers, and train commission staff. However, it is difficult to quantify these costs. The ability of the Executive Director to administratively remove some doctors from the ADL should decrease some costs for the commission.

Local government and state government as covered regulated entities, will be impacted in the same manner as persons required to comply with the rules as proposed.

Dr. Nemeth has determined that for each year of the first five years the rules as proposed are in effect, the public benefits or costs will result from new and amended rules in proposed Chapter 180. The following public benefit/cost note applies to the Chapter 180 rules proposal.

The public benefits anticipated as a result of enforcing the rules will be better access to higher quality medical care, reduced medical and indemnity claims costs (which will eventually result in reduced premiums), and more timely returns to work. However these benefits will increase over time and may not be significant in the first two years as the requirements of the rules will not be fully implemented by then.

Employees

Employees will benefit in a number of ways. The intent of HB-2600, and these rules is to ensure that employees have access to doctors who will provide timely quality care that is designed to cure or relieve the effects naturally resulting from the compensable injury, promote recovery, and/or enhance the ability of the employee to return to or retain employment. The commission expects that employees will see improvements in these areas as a result of the new rules. The exceptions provided for some out-of-state and low-volume doctors should help ensure employee access to quality health care.

The training relating to MMI and impairment should provide a number of benefits. Employees should receive more accurate impairment ratings and this will ensure that they get the benefits they are entitled to. More accurate impairment ratings should also reduce disputes and this should reduce the number of employee exams required and reduce delays in employees receiving their benefits. Disputes relating to MMI date should also be reduced because doctors will be better educated on how to certify MMI.

Studies have shown that employees who remain off of work longer are less likely to ever return to work at wages approaching those they were earning while injured. The emphasis on timely return to work in the training that doctors will receive should result in fewer employees remaining off of work longer than medically appropriate. As a result, the long-term impact of injuries on employees should be lessened.

Currently carriers utilizing the medical opinions of doctors who are not fully trained in Texas workers' compensation law often interrupt employees' medical care. By educating peer review and utilization review doctors, disputes that affect benefit delivery may be avoided. Reductions in disputes should improve medical benefit delivery, lower frustration, and speed recovery. Education and training of designated doctors should result in faster resolution of disputes.

Employees are not expected to see an increase in costs as a result of these rules. Employees who are currently kept off of work longer than is appropriate might receive fewer benefits under the new rules but this is off set by the benefit of returning to work.

Health Care Providers

Doctors will similarly benefit from these rules in a number of ways. First, as noted, carrier-selected doctors will be better trained and this should reduce unnecessary disputes (both prospective and retrospective). With costs currently very high and rising, action by some carriers designed to address non-compliant doctors may be affecting some doctors who are compliant. To the extent that the commission is able to reduce the number of non-compliant doctors (e. g. by changing behavior or removing the doctors who won't change), the remaining doctors should experience increased efficiencies in the handling of their claims. In addition, these doctors are likely to see an increase in their worker's compensation business.

Currently some doctors offer improper inducements to employees in order to get the employees to change doctors. Often the doctors who are doing this are the doctors who keep employees off work longer than medically necessary and otherwise add to system costs by overutilizing care. The prohibition of improper inducements and the efforts to remove non-compliant doctors, should also increase workers' compensation business for those who comply with system rules and regulations.

Another benefit to providers is that the commission's ability to sanction carriers for quality of care issues is expanded by these rules. The increased ability to hold carriers responsible for their actions and inactions should result in improved compliance and, as a result, payments of medical bills may be more timely and accurate while disputes may be reduced.

Some doctors may see a slight increase in costs associated with obtaining email access and with having to take periodic training. However these increases are expected to be nominal and the statute requires that the commission establish some training requirements. Doctors already have continuing education requirements which are required for them to keep their licenses in good standing. Since the required training will be certified for continuing education credit, doctors will be able to fulfill two requirements at once. Treating doctors may also experience some costs associated with reporting outcome information to the commission. However, this requirement is mandated by the Legislature.

The expanded financial disclosure requirements may also increase some costs to providers, however, these requirements were also mandated by the Legislature. Insurance carriers

Insurance carriers will benefit from the lower costs that will come as the system transitions from using an open list of approved doctors to using a controlled list of doctors specially trained in Texas workers' compensation. Prior to HB-2600, the commission's ability to exclude or otherwise limit doctors from participation in the system was limited. The system has seen workers' compensation costs (both indemnity and medical costs) rise significantly, especially when compared to costs in other states. To the extent that the commission is able to change utilization and return to work patterns (e.g. by changing behavior or by removing doctors who won't change behavior), costs shall be reduced.

In addition, with full financial disclosure, carriers will be able to give extra scrutiny to medical services provided through a self-referral by the doctor. Though these services may be reasonable and necessary, doctors who self-refer have an additional incentive to make the referral and thus additional scrutiny may be appropriate.

Similarly, prohibitions against improper inducements should ensure that only those benefits that the employee is truly entitled to are delivered.

The commission's expanded ability to remove doctors from the system should help increase compliance with the Statute and Rules. This should reduce claim costs by reducing overpayments caused by late reports by doctors.

Employers

Because insurance premiums are driven by claim costs, employers will see benefits to the extent that the commission is able to successfully implement HB-2600. Employers should benefit because the new rules should promote earlier returns to work. The earlier returns to work should also reduce the loss of productivity that an injury can cause. Employers should not see an increase in costs associated with these rules.

There will be no adverse economic impact on small businesses or on micro-businesses as a result of the proposed rule amendments. There will be only a proportionate difference in the cost of compliance for small businesses and micro-businesses as compared to the largest businesses, including state and local government entities. The same basic processes and procedures apply, regardless of the size or volume of the business. The business size cost difference will be in direct proportion to the volume of business that falls under the purview of these proposed rules.

Comments on the proposal must be received by 5:00 p.m., October 1, 2001. You may comment via the Internet by accessing the commission's website at http://www.twcc.state.tx.us and then clicking on "Proposed Rules." This medium for commenting will help you organize your comments. You may also email your comments to RuleComments@twcc.state.tx.us or mail or deliver your comments to Nell Cheslock at the Office of the General Counsel, Mailstop #4-D, Texas Workers' Compensation Commission, Southfield Building, 4000 South IH-35, Austin, Texas 78704-7491.

Commenters are requested to clearly identify by number the specific subsection and paragraph commented upon. The commission may not be able to respond to comments which cannot be linked to a particular proposed subsection. Along with your comment, it is suggested that you include the reasoning for the comment in order for commission staff to fully evaluate your recommendations. Unspecified comments submitted will not be addressed.

Based upon various considerations, including comments received and the staff's or commissioners' review of those comments, or based upon the commissioners' action at the public meeting, the rule as adopted may be revised from the rule as proposed in whole or in part Persons in support of the rule as proposed, in whole or in part, may wish to comment to that effect with reference to specifics in the proposed rule amendments.

A public hearing on this proposal will be held on October 2, 2001, at the Austin central office of the commission (Southfield Building, 4000 South IH-35, Austin, Texas). Those persons interested in attending the public hearing should contact the commission's Office of Executive Communication at (512) 804-4430 to confirm the date, time, and location of the public hearing for this proposal. The public hearing schedule will also be available on the commission's website at www.twcc.state.tx.us

The repeals are proposed under the following statutes: the Texas Labor Code, §401.011 which contains definitions used in the Texas Workers' Compensation Act; the Texas Labor Code, §401.024, which provides the commission the authority to require use of facsimile or other electronic means to transmit information in the system; the 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 and manner and procedure for transmission of information to the commission; the Texas Labor Code, the Texas Labor Code: §402.061, which authorizes the commission to adopt rules necessary to administer the Act; the Texas Labor Code §406.010 that authorizes the commission to adopt rules regarding claims service; the Texas Labor Code §408.021 that states an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed; the Texas Labor Code §408.022 which address choice of treating doctor; the Texas Labor Code §408.023 which requires the commission to develop a list of approved doctors and lay out the requirements for being on the list; the Texas Labor Code §408.0231 which provides the commission with the responsibility for maintenance of the list, with the authority for imposing sanctions, and requires the commission to adopt rules; the Texas Labor Code, §408.025 which requires the commission to specify by rule what reports a health care provider is required to file; the Texas Labor Code §413.002, that requires the commission to monitor health care providers and carriers to ensure compliance with commission rules relating to health care including medical policies and fee guidelines; the Texas Labor Code §413.011 that requires the commission by rule to establish medical policies relating to necessary treatments for injuries and designed to ensure the quality of medical care and to achieve effective medical cost control; the Texas Labor Code, §413.012 which requires the commission to review and revise medical policies and fee guidelines at least every two years to reflect current medical treatment and fees that are reasonable and necessary; the Texas Labor Code, §413.013 which requires the commission by rule to establish a program for prospective, concurrent, and retrospective review and resolution of a dispute regarding health care treatments and services; a program for the systematic monitoring of the necessity of the treatments administered and fees charged and paid for medical treatments or services including the authorization of prospective, concurrent or retrospective review and a program to detect practices and patterns by insurance carriers in unreasonably denying authorization of payment for medical services, and a program to increase the intensity of review; the Texas Labor Code §413.014 that requires the commission to specify by rule, except for treatments and services required to treat a medical emergency, which health care treatments and services require express preauthorization and concurrent review by the carrier as well as allowing health care providers to request precertification and allowing the carriers to enter agreements to pay for treatments and services that do not require preauthorization or concurrent review. This mandate also states the carrier is not liable for the cost of the specified treatments and services unless preauthorization is sought by the claimant or health care provider and either obtained or ordered by the commission; the Texas Labor Code §413.017 that establishes medical services to be presumed reasonable when provided subject to prospective, concurrent review and are authorized by the carrier; the Texas Labor Code §413.031, that establishes the right to access medical dispute resolution; the Texas Labor Code§ 413.041 which requires financial disclosure of financial interests by health care providers and their employers, which requires the commission to adopt federal standards prohibiting payment of acceptance of payment in exchange for health care referrals, and which prohibits payment to a provider during a period of noncompliance with disclosure requirements; the Texas Labor Code §413.0511 which creates the position of Medical Advisor and imbues the position with certain responsibilities and authority; the Texas Labor Code §413.0512 which creates the Medical Quality Review Panel (MQRP) and grants it certain responsibilities and authority; certain responsibilities and authority; the Texas Labor Code, §413.0513 which lays out confidentiality provisions relating to the MQRP. §414.007, that allows the review of referrals from the Medical Review Division by the Division of Compliance and Practices; and the Texas Labor Code §415.0035 that establishes administrative violations for repeated administrative violations.

No other statutes, articles or codes are affected by the repeal of these rules.
§134.100.Provider Disclosure of Financial Interest, Submission to the Commission.
§134.101.Provider Disclosure of Financial Interest, Submission to the Carrier.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 20, 2001.
TRD-200104900

Susan Cory

General Counsel

Texas Workers' Compensation Commission

Earliest possible date of adoption: September 30, 2001

For further information, please call: (512) 804-4287

Subchapter F. PHARMACEUTICAL BENEFITS

28 TAC §§134.500, 134.502 - 134.506

The Texas Workers' Compensation Commission (the commission) proposes new §134.500, and §§134.502-134.506 concerning pharmaceutical services. Section 134.501 is reserved for expansion.

These new rules are proposed to comply with statutory mandates in the Texas Labor Code. Prior to the 77th Legislative Session, 2001, §408.028 required a health care practitioner providing care to an injured employee to prescribe any necessary prescription drugs in accordance with applicable state law. It also stated that an insurance carrier may not require an employee to use pharmaceutical services designated by the carrier.

House Bill 2600 (HB-2600), adopted during the 2001 Texas Legislative Session, amended §408.028. In addition to previous requirements, the revised statute requires that physicians and doctors order over-the-counter alternatives to prescription medications when clinically appropriate and applicable, in accordance with state law. Amended §408.028 requires the commission by rule to develop an open formulary under §413.011 that requires the use of generic pharmaceutical medications and clinically appropriate over-the-counter alternatives to prescription medications as clinically appropriate and applicable in accordance with state law. Finally, amended §408.028 requires the commission to adopt rules to allow an injured employee to obtain reimbursement for over-the-counter medications prescribed or ordered, and purchased by the employee.

A May, 2000 study by the Research and Oversight Council on Workers' Compensation (the ROC) examined state agency workers' compensation pharmaceutical data and concluded that pharmaceutical costs have risen an average of 50 percent from 1997 to 1999. During the period of 1995 through 1998, the frequency of state employee workers' compensation filings decreased 20 percent. Rising utilization coupled with the fact that injured employees in Texas have a choice between brand name and generic drugs created major cost increases to the system. HB-2600 requires the use of generic medications. This requirement, stated throughout new §134.500, and §§134.502-506, is anticipated to create a system-wide savings.

Proposed new §134.500, and §§134.502-506 provide much needed structure and clarification of pharmaceutical benefits. Section 134.501 is reserved for future use. In the absence of pharmacy data, it is difficult to quantify the problems and costs relating to pharmacy issues. However, based on the anecdotal personal experiences from employees, prescribing doctors, pharmacists, and carriers involved in pharmaceutical delivery, it is believed that the proposed rules will address many of the problems in the system. The Medical Advisory Committee (MAC) provided advice and input for proposed §134.500, and §§134.502-506 through a subcommittee. The commission's Medical Advisor also provided consultation and recommendations for these rules.

§134.500. Definitions.

Proposed new §134.500 provides definitions for terms used throughout this subchapter. Adding a section of definitions clarifies the meaning of the rules and increases the ability of the parties to understand their responsibilities. The following terms are defined: "compounding," "statement of medical necessity," "nonprescription drug or over the counter medication," "open formulary," prescribing doctor," "prescription," and "prescription drug." The rule is proposed to apply to prescriptions that are prescribed on or after March 1, 2002.

§134.502. Pharmaceutical Services.

Proposed new §134.502 relates to the prescribing, billing and dispensing of medications. This section requires doctors to prescribe generics and over-the-counter alternatives when appropriate and to comply with §134.506, the Outpatient Drug Formulary. Current rules do not put any limitations on brand-name prescriptions and do not address the prescription of over-the-counter medications. HB-2600 gives the commission the authority to require the use of generic medications and to address prescribing of over-the-counter medications as alternatives to prescription drugs, and this rule does both. The rule as proposed does not allow an employee to refuse a generic prescription and opt for a brand name drug by agreeing that the employee will pay additional cost or a copayment, as allowed in some other health care systems.

This rule also introduces the statement of medical necessity and provides a framework for the contents of the statement. This tool, already informally used, will assist multiple system participants in gaining access to and in the reimbursing of medications. A statement of medical necessity will assist pharmacists in the resolution of medical necessity disputes. The statement will also assist injured employees when seeking reimbursement for out-of-pocket expenses for medications. Proposed §134.502 formalizes the statement of medical necessity by requiring the doctor to furnish it to a requesting party and giving a framework for the content of the statement or documentation.

§134.503. Reimbursement Methodology.

Proposed new §134.503 outlines the reimbursement for pharmaceutical services. The general reimbursement methodology from the 1996 Medical Fee Guideline (MFG) was carried over with some exceptions. The 1996 MFG had a dispensing fee of $7.50 for generic medications and a dispensing fee of $4.00 for brand-name medications. The higher fee for generic medications was designed to encourage the dispensing of generic medications. Proposed §134.502 requires the use of generics in most instances; therefore, it is not necessary to provide a financial incentive to dispense generic medications. The proposed rule also eliminates the separate multiplier for generic and brand name drugs, and sets the multiplier at 1.25 for both. The 1996 Medical Fee Guideline required use of two monthly publications of Medispan, while the proposed rule authorizes use of any nationally recognized pharmaceutical reimbursement system.

Proposed §134.503 instructs the pharmacist to dispense the generic when prescribed or when a prescription does not require the use of a brand name drug. The rule as proposed does not allow an employee to refuse a generic prescription and opt for a brand name drug by agreeing that the employee will pay additional cost or a copayment, as allowed in some other health care systems.

The proposed rule sets reimbursement for over the counter drugs at reasonable retail value, excepts inpatient and parenteral drugs, and requires insurance carriers to update pricing data at least every 30 days.

§134.504. Pharmaceutical Expenses Incurred by the Injured Employee.

Proposed new §134.504 provides a process for the injured employee to obtain reimbursement for medications that have been purchased out-of-pocket. Current rules do not address injured employee reimbursement for pharmaceutical expenses, nor do they require a carrier to consider an injured employee's request for reimbursement. Under current rules, injured employees submit a variety of forms of requests to carriers seeking reimbursement. Proposed rule 134.504 establishes a standardized method for employees to seek and receive reimbursement for monies paid out-of-pocket for prescriptions.

§134.505. Chronic Pain Prescriptions. Proposed new §134.505 addresses opioids prescribed for employees with chronic, non-cancer pain. The rule requires the treating doctor to submit a written report to the carrier for treatment with opioids beyond thirty days. The proposed rule outlines what the report must contain and requires the report be submitted at least every sixty days when treating with opioids. The proposed rule also addresses payment and denial of payment for opioids.

§134.506. Outpatient Drug Formulary New §134.506 as proposed, would adopt the outpatient open drug formulary as defined in Section 134.500(a)(4). Proposed §134.506 also addresses detoxification and chemical dependency treatments, and additional information for certain prescriptions. It also gives direction to the carrier as to what to do when they have concerns about medications prescribed, and requires 15-day notice prior to discontinuing payment for one or more drugs in a routine, regularly observed regimen of prescription drugs.

Tom Hardy, Director of Medical Review, has determined that for the first five-year period the proposed rules are in effect there may be fiscal implications for state or local governments as a result of enforcing or administering the rule. The added clarification provided by these rules could result in a reduction of disputes, thereby decreasing the cost of enforcement or administration by the commission. Any reduction in costs to the commission cannot be quantified.

Local government and state government as a covered regulated entity will be impacted in the same manner as described later in this preamble for persons required to comply with the rules as proposed.

Mr. Hardy has also determined that for each year of the first five years the rules as proposed are in effect the public benefits anticipated as a result of enforcing the rules will be an improved system for pharmaceutical delivery that will provide positive benefits to all participants in the system. The participants in the system are: injured employees, employers, insurance carriers and health care providers, including pharmacists. Use of a statement of medical necessity should reduce disputes, benefiting all system participants.

The benefits of the proposed new rules to employees are the improved access to pharmaceutical services, including an open formulary and use for off label indications. Clear guidelines will assist pharmacists in participating in the system and should reduce disputes that delay receipt of medications. Employees will also benefit from the requirement for 15-day notice in advance of discontinuing payment for drugs in a routine, regularly observed regimen of prescription drugs. In addition, the proposed new rules provide procedures for employees seeking reimbursement for out-of-pocket monies spent on medications.

The benefits of the proposed new rules to employers is the assurance that their injured employees are receiving appropriate and medically necessary medications in a timely manner for their compensable injury in anticipation of an early release-to-work as appropriate.

Insurance carriers will benefit from the proposed new rules. Clarity in the rules should give carriers the ability to process claims more quickly and pay claims more accurately. Reduction in the number of disputes because of added clarity will also benefit insurance carriers. Increased use of generic and over-the-counter medications will also reduce carrier costs.

Prescribing doctors will benefit from the proposed new rules in that they will have clear guidelines to follow when prescribing medications. Clear guidelines outlining prescribing and reimbursement will assist the prescribing doctor and pharmacist in making decisions and should result in a reduction in disputes. The proposed rules will also encourage pharmacists to provide services for injured employees.

There will be minimal anticipated economic costs to persons who are required to comply with the rules as proposed.

The fiscal impact of the reimbursement methodology and the requirements relating to use of generic drugs and over the counter medications, is difficult to quantify because the commission does not receive data on pharmacy billing and payments. The impact on a pharmacy will vary depending on that pharmacy's current practice of dispensing generics versus name brand drugs, and the pharmacy's profit margin for generics versus name brand drugs. It is anticipated that use of generics and over the counter medications will reduce insurance carrier and system medical costs. Health care providers will have some increased costs in providing statements of medical necessity and required chronic pain treatment plans, but those costs should be off-set by a reduction in the number of disputes. Insurance carriers will experience some increase in payment of medical benefits because of the requirement for 15-day notice prior to discontinuing payment for drugs in a routine, regularly observed regimen of prescription drugs, but this cost should be more than off-set by a reduction in disputes and savings from use of generic drugs and over the counter medications.

There will be no adverse economic impact on small businesses or on micro-businesses as a result of the proposed new rules. There will be no difference in the cost of compliance for small businesses and micro-businesses as compared to large businesses because the same basic processes and procedures apply to all entities regardless of size.

Comments on the proposal must be received by 5:00 p.m., October 1, 2001. You may comment via the Internet by accessing the commission's website at www.twcc.state.tx.us and then clicking on "Proposed Rules." This medium for commenting will help you organize your comments by rule chapter. You may also comment by emailing your comments to RuleComments@twcc.state.tx.us or by mailing or delivering your comments to Nell Cheslock at the Office of the General Counsel, Mailstop #4-D, Texas Workers' Compensation Commission, Southfield Building, 4000 South IH-35, Austin, Texas 78704-7491.

Commenters are requested to clearly identify by number the specific rule and paragraph commented upon. The commission may not be able to respond to comments that cannot be linked to a particular proposed rule. Along with your comment, it is suggested that you include the reasoning for the comment in order for commission staff to fully evaluate your recommendations.

Based upon various considerations, including comments received and the staff's or commissioners' review of those comments, or based upon the commissioners' action at the public meeting, the rule as adopted may be revised from the rule as proposed in whole or in part. Persons in support of the rule as proposed, in whole or in part, may wish to comment to that effect. Commenters may wish to express their opinion regarding an employee's ability to refuse a generic prescription, and include references to statutory authority supporting that opinion.

A public hearing on this proposal will be held on October 2, 2001, at the Austin central office of the commission (Southfield Building, 4000 South IH-35, Austin, Texas). Those persons interested in attending the public hearing should contact the commission's Office of Executive Communication at (512) 440-5690 to confirm the date, time, and location of the public hearing for this proposal. The public hearing schedule will also be available on the commission's website at www.twcc.state.tx.us.

The proposed new rules are proposed under the following statutes: the Texas Labor Code §402.042, that authorizes the Executive Director to enter orders as authorized by the statute as well as to prescribe the form and manner and procedure for transmission of information to the commission; the Texas Labor Code §402.061, which authorizes the commission to adopt rules necessary to administer the Act; the Texas Labor Code §406.010, that authorizes the commission to adopt rules necessary to specify the requirements for carriers to provide claims service and establishes that a person commits a violation if the person violates a rule adopted under this section; the Texas Labor Code §408.021(a), that states an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed; the Texas Labor Code §408.025, that requires the commission to specify by rule what reports a health care provider is required to file; the Texas Labor Code §408.028, as passed by the 77th Texas Legislature, that requires health care practitioners providing care to an employee to prescribe any necessary prescription drugs in accordance with applicable state law; the Texas Labor Code §413.002, that requires the commission to monitor health care providers and insurance carriers to ensure compliance with commission rules relating to health care including medical policies and fee guidelines; the Texas Labor Code §413.011, as passed by the 77th Texas Legislature, that requires the commission by rule to establish medical policies and guidelines relating to necessary treatments for injuries, and fees, designed to ensure the quality of medical care and to achieve effective medical cost control; the Texas Labor Code §413.012, that requires the commission to review and revise medical policies and fee guidelines at least every two years to reflect current medical treatment and fees that are reasonable and necessary; the Texas Labor Code §413.013 (1) (2) and (3), that require the commission by rule to establish a program for prospective, concurrent, and retrospective review and resolution of a dispute regarding health care treatments and services; a program for the systematic monitoring of the necessity of the treatments administered and fees charged and paid for medical treatments or services including the authorization of prospective, concurrent or retrospective review under the medical policies of the commission to ensure the medical policies and guidelines are not exceeded; and a program to detect practices and patterns by insurance carriers in unreasonably denying authorization of payment for medical services requested or performed if authorization is required by the medical policies of the commission; the Texas Labor Code §413.0141, as passed by the 77th Texas Legislature, regarding initial pharmaceutical coverage; the Texas Labor Code §413.017, that establishes presumption of reasonableness of medical services; the Texas Labor Code §413.031, as passed by the 77th Texas Legislature, that entitles a party, including a health care provider, to a review of a medical service for which authorization for payment has been denied or reduced; the Texas Labor Code §415.002, that establishes an administrative violation for an insurance carrier to: unreasonably dispute the reasonableness and necessity of health care, to violate a commission rule or to fail to comply with the Act; the Texas Labor Code §415.003, as passed by the 77th Texas Legislature, that establishes an administrative violation for a health care provider to: administer improper, unreasonable, or medically unnecessary treatment or services, to violate a commission rule, or to fail to comply with the act; and the Texas Labor Code §415.0035, that establishes an administrative violation for an insurance carrier to deny preauthorization in a manner that is not in accordance with commission rules.

The new rules affect the following statutes: Texas Labor Code §402.042, that authorizes the Executive Director to enter orders as authorized by the statute as well as to prescribe the form and manner and procedure for transmission of information to the commission; the Texas Labor Code §402.061, which authorizes the commission to adopt rules necessary to administer the Act; the Texas Labor Code §406.010, that authorizes the commission to adopt rules necessary to specify the requirements for carriers to provide claims service and establishes that a person commits a violation if the person violates a rule adopted under this section; the Texas Labor Code §408.021(a), that states an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed; the Texas Labor Code §408.025, that requires the commission to specify by rule what reports a health care provider is required to file; the Texas Labor Code §408.028, as passed by the 77th Texas Legislature, that requires health care practitioners providing care to an employee to prescribe any necessary prescription drugs in accordance with applicable state law; the Texas Labor Code §413.002, that requires the commission to monitor health care providers and insurance carriers to ensure compliance with commission rules relating to health care including medical policies and fee guidelines; the Texas Labor Code §413.011, as passed by the 77th Texas Legislature, that requires the commission by rule to establish medical policies and guidelines relating to necessary treatments for injuries, and fees, designed to ensure the quality of medical care and to achieve effective medical cost control; the Texas Labor Code §413.012, that requires the commission to review and revise medical policies and fee guidelines at least every two years to reflect current medical treatment and fees that are reasonable and necessary; the Texas Labor Code §413.013 (1) (2) and (3), that require the commission by rule to establish a program for prospective, concurrent, and retrospective review and resolution of a dispute regarding health care treatments and services; a program for the systematic monitoring of the necessity of the treatments administered and fees charged and paid for medical treatments or services including the authorization of prospective, concurrent or retrospective review under the medical policies of the commission to ensure the medical policies and guidelines are not exceeded; and a program to detect practices and patterns by insurance carriers in unreasonably denying authorization of payment for medical services requested or performed if authorization is required by the medical policies of the commission; the Texas Labor Code §413.0141, as passed by the 77th Texas Legislature, regarding initial pharmaceutical coverage; the Texas Labor Code §413.017, that establishes presumption of reasonableness of medical services; the Texas Labor Code §413.031, as passed by the 77th Texas Legislature, that entitles a party, including a health care provider, to a review of a medical service for which authorization for payment has been denied or reduced; the Texas Labor Code §415.002, that establishes an administrative violation for an insurance carrier to: unreasonably dispute the reasonableness and necessity of health care, to violate a commission rule or to fail to comply with the Act; the Texas Labor Code §415.003, as passed by the 77th Texas Legislature, that establishes an administrative violation for a health care provider to: administer improper, unreasonable, or medically unnecessary treatment or services, to violate a commission rule, or to fail to comply with the act; and the Texas Labor Code §415.0035, that establishes an administrative violation for an insurance carrier to deny preauthorization in a manner that is not in accordance with commission rules.
§134.500.Definitions.

(a) The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:

(1) Compounding- The preparation, mixing, assembling, packaging, and labeling of a drug or device.

(2) Statement of Medical Necessity- A written statement or documentation from the prescribing doctor to establish the medical necessity of a treatment or service, device, or prescription, including the medical necessity for a brand name drug, where applicable.

(3) Nonprescription drug or over the counter medication- A non-narcotic drug or delivery device that may be sold without a prescription and that is labeled and packaged in compliance with state or federal law.

(4) Open formulary- Includes all available Food and Drug Administration (FDA) approved prescription and nonprescription drugs, but does not include drugs that lack FDA approval, or non-drug items such as nutritional supplements.

(5) Prescribing doctor- a doctor who prescribes prescription drugs or over the counter medications in accordance with the doctor's license and state and federal laws and rules.

(6) Prescription- An order from a doctor to a pharmacist for a prescription drug, medical delivery device, or nonprescription drug to be dispensed.

(7) Prescription drug-

(A) A substance for which federal or state law requires a prescription before the substance may be legally dispensed to the public;

(B) A drug or device that under federal law is required, before being dispensed or delivered, to be labeled with the statement, "Caution: federal law prohibits dispensing without prescription"; or,

(C) A drug or device that is required by federal or state statute or regulation to be dispensed on prescription or that is restricted to use by a prescribing doctor only.

(b) This rule applies to all prescriptions that are prescribed on or after March 1, 2002.
§134.502.Pharmaceutical Services.

(a) A doctor providing care to an injured employee shall prescribe for the employee necessary prescription drugs and over-the-counter medication (OTC) alternatives as clinically appropriate and applicable in accordance with applicable state law and as provided by this section.

(1) It shall be indicated on the prescription that the prescription is related to a workers' compensation claim.

(2) When prescribing an OTC alternative to a prescription drug, the doctor shall indicate on the prescription the appropriate strength of the medication and the approximate quantity of the OTC medication that is reasonably required by the nature of the compensable injury.

(3) The doctor shall prescribe generic prescription drugs when available and clinically appropriate. If in the medical judgment of the prescribing doctor a brand-name drug is necessary, the doctor must specify on the prescription that brand-name drugs be dispensed in accordance with applicable state and federal law, and must maintain documentation justifying the use of the brand-name drug, in the patient's medical record.

(4) The doctor shall prescribe OTC medications in lieu of a prescription drug when clinically appropriate.

(b) When prescribing, the doctor shall comply with the formulary adopted by the commission.

(c) The pharmacist shall dispense no more than a 30-day supply of a prescription drug.

(d) Health care providers shall submit bills for pharmacy services in accordance with commission Rule 134.800 (d).

(1) Health care providers shall bill using national drug codes (NDC) when billing for prescription drugs.

(2) Compound drugs shall be billed by listing each drug included in the compound and calculating the charge for each drug separately.

(3) A pharmacy may contract with a separate person or entity to process bills and payments for a medical service; however, these entities are subject to the direction of the pharmacy and the pharmacy is responsible for the acts and omissions of the person or entity.

(4) Except as allowed by Texas Labor Code § 413.042, the injured employee shall not be billed for pharmacy services.

(e) If an insurance carrier has questions about the relatedness of a prescription to the compensable injury or the use of brand-name prescription drugs, the carrier may request a statement of medical necessity from the prescribing doctor.

(f) The doctor shall provide a statement of medical necessity no later than the 14th working day after receipt of request. The statement of medical necessity shall include the following information:

(1) Employee's name and social security number or TWCC number;

(2) Cause of injury;

(3) Employee's current condition;

(4) Treatment, service, or medication recommended;

(5) How treatment, service, or medication is related to the compensable injury;

(6) Duration of treatment, service, or medication;

(7) Expected outcome; and,

(8) Reasons for prescribing brand name prescription drug, if applicable.
§134.503.Reimbursement Methodology.

(a) The maximum allowable reimbursement (MAR) for prescription drugs shall be the lesser of:

(1) The provider's usual and customary charge for the same or similar service;

(2) The fees established by the following formulas based on the average wholesale price (AWP) determined by utilizing a nationally recognized pharmaceutical reimbursement system (e.g. Redbook, First Data Bank Services) in effect on the day the prescription drug is dispensed.

(A) Brand name or Generic Pharmaceuticals: [(AWP per unit) x (number of units) x 1.25] + $4.00 dispensing fee = MAR;

(B) A compounding fee of $30 per compound shall be added for compound drugs; or,

(3) A negotiated or contract amount.

(b) When the doctor has written a prescription for a generic prescription drug or a prescription that does not require the use of a brand-name drug, in accordance with rule 134.502 (a)(3), the pharmacist shall dispense and be reimbursed for the generic pharmaceutical medication.

(c) Reimbursement for over the counter drugs shall be the reasonable retail value.

(d) This section applies to the dispensing of all drugs except inpatient drugs and parenteral drugs.

(e) The insurance carrier shall update drug and supply pricing data at least every 30 days. Upon request by the provider, the insurance carrier shall disclose the source of the AWP used.
§134.504.Pharmaceutical Expenses Incurred by the Injured Employee.

(a) It may become necessary for an injured employee to purchase prescription drugs or over-the-counter alternatives to prescription drugs prescribed or ordered by the treating doctor or referral health care provider. In such instances the injured employee may request reimbursement from the insurance carrier by submitting a request to the carrier.

(b) The injured employee shall submit to the insurance carrier a letter requesting reimbursement along with a receipt indicating amount paid and a copy of the prescription. The letter should include information to clearly identify the claimant such as the claimant's name, address, date of injury, and social security number.

(c) The insurance carrier shall make appropriate payment to the injured employee in accordance with commission Rule 134.503, or notify the injured employee of a reduction or denial of the payment within 45 days of receipt of the request for reimbursement from the injured employee. If the insurance carrier does not reimburse the full amount requested, partial payment or denial of payment shall include a full and complete explanation of the reason(s) the insurance carrier reduced or denied the payment and shall inform the injured employee of his or her right to request medical dispute resolution in accordance with §133.305 of this title (relating to Medical Dispute Resolution). The statement shall include sufficient claim-specific substantive information to enable the employee to understand the insurance carrier's position and/or action on the claim. A general statement that simply states the carrier's position with a phrase such as "not entitled to reimbursement" or a similar phrase with no further description of the factual basis does not satisfy the requirements of this section.
§134.505.Chronic Pain Prescriptions.

(a) Chronic, non-cancer pain may develop after an acute injury episode. It is defined as any pain that typically persists beyond two to four months following the injury. The carrier shall pay for opioids for the treatment of chronic, non-cancer pain caused by a compensable injury when that treatment is reasonable and medically necessary.

(b) No later than thirty days after the treating doctor begins treating the injured employee with opioids for chronic, non-cancer pain, the treating doctor shall submit a written report to the carrier in order for the carrier to pay for such treatment. The written report must include the following:

(1) A treatment plan with time-limited goals;

(2) A consideration of relevant prior medical history;

(3) A summary of conservative care rendered to the employee that focused on reactivation and return to work;

(4) A statement on why prior or alternative conservative measures may have failed or are not appropriate as sole treatment;

(5) A statement of any consultations that have been obtained, particularly those that have addressed factors that may be barriers to recovery;

(6) A statement that the treating doctor has conducted appropriate screening for factors that may significantly increase the risk of abuse or adverse outcomes (e.g., a history of alcohol or other substance abuse); and,

(7) An opioid treatment plan that has been signed by the employee and the treating doctor. This plan must be renewed every six months. The treatment plan must outline the risks and benefits of opioid use, the conditions under which opioids will be prescribed, the physician's need to document overall improvement in pain and function, and the employee's responsibilities.

(c) In addition to documentation required by the carrier, the treating doctor must submit to the carrier the following information at least every sixty days when treating with opioids:

(1) Documentation of drug screening, consultations, and all other treatment trials;

(2) Documentation of outcomes and responses, including pain intensity and functional levels; and

(3) Any modifications to the treatment plan.

(d) The carrier shall continue to pay for treatment with opioids so long as the prescribing doctor documents substantial reduction of the patient's pain intensity, and continuing substantial improvement in the patient's function. Opioid treatment for chronic, non-cancer pain past the first three months of such treatment without documentation of substantial improvement is presumed to be not reasonable or medically necessary.

(e) Payment for opioid medications shall be denied in any of the following circumstances:

(1) Absent or inadequate documentation;

(2) Non-compliance with the treatment plan; or

(3) Evidence of misuse or abuse of the opioid medication or other drugs, or noncompliance with the treating doctor's request for a drug screen.

(f) The carrier shall pay for non-opioid treatment for chronic, non-cancer pain when it is reasonable and medically necessary. For example, some drugs such as anti-convulsants, anti-depressants, and others have been demonstrated to be useful in the treatment of chronic pain and may be approved when reasonable and medically necessary.
§134.506.Outpatient Drug Formulary.

(a) The commission hereby adopts an open formulary as defined in Section 134.500(a)(4). The carrier shall pay for drugs that are reasonable and medically necessary to treat the compensable injury or occupational disease. The insurance carrier may pay for prescriptions for off label indications when used in accordance with current medical standards and prescribed in compliance with published contradictions, precautions, and warnings.

(1) Over-the-counter medications with a prescription shall be reimbursed.

(2) The carrier may consider temporary coverage of prescriptions for conditions not related to the compensable injury when such medications are necessary to promote recovery of the compensable injury.

(b) The carrier shall pay for detoxification and/or chemical dependency treatment in the following circumstances:

(1) The injured employee becomes dependent or toxic due to medication prescribed for a compensable injury;

(2) The injured employee becomes dependent or toxic due to medications prescribed for a condition not related to the compensable injury in order to promote recovery of the compensable injury; or,

(3) The injured employee is dependent or toxic due to medications for an unrelated condition, but that dependency or toxicity is retarding recovery of the compensable injury.

(c) Additional Information:

(1) When a spinal cord injury is the compensable injury, the carrier may authorize payment for anti-spasticity medication by any indicated route of administration.

(2) Prescriptions for injectable opioids or other injectable analgesics, sedatives, antihistamines, tranquilizers, psychotropics, vitamins, minerals, food supplements, and hormones are not routinely reimbursed.

(3) The carrier may pay for injectable medications under the following circumstances:

(A) Inpatients;

(B) During emergency treatment of a life-threatening condition/injury;

(C) During outpatient treatment of severe soft tissue injuries, burns, or fractures when needed for dressing or cast changes; or,

(D) During the preoperative period and the postoperative period, not to exceed forty-eight hours from the time of discharge.

(4) The carrier may pay for prescriptions of injectable insulin, heparin, anti-migraine medications, or impotency treatment, when reasonable and medically necessary.

(5) Payment of prescriptions for benzodiazepines are limited to the following types of patients:

(A) Hospitalized patients;

(B) Claimants with an accepted psychiatric disorder for which benzodiazepines are indicated;

(C) Claimants with an unrelated psychiatric disorder that is retarding recovery but which the carrier has temporarily authorized treatment and for which benzodiazepines are indicated; and,

(D) Other outpatients for not more than thirty days over the life of the claim.

(6) When cancer or any other end-stage disease is the compensable injury, the carrier may authorize payment for any indicated scheduled drug and by any indicated route of administration.

(d) The carrier may take any or all of the following steps when concerned about the amount or appropriateness of drugs the patient is receiving:

(1) Notify the prescribing doctor, injured employee, and pharmacy of concerns regarding the medications such as drug interactions, adverse reactions, and prescriptions by other providers;

(2) Require that the prescribing doctor send a statement of medical necessity addressing the drug concerns;

(3) Request a consultation from a required medical exam (RME) doctor;

(4) Request that the prescribing doctor consider reducing the prescription and provide information on chemical dependency programs; or,

(5) Limit the payment for drugs on a claim to one prescribing doctor.

(e) When a doctor has placed an injured employee on a routine, regularly observed regimen of prescription drugs, the carrier may only discontinue payment for one or more drugs in the regimen after adequate prior notification of 15 days has been given to the employee, pharmacy, and doctor. The commission may prescribe the form and manner of notification.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 20, 2001.
TRD-200104908

Susan Cory

General Counsel

Texas Workers' Compensation Commission

Earliest possible date of adoption: September 30, 2001

For further information, please call: (512) 804-4287

Chapter 180. MONITORING AND ENFORCEMENT

The Texas Workers' Compensation Commission (the commission) proposes amendments to §180.1 and §180.7 and new §180.2 and §§180.20 - 180.27. The proposal includes changing the title of Chapter 180 to "Monitoring and Enforcement" to reflect the broader nature of the subject matter and because monitoring and enforcement activities are shared among different parts of the agency and are not only concentrated in the Compliance and Practices Division.

The Texas Register published text shows the proposed amended and new language and should be read to determine all proposed changes. As used in this preamble the term "Statute" refers to the Texas Worker Compensation Act including any and all amendments to it by the Texas Legislature and the term "Rules" means the Rules adopted by the commission as authorized by Texas Labor Code §402.061.

House Bill 2600 (HB-2600), passed by the 77th Texas Legislature in its 2001 session, made numerous amendments to the Texas Labor Code. Many of these changes related to regulating medical benefit delivery by: changing the commission's approved doctor list (ADL) and application process (including mandated training); changing the grounds under which the commission can issue sanctions (as well as expanding the sanctions); adding a Medical Advisor to the commission staff and Medical Quality Review Panel (QRP), and providing for expanded financial disclosure and prohibiting inappropriate referral fees, kickbacks, or other financial incentives.

To implement these changes, the commission examined its existing rules and found that most of the provisions relating to general regulation of doctors and health care are spread out among several Chapters (126, 133, and 134 in particular). Given the scope of changes to be made and to simplify usage, the commission is proposing to move these provisions to Chapter 180. The commission's Medical Advisor provided recommendations regarding these rules.

In doing this, though many of the proposed rules in Chapter 180 are technically "new rules," most of them relocate provisions that the commission currently has in place in other Chapters. This preamble identifies the current rules proposed to be replaced and discusses the way the proposed rules differ from the current ones.

The amendments and additions proposed for Chapter 180 are based upon legislative changes provided in Articles 1 and 6 of HB-2600. Chief among the changes is that admission to the ADL now requires a doctor to apply and meet specified criteria. Prior to this change, admission to the ADL was automatic upon receiving a license. Now doctors will be required to take training and register to be on the list. In addition, the commission has been given the authority to deny or restrict admission based upon factors such as practice restrictions. Approved doctors will be issued certificates of registration that expire if re-training requirements are not met.

Another major change is that HB-2600 now mandates that doctors serving any role in the Texas workers' compensation system be on the ADL. In the past, only treating doctors were required to be on the ADL. Doctors who are not on the ADL will be prohibited from performing services or receiving reimbursement in the Texas workers' compensation system (except in an emergency or for immediate post-injury medical care).

HB-2600 also mandates that the commission set up modified training and registration requirements for certain types of doctors such as those who do not participate in the Texas workers' compensation system at a high volume or those who only perform peer reviews and utilization review (UR). Doctors from other states are permitted to be on the ADL. However, out of state doctors who review health care services (such as though utilization review or peer reviews) are required to be supervised by a doctor licensed in Texas.

HB-2600 requires that the commission collect information about treating doctors regarding return to work outcomes, patient satisfaction, and cost and utilization of health care in order to promote quality of care and best practices. The commission previously collected information on cost and utilization of care but this was based upon the person providing the care and who was not necessarily the treating doctor for the claim. This information will be important over time because HB-2600 makes major changes to the way the commission regulates doctors on the ADL.

As a simplification, HB-2600 now mandates that the Executive Director remove doctors from the list who fail to register with the commission, who are deceased, whose license to practice has been revoked, suspended, or not renewed by the appropriate licensing authority, or who requests to be removed. Previously, removal under these circumstances required commissioner approval.

The commission's authority to address activities not in full compliance with the law or not representative of quality care has been greatly expanded. Both the grounds for taking action and the actions the commission is authorized to take are broader than under the previous statute.

To help evaluate behavior by doctors and carriers (as relates to medical benefit delivery), HB-2600 created an official Medical Advisor position that is imbued with specific authority and responsibilities. Also created was the QRP which functions to support the Medical Advisor in reviewing the conduct of doctors and carriers relating to medical benefit delivery.

As another measure to control costs, HB-2600 requires the commission to adopt a definition of financial interest consistent with analogous federal regulations and to adopt the federal standards that prohibit the payment or acceptance of payment in exchange for referrals.

Finally, HB-2600 clarifies the commission's enforcement authority with regard to violations of the Statute and Rules that don't carry a specific violation class. For example, Texas Labor Code §408.027 requires carriers to pay or dispute medical bills within 45 days but doesn't specify what class administrative violation it is if a carrier fails to meet this requirement. The language in Article 6 clarifies that actions such as this constitute administrative violations.

It is these mandates that are the primary motivation for the changes proposed in Chapter 180. First, the commission proposes placing the existing rules in Chapter 180 under the general subchapter heading "General Rules For Enforcement". The proposed changes to this newly labeled subchapter include: amendments to §180.1 (relating to Definitions); addition of §180.2 (relating to Referrals, Confidentiality); and amendments to §180.7 (relating to Date Administrative Violation Deemed to Have Occurred).

The commission also proposes the addition of "Subchapter B. Medical Benefits Regulation". Within this subchapter the commission proposes relocating concepts currently contained in rules in Chapters 126, 133, and 134 relating to the ADL, the Designated Doctor List (DDL), financial disclosure, and the responsibilities of treating, referral, and consulting doctors. Specifically, the commission proposes eight new rules in this subchapter: §180.20 (relating to Application for Registration/commission Approved Doctor List); §180.21 (relating to commission Designated Doctor List); §180.22 (relating to Health Care Provider Roles and Responsibilities); §180.23 (relating to Commission Required Training for Doctors/Certification Levels); §180.24 (relating to Financial Disclosure); §180.25 (relating to Improper Inducements); §180.26 (relating to Doctor and Insurance Carrier Sanctions); and §180.27 (relating to Sanctions Process/Appeals/Restoration/Reinstatement).

These rules will replace all or parts of the following current rules: §126.8 (relating to Commission Approved Doctor List); §126.10 (relating to Commission Approved List of Designated Doctors); §133.3 (relating to Responsibilities of Treating Doctor) §133.4 (relating to Consulting and Referral Doctors); §134.100 (relating to Provider Disclosure of Financial Interest, Submission to the Commission); and §134.101 (relating to Provider Disclosure of Financial Interest, Submission to the Carrier). Amendment and repeal of those rules are included in separate preambles.

Proposed Amendment to §180.1--Definitions

Proposed amendments to §180.1 primarily involve adding new definitions used by new and amended rules. In addition, amendments are proposed to the existing definitions.

The commission is proposing a broad definition of "conviction" or "convicted" to ensure that a relevant conviction (including those resulting from procedures such as plea agreements) can be used as grounds for sanction of a doctor. The intent is that the conduct for which a person is convicted serves as the grounds for the sanction. Regardless of whether or not there is a conviction by jury or judge, if it is determined that the conduct occurred and is relevant, can be used by the commission to issue sanctions.

"Emergency" is defined by reference to the definition in §133.1 of this title (relating to Definitions) to maintain consistency with other portions of the Rules.

The terms "wilful", "intentional", and "knowingly" are proposed to be given individual definitions in the rule rather than referencing the Texas Penal Code as in the current rule. There is no definition of "wilful" in the penal code. Therefore, one has been added to make that term effective. The definitions of intentional and knowingly are proposed to remain consistent to their definitions in the penal code but are set out in this rule for easier reference.

"Wilfully" is being proposed to mean "knowingly or intentionally". However, it is also proposed that a something is wilful even if it was originally accidental, if it continues after the person was made aware of the noncompliance.

"Significant Violation" is proposed as a way to differentiate between violations that require recommending deletion from the ADL and violations that the commission can address through other sanctions.

A definition of "Uncorrected Pattern of Practice" is being proposed as it is one of the ways a violation can be deemed to be a "Significant Violation".

"Continued noncompliance" is proposed to be defined to help differentiate between a violation where the act was tied to a specific period and a violation that is continuing (thus requiring some action or change in behavior to bring conduct out of continued noncompliance).

Other definitions the commission is proposing include: "Abusive Practice", "Administrative Law Judge", "Agent", "Charged Person", "Compliance", "Controlled Substances", "Noncompliance or Noncompliant Act", "Remuneration", "System Participant", "Violation", and "Violator".

In addition, the commission proposes abbreviations for "commission Rules" ("Rules"), "State Office of Administrative Hearings" ("SOAH"). The "Texas Workers' Compensation Act" is referred to as "the Statute" in accordance with §102.7 (relating to Abbreviations) in order to simplify and shorten the rules. These abbreviations are used in this preamble as well.

Proposed New §180.2--Referrals

The commission proposes adding new §180.2 to note that any person may make a referral to the commission for fraudulent acts or omissions, failure of a health care provider or insurance carrier to provide or ensure quality medical care, or for other violations of the Texas Workers' Compensation Act or commission rules.

Proposed Amendment to §180.7--Date Administrative Violation Deemed to Have Occurred--(Proposed to be retitled: Date Violation Deemed to Have Occurred; Establishing Wilful Violations)

The commission proposes two amendments to this rule. First, as noted, HB-2600 clarifies that the commission can enforce statutory requirements where no specific administrative violation class is listed. The commission proposes amending §180.7 to be consistent by changing "administrative violation" to "violation".

In addition, language is proposed to be added that helps the commission establish the existence of a wilful violation. The proposed language is consistent with the definition in proposed §180.1.

Proposed New §180.20--Application for Registration/Commission Approved Doctor List

HB-2600 mandates that the commission develop a list of doctors who are licensed in this state and approved to provide health care under the Statute. HB-2600 also provides that the commission establish by rule requirements regarding application and registration, training, and impairment rating testing. The requirements shall apply to doctors and other health care providers who provide health care services as treating doctors, referral doctors, consulting doctors, required medical exam doctors, peer review doctors, utilization review doctors, designated doctors, and Medical Quality Review Panel doctors.

HB-2600 requires the commission to adopt rules to implement the new ADL not later than February 1, 2002. It further requires the commission to set a date (not to exceed 18 months from the date of adoption) after which doctors must have complied with the new registration and training requirements imposed by the rules. The commission is proposing this effective date be August 1, 2003.

Currently, the only requirement to be included on the ADL is that the doctor must be licensed in this state or licensed in another jurisdiction. Proposed §180.20 replaces subsections (a) - (c) of §126.8 after August 1, 2003 when the new ADL is in place, and lays out the application process and registration requirements to be included on the ADL, as required by HB-2600.

Proposed subsection (a) maintains the requirement in §126.8 that a doctor providing medical treatment to an employee be on the ADL except in the case of an emergency. In addition, as a result of HB-2600, a doctor providing immediate post-injury medical care does not have to be on the ADL either. A more significant change resulting from HB-2600 is the requirement that not just treating doctors be on the ADL. Now doctors serving in any capacity within the system (other than for emergency or immediate post-injury care) be on the list.

The proposed language explains that immediate post-injury care is that care that is provided when the employee first seeks medical attention for the workers' compensation injury or illness. The intent is not that this care be tied until a specific time-frame because the employee might not realize they need medical attention immediately following the injury or might not realize they have a worker related illness. However, once they have initially sought medical attention, they will have to receive all future care from a doctor on the ADL. The language is also written without a timeframe tied to it so that in cases where an employee's injury is significant enough to require immediate hospitalization, the employee is not expected to start treatment with one doctor and then switch doctors while in the middle of a stay in the hospital.

Proposed subsection (b) explains that a doctor licensed in this state or in another jurisdiction may apply to be included on the ADL by completing required training, applying for registration, and disclosing financial interests. These minimal requirements are included in HB-2600.

Proposed subsection (c) clarifies the information required in an application to the ADL which is information currently required in an application to the ADL, but not addressed by rule. With the additional discretion that HB-2600 provides the commission, additional information is needed for evaluation and tracking. These additional items will include: the certificate of training indicating the level of training completed (necessary to establish the doctor's certification level under §180.23), impairment rating test score (if applicable), verification of licensure, disciplinary actions or practice restrictions (which can serve as grounds for denial of a request to be put on the ADL), and a signed affidavit of sponsorship by a doctor on the ADL agreeing to supervise a doctor licensed in another jurisdiction, performing peer review or utilization review of medical services for Texas workers' compensation (HB-2600 requires doctors licensed out of state and who wish to perform work for a utilization review agent (URA) to do so under the supervision of a doctor licensed in this state).

In addition, the commission believes that it needs the ability to quickly contact doctors on the ADL to provide important information on a timely basis. Therefore, the commission is proposing in this subsection that doctors be required to provide the commission with an e-mail address through which the commission can contact them. The commission believes that it is not unreasonable to expect doctors to have internet access. Given the August 1, 2003 date, doctors won't actually be required to have an email address for more than 18 months which gives them plenty of time to set up internet access.

Proposed subsection (d) states that the commission may utilize the Medical Quality Review Panel set-up by HB-2600 for evaluating ADL applications and making recommendations to the Medical Advisor to approve or deny admission to the ADL.

Proposed subsection (e) gives the reasons a doctor may be denied admission to the ADL or admitted with conditions or restrictions, as provided by HB-2600. The reasons include failing to submit a complete application or complete the required training, having relevant practice restrictions or other activities which warrant denial including but not limited to grounds that would allow deletion or sanction of the doctor under §180.26. The clear intent of much of the language in Article 1 of HB-2600 is for the commission to better regulate the ADL and prevent it from being populated with doctors whose patterns of practice are outside of professionally recognized standards of care

Proposed subsection (f) states that the commission shall notify a doctor of approval or denial of the doctor's application to the ADL and reasons for denial. The notification of a denial shall be by verifiable means. This proposed subsection also gives the doctor 14 days after receiving a denial from the commission to respond to the reasons for denial. As in other rules, the term "verifiable means" is used to allow the commission the flexibility to use new and cheaper means of sending notices in such a way the can confirm delivery other than using certified mail.

As noted, the requirements relating to the new ADL shall be effective August 1, 2003. Therefore, proposed subsection (g) provides for the deletion from the ADL of all doctors previously on the ADL upon the earlier of either the date the doctor applies for and is denied approval or August 1, 2003 (if the doctor failed to register and be approved prior to that date).

Proposed subsection (h) states that a carrier may not withhold reimbursement to a doctor licensed in another jurisdiction solely because the doctor was not on the ADL at the time the care was provided, unless the doctor was removed from the ADL by the commission. This is largely the same as the requirements in current §126.8(b). However, §180.20 will limit this concept to a doctor who treats or evaluates 12 or fewer injured employees in a twelve month period (low-volume), provides care in an emergency, or provides immediate post-injury care, as provided by HB-2600.

Currently the commission makes available information relating to actions it has taken regarding the ADL. Current §126.8(c) requires the commission to provide the names of doctors deleted, reinstated or added to the ADL from other jurisdictions. Proposed subsection (i) would require the commission to provide similar information via its website. This will help ensure ready access to the ADL and to information of the commission's activities regarding the list.

Proposed subsection (j) requires a doctor on the ADL to provide the commission with any change in information provided in the doctor's application, within 30 days of the change in information. This is necessary for the maintenance of an accurate ADL database. The commission currently has great difficulty contacting doctors on the ADL because there is no requirement for doctors to provide the commission with accurate contact information. This often results in mail being returned to the commission and necessitates that staff manually attempt to verify information.

Add New §180.21--Commission Designated Doctor List Proposed §180.21 sets out requirements for a doctor applying to become a designated doctor for the commission and replaces §126.10. These requirements are general to all designated doctors regardless of the purpose of the examination. Requirements for specific designated doctor examinations will be addressed in individual rules addressing the specific purpose of the exam.

Proposed subsection (a) maintains the requirement that in order to serve as a designated doctor the doctor must be on the Designated Doctor List (DDL).

Proposed subsection (b) includes the requirements for being admitted to the DDL prior to August 1, 2003 and they are essentially the same as those currently in §126.10 with the clarification that an "active practice" is at least 20 hours per week of treating patients. This definition is not currently in §126.10 but was taken from the Texas Insurance Code and is the standard that the commission currently uses.

Proposed subsection (c) addresses the same requirements in subsection (b) for being approved to be on the DDL after August 1, 2003, but changes the three years of active practice to one year, and adds that the doctor must have an ADL Level 3 Certification under §180.23. The reason for the change from 3 years of active practice to 1 year is based upon the fact that 1 year of active practice is generally enough to allow for board certification.

Proposed subsection (d) explains that a doctor who is on the current DDL and fails to apply in accordance with this section, or applies but is not approved under subsections (f) - (h) of this section, shall be deleted from the DDL on the earlier of the date of the denial, or August 1, 2003. This is largely the same as the requirement in proposed §180.20(i).

Proposed subsection (e) lists the information required in an application to the DDL, which is general contact information, training certificate, Impairment Rating Skills Examination score, license verification, and any disciplinary actions or practice restrictions. The requirements under this subsection are again essentially the same as the requirements of proposed §180.20(c).

Proposed subsection (f) states that the commission may utilize the Medical Quality Review Panel to evaluate the DDL applications and make recommendations to the Medical Advisor to approve or deny an application. This matches the provisions of proposed §180.20(d).

Proposed subsection (g) lists the reasons a doctor may be denied admission to the DDL. These reasons are nearly identical to those proposed in §180.20 with a few exceptions. For example, a doctor could be denied for not being on the ADL or for having ADL restrictions. Another example is that a doctor could be denied for having failed the required examination.

Proposed subsection (h) explains that the commission shall notify doctor of the approval or denial of the application to the DDL and reasons for denial and that the commission will notify the doctor by verifiable means of a denial and gives the doctor 14 days to respond to the reasons for denial. The intent here is to offer the doctor the opportunity to respond to the commission's reasons for not approving the doctor. The response will be reviewed and, if it appears that the commission's initial recommendation to deny the application was in error, the commission will notify the doctor of the approval. Otherwise, the commission will provide a response to the doctor's rebuttal and explain why the denial is being upheld.

As proposed, subsection (i) allows the commission to waive any of the requirements stated in this section for an out-of-state doctor to serve as a designated doctor in order to facilitate the timely resolution of a dispute. This concept is taken from current §126.10 and is supported by HB-2600, which allows the commission to waive requirements to ensure access to care and evaluations (particularly for out-of-state cases).

Proposed subsection (j) states that the commission shall make available on its website the names of doctors on the DDL, and the names of doctors deleted, reinstated, and added from other jurisdictions. This will help ensure ready access to the DDL and to information of the commission's activities regarding the list.

Proposed subsection (k) requires the doctor to notify the commission of any change in information provided in the doctor's application to the DDL within 30 days of the change. This requirement and the reasons for it are the same as those for the ADL.

Proposed subsection (l) lays out grounds that the commission may use to suspend or delete a doctor from the DDL. Currently these requirements are contained in §126.10(l). In general, proposed §180.26 lays out the grounds for deletion from the ADL or imposing other sanctions on a doctor. Rather than repeating those grounds in this rule, the commission proposes referencing the grounds in §180.26 here in this rule and adding to them a list of DDL-specific grounds. The additional grounds are largely similar to the grounds currently listed in §126.10(l).

Proposed subsection (m) explains that notification and appeal of a sanction is governed by §180.27 of this title (relating to Sanctions Process/Appeals). This represents a change from the current process in that the current designated doctor deletion/suspension process does not provide for an appeal to the State Office of Administrative Hearings (SOAH). Rather, such appeals are handled via an administrative review (not unlike the method proposed to be used for reviewing rebuttals to denials of requests for admission to the DDL). The reason for the change is that HB-2600 lists deletion from the DDL as a sanction that the commission can impose after the opportunity for a hearing is given. This is a statutory change and thus an opportunity to appeal to SOAH is now guaranteed to designated doctors being suspended or removed from the list.

The subsection also provides that suspension, deletion, or other sanction relating to the DDL shall be in effect during the pendency of any appeal. Given the critical nature of the designated doctor's role and the fact that the doctor's opinion generally has presumptive weight on the matter that the doctor was requested to review, the commission believes that it is not appropriate for a doctor to serve as a designated doctor while questions exist regarding the doctor's eligibility to be on the list.

Add New §180.22--Health Care Provider Roles and Responsibilities

HB-2600 requires that all doctors participating in the Texas workers' compensation system shall be on the ADL, with few exceptions. Proposed §180.22 describes different roles of doctors participating in the system and the responsibilities of those roles. The rule also applies to ancillary health care providers not licensed as doctors.

Currently the commission has the responsibilities of several doctor roles explicitly described by rule (treating doctors in §133.3 and consulting and referral doctors in §133.4). Other doctors, however, are described more via process rules that describe how they are utilized. Although these other rules are important, the commission believes that having one rule which lays out all the roles and responsibilities will help ensure understanding of them. In addition, HB-2600 formally recognizes peer review and utilization review doctors and Medical Quality Review Panel doctors.

Proposed subsection (a) of this section states the primary responsibility of all health care providers (HCP) in the system is to provide reasonable and necessary health care that cures or relieves the effects naturally resulting from the compensable injury, promotes recovery and enhances the employee's ability to return to work. These responsibilities match many of the original goals of the Texas Workers' Compensation Act and subsequent legislation.

Proposed subsection (b) expresses that the HCP must comply with all applicable Statute and Rules, including, the reporting of information, disclosure of financial interests, evaluating impartially, and billing correctly. Though several responsibilities are listed, the list is far from inclusive. The Statute and Rules are filled with individual requirements and prohibitions relating to health care providers that they are expected to comply with.

Proposed subsection (c) explains that the treating doctor is the doctor primarily responsible for the management of the employee's health care related to the compensable injury. These responsibilities are currently found in §133.3, with the additions of communicating with the employer about the employee's ability to return to work with or without restrictions, and reporting work release data, cost and utilization data, and patient satisfaction data required by HB-2600 to be captured by the commission. Not included in this subsection is the requirement of the treating doctor to certify maximum medical improvement (MMI) and assign an impairment rating. This requirement is addressed in Chapter 130 (relating to Benefits-Impairment and Supplemental Income Benefits), which regulate the impairment rating process.

Subsection (d), as proposed, incorporates the description of the consulting doctor responsibilities from §133.4 (relating to Consulting and Referral Doctors) and clarifies them. Although peer review, utilization review, and required medical examination (RME) doctors provide evaluations that are similar to consulting doctors, their responsibilities are listed separately because their roles are slightly different.

Proposed subsection (e) incorporates the description of the referral doctor responsibilities from §133.4.

Proposed subsection (f) addresses the responsibilities of the RME doctor. Currently, these are not addressed by rule, but are generally recognized by the commission and other system participants. The responsibilities for the RME doctor are the same as the responsibilities for the consulting doctor addressed in proposed subsection (e) of this section but RME doctors perform examinations at the request of the carrier or the commission. In addition, employees are required to attend RMEs whether by order of the commission or agreement with the carrier made in accordance with commission rule.

Proposed subsection (g) addresses peer review doctors as formal participants in the system. As proposed, the role of the peer review doctor is to evaluate health care services and patient care, including the qualifications of professional health care practitioners providing those services and care. Providing this description by rule is consistent with the provisions in HB-2600. Peer reviews are generally conducted without benefit of an examination of the employee but rather are reviews of medical reports and other chart information.

Proposed subsection (h) describes the role and responsibilities of the utilization review doctor. The utilization review doctor reviews medical care either prospectively, concurrently, or retrospectively for medical necessity. Like the peer review doctor, utilization review doctors generally perform their evaluations without an examination of the employee and base their opinions on medical documentation submitted with a medical bill or with a request for preauthorization, concurrent review, or precertification.

Proposed subsection (i) describes the role and responsibilities of the designated doctor. The section incorporates the basic responsibilities in current §126.10 and apply to a designated doctor regardless of the purpose of the examination being performed. In addition to these general responsibilities, a designated doctor may have additional responsibilities associated with the specific examination being performed. These responsibilities are addressed in the specific rules associated with the various types of examinations. Subsection (i) also incorporates the requirements from §126.10 that a designated doctor notify the commission of disqualifying associations and not self-refer or treat the employee.

The Medical Quality Review Panel doctor (MQRP) is a new doctor role provided by HB-2600, and the roles and responsibilities are addressed in proposed subsection (j) of this section. This subsection states that the MQRP doctor is chosen by the commission's Medical Advisor, must have ADL Level 3 Certification and meet the performance standards specified by contract to be eligible for selection, and serve on the Medical Quality Review Panel as prescribed by contract.

Add New §180.23--Commission Required Training for Doctors/Certification Levels

HB-2600 mandates that the commission establish training requirements for doctors and health care providers providing services under this title. With HB-2600, the commission's authority is expanded and, through §180.23, training is being mandated for all doctors.

However, the commission recognizes that not all doctors need to have the same level of training. For example, there are doctors who are involved in a few cases per year and for whom the requirement to attend regular, workers' compensation-specific training would be burdensome when compared to their actual involvement. HB-2600 had similar considerations in that it required the commission to modify its training and registration requirements for some types of doctors.

Therefore, the commission proposes setting up three main levels of certification (Levels 1 to 3) and one auxiliary certification level (Level X--for eXception). Each level of certification has different training requirements and authorizes the doctor to serve in different roles in the system. Proposed subsection (a) explains this.

Proposed subsection (b) allows the commission to grant exceptions to let a doctor perform functions not normally permitted by the doctor's certification level. The reason for this is language in HB-2600 that authorizes such exceptions in order to ensure access to health care and evaluations of the employee's health care and income benefits eligibility.

Proposed subsection (c) describes various certification levels, the training necessary to achieve each certification level, and the authorizations allowed once certified. Higher certification requires more training but this is partially offset by increasing the amount of time the doctor has between trainings. Though the highest level of certification requires 2.5 days of training (plus passage of a test on impairment ratings), it should be noted that the training will be certified for continuing medical education credits.

Proposed subsection (c)(1) states that all doctors on the ADL regardless of their ADL Certification Level, are authorized, within the scope of their licensure to provide treatment to an employee, evaluate an employee's ability to work and any work restrictions, evaluate an employee's medical condition, and serve as a referral, consulting, peer review, or utilization review doctor. This subsection is included to prevent repetition among the various certification levels.

Proposed subsection (c)(2) describes the requirements and authorizations of an ADL Level 1 Certification. This level of certification requires a doctor to complete a training course emphasizing the basics of worker's compensation, return to work, and efficient utilization of care once every two years. Achieving this level of certification authorizes a doctor to provide only the standard services described in subsection (c)(1). A doctor with a Level 1 Certification is not authorized to serve as a treating doctor, RME doctor, designated doctor, serve on the Medical Quality Review Panel, or certify MMI or evaluate permanent impairment. Level 1 Certification is intended to be used by doctors who wish to serve as consulting, referral, peer review, or utilization review doctors and not serve as the primary provider on a claim.

Proposed subsection (c)(3) requires a doctor seeking a Level 2 Certification to complete the training required for level 1 certification and a second training module that covers certifications of MMI and the evaluation of permanent impairment. This training is required every three years. A doctor with a Level 2 Certification has all of the standard authorizations and is also authorized to serve as an RME or treating doctor and to certify MMI and evaluate permanent impairment. However, a doctor with Level 2 Certification is not authorized to serve as a designated doctor, or serve on the Medical Quality Review Panel.

The reason that the commission proposes that RME doctors be required to have Level 2 Certification is that carriers are required to use the same RME doctor on a claim unless good cause exists for a change to a different RME doctor. One of the main differences between Level 1 and Level 2 Certification is the authority to certify MMI and assign impairment ratings. Although HB-2600 has de-emphasized the role of the RME doctor relating to MMI and impairment ratings (by limiting carrier RMEs in this situation to after a designated doctor examination), the commission believes that RME doctors should be trained to evaluate MMI and impairment rather than setting up two "classes" of RME doctors and having employees regularly seeing more than one RME doctor.

Proposed subsection (c)(4) states the requirements for a Level 3 Certification. A doctor who completes Level 2 Certification training and a third training module covering case studies and successfully passes an Impairment Evaluation Skills Examination every five years will be certified at Level 3. A doctor with Level 3 Certification has all of the authorizations of a doctor with Level 2 Certification but is also authorized to serve as a designated doctor and to serve on the Medical Quality Review Panel (if the doctor applies and is chosen by the Medical Director). The only limit on the authorizations of a doctor with Level 3 Certification are those imposed by licensure, the Statute and Rules, or the commission.

Proposed subsection (c)(5) offers an alternative certification level X, for those doctors who want to participate in the Texas workers' compensation system on a limited basis by making an exception to the training requirements in the previous subsections. This proposed certification level and its training requirements are supported by HB-2600's requirement that the commission modify the registration and training requirements for doctors who infrequently provide health care (often referred to as "low volume doctors").

Level X Certification requires a doctor to complete self-study training course (eventually to be internet based), and it provides the doctor all the authorizations of a Level 2 Certification with some exceptions. First, the doctors may only perform evaluations, provide care or medical opinions on no more than 12 employees per year. The number 12 was chosen based upon similar requirements in the workers' compensation system in Florida. The other exception is that a doctor with Level X Certification may only certify MMI and evaluate permanent impairment if granted permission by the commission on a case-by-case basis.

It is likely that out-of-state providers who are providing care to an employee who was injured in, or moved to, another state will seek Level X Certification. However, the commission does not intend Level X Certification to be applied exclusively to out-of-state doctors. There are likely to be in-state doctors who general don't wish to participate in the Texas workers' compensation system but who wish serve as the treating doctor to an employee whom the doctor already serves as primary care physician. Further, there are a number of out-of-state providers who regularly provide treatment to employees living in Texas (particularly near border regions). These doctors are welcome to participate in the system (assuming they comply with the Statute and Rules and are approved to be on the ADL). However, if they wish to treat more than 12 employees per year, they will need to go through the training and seek certification at the level that authorizes them to serve in the roles they are seeking.

Proposed subsection (d) requires that a doctor seeking Level 1, 2, and 3 Certifications must receive training from a commission-approved sponsor (vendor). As noted, training for Level X Certification will eventually be internet-based. In addition, the commission may approve distance-learning, interactive training for Level 1, 2, and 3 Certification such as through video conferencing.

Proposed subsection (e) requires a person who seeks to be approved to provide training under this rule to apply for commission approval in the form and manner prescribed by the commission.

Proposed subsection (f) explains that the commission approved trainer shall file or provide the registration and training information for each doctor applying to the ADL, in the form and manner prescribed by the commission. The commission's intent is that a doctor will attend the training and provide the commission approved trainer with their application for registration and financial disclosure information. This information will then be recorded in an electronic file that is transmitted to the commission for processing along with the paper copies for commission records.

The commission proposes this arrangement as a time-saving measure in processing thousands of ADL applications by August 1, 2003. By having the commission approved trainers provide the information electronically, the commission will be able to concentrate its efforts on reviewing the applications rather than data-entering them.

Proposed subsection (g)(1) prohibits a doctor not licensed in this state from performing utilization review and/or peer review for an carrier or its agent, unless directed by a doctor who: is licensed in this state, on the ADL, has a Level 3 Certification, and agrees to direct the doctor's reviews. This requirement comes from HB-2600.

Proposed subsection (g)(2) states that the commission may restrict or reduce a doctor's privileges or authorizations as provided by the Statute or Rules. Section 180.26 lays out the various types of sanctions the commission may impose on a doctor. This subsection is designed to ensure that the two rules are not read in such a way as to limit the commission's ability to impose sanctions that reduce a doctor's certification level or authorization.

Add New §180.24--Financial Disclosure

This new rule is proposed to comply with statutory mandates in the Texas Labor Code. Prior to the 77th Texas Legislative Session, 2001, §413.041 of the Texas Labor Code required the commission to adopt rules mandating an annual disclosure requirement by a health care provider who refers an employee to another health care provider in which the referring provider has more than a five percent financial interest. Disclosure to the commission and insurance carriers was required. Currently, financial disclosure is governed by §134.100 and §134.101 of this title (relating to Provider Disclosure of Financial Interest, Submission to the Commission and Provider Disclosure of Financial Interest, Submission to the Carrier, respectively).

HB-2600 amended §413.041. The revised statute requires each health care practitioner to disclose to the commission the identity of any health care provider in which the health care practitioner, or the health care provider that employs the doctor, has a financial interest. It further requires the health care practitioner to make the disclosure in the manner provided by commission rule. The revised statute also provides that the commission, by rule, require that a doctor disclose financial interests in other health care providers as a condition of registration for the approved doctor list established under §408.023, and to define "financial interest" for purposes of the subsection as provided by analogous federal regulations. The section also provides an administrative penalty for failure to disclose the interest and includes forfeiture of the right to reimbursement for services rendered during the period of noncompliance.

In proposing §180.24, the commission intends to replace §134.100 and §134.101 with a single rule that covers disclosure to both the commission and carriers.

Proposed subsection (a) sets forth the definitions relevant to the section. The subsection defines "financial interest" consistent with the definition of "financial relationship" found in Title 42, United States Code §1395nn and incorporates the exceptions to that statute that have been adopted as of the date this rule is adopted. The rule always provides a mechanism to review and incorporate changes to exceptions which may be adopted in the future. The term "compensation arrangement" is also defined consistent with statute. The term "immediate family member" is not defined by the statute. The proposed definition is based on the definition found in 42 CFR 411.351 (relating to physician referrals for Medicare services). The regulatory exceptions include those found at 66 Federal Register 856 (January 4, 2001) pertaining to 42 CFR Parts 411 and 424, and effective on January 4, 2002.

Proposed subsection (b) lays out requirements for financial disclosure reporting to the commission.

Proposed subsection (b)(1) requires that a health care practitioner report any financial interest to the commission when the health care practitioner becomes a system participant. The interest may be either a direct or indirect ownership or direct or indirect compensation arrangement of the health care practitioner, the health care provider who employs the health care practitioner, or an interest of an immediate family member. To be in compliance with the subsection, the health care practitioner must disclose newly acquired interests not later than 30 days from its acquisition. The proposed 30 day disclosure requirement is similar to the current requirement except that the duty to make the disclosure is tied to the assumption of the interest rather than making the first referral. Tying the reporting duty to the assumption of the interest should make it easier for providers to remember to report the interest.

Proposed subsection (b)(2) requires that a doctor, as a condition for a certificate of registration for the ADL, report all financial interest to the commission at the time of application for a certificate of registration for the approved doctor list on the form and in the manner prescribed by the commission. The interest may be either a direct or indirect ownership or direct or indirect compensation arrangement of the health care practitioner, the health care provider who employs the health care practitioner, or an interest of an immediate family member. To be in compliance with the subsection, the doctor must disclose newly acquired interests not later than 30 days from their acquisition.

Proposed subsection (b)(3) explains what must be contained in the disclosure. As a minimum, the disclosure must contain: the disclosing health care practitioner's name, business address, federal tax identification number, professional license number and any other unique identification number, the name(s), business address(es), federal tax identification number(s), professional license number(s), and any other unique identification number of the health care provider(s) in which the disclosing health care practitioner has a financial interest; the nature of the financial interest, including, but not limited to: percentage of ownership, type of ownership (e.g., direct or indirect, equity, mortgage), type of compensation arrangement (e.g, salary, contractual arrangement, stock as part of a salary payment) and the entity with the ownership (disclosing health care practitioner, the health care provider who employs the health care practitioner, or an immediate family member of the health care practitioner).

Proposed subsection (c) lays out requirements for financial disclosure reporting to carriers. It should be noted that Texas Labor Code §413.041 as amended by HB-2600 no longer includes a specific requirement to report financial interest to carriers. However, the commission believes that this reporting is necessary in order to ensure effective operation of the provisions of §413.041 which prohibit compensation for a provider who is out of compliance with the financial disclosure requirements of the Statute and Rules. Further, the underlying premise of the financial disclosure requirements seems to be that referrals when the referring provider has financial interest may need extra scrutiny to determine reasonableness and necessity. Since carriers make the initial determinations regarding payment of medical benefits in the Texas workers' compensation system, they will need disclosure information. Further, under §134.101, doctors are currently required to make such disclosure within 7 days of initially making a referral where there is a financial interest. Therefore, proposed subsection (c) imposes a similar requirement. Further supporting the commission's authority to do this is Texas Labor Code §408.0025, which authorizes the commission to adopt requirements regarding reports and records.

Section 180.24(d) addresses the consequences of a failure to disclose. Failure to disclose a financial interest has a number of consequences. First, as with any failure to comply with the Statute and Rules, proposed subsection (d) provides that the commission may take enforcement action as otherwise authorized. In addition, a health care practitioner, including a doctor, who fails to comply with any provisions of the section may be subject to a forfeiture of payments for all services, treatments or health care provided on a specific claim that is provided during a period of noncompliance even if the services themselves did not implicate any disclosure requirements.

Specific enforcement citations and violation language are not contained in the rule as they would be redundant to the statute. Failure to include enforcement language does not limit the commission's authority to take enforcement action for violations of this or any other rule. The commission's authority to enforce the statute and rules is granted in multiple provisions of the statute and duplicate language in rules is redundant and unnecessary.

Proposed subsection (d)(1) prohibits a health care practitioner who rendered services on a claim during a period in which the practitioner did not comply with the disclosure requirements of the section, regardless of whether the circumstances of the services themselves were subject to disclosure, and regardless of whether the services were medically necessary, from presenting or causing to be presented a claim or bill to any individual, third party payer, or other entity for those services. Services include any treatments or health care provided.

Proposed subsection (d)(2) makes clear that a health care practitioner who collects any amounts that were billed for services on a claim during a period in which the practitioner did not comply with the disclosure requirements under the section, regardless of whether the circumstances of the services themselves were subject to disclosure, and regardless of whether the services were medically necessary shall be liable to the individual or entity for, is responsible for timely refunding any amounts collected, regardless of whether the services were medically necessary. Services include any treatments or health care provided. Refunds shall be deemed to have been timely paid if they are paid within 45 days of the date the request for refund is received by the practitioner (as provided in §133.304 relating to Medical Payments and Denials).

Proposed subsection (d)(3) provides that a referral for services to a health care provider by a health care practitioner under circumstances in which required a disclosure under the section, but were not disclosed as required, creates a rebuttable presumption that the services were not medically necessary. Services include any treatments or health care provided. The presumption is justified by both the absence of disclosure and a number of studies that consistently found that physicians who had ownership or investment interests in entities to which they referred ordered more services than physicians without those financial relationships (some of these studies involved compensation as well). Increased utilization occurred whether the physician owned shares in a separate company that provided ancillary services or owned the equipment and provided the services as part of his or her medical practice. This correlation between financial ties and increased utilization was the impetus for Congressional action resulting in section 1877 of the Social Security Act. See 66 Federal Register 856, 859 (January 4, 2001).

Add New §180.25--Improper Inducements, Influence, and Threats

HB-2600 requires the commission to adopt federal standards relating to fraud, abuse, and antikickbacks that prohibit the payment or acceptance of payment in exchange for health care referrals. An employee is entitled to reasonable and necessary medical care. Providing fees for referrals creates an incentive to over-prescribe care and unnecessarily add costs to the workers' compensation system. In addition, the commission has noted that there are other attempts to improperly induce system participants (sometimes including threats) as relates to medical benefits. The purpose of proposed §180.25 is to address these improper inducements.

Proposed subsection (a) provides an overview of the intent of the rule and makes it clear that the rule applies to all system participants and their agents. The subsection generally prohibits offering, paying, soliciting, or receiving an improper inducement relating to medical benefit delivery and any improper attempts to influence medical benefit delivery, including through the making of improper threats.

Proposed subsection (b) lays out the specific conduct that will be deemed to be an improper inducement, influence or threat. Conduct which violates subsection (a) is prohibited regardless of whether it is specifically listed in subsection (b).

Proposed subsection (b)(1) and (2) relate to the federal standards. They cover soliciting, receiving, offering, or paying any remuneration for referrals and generally adopt the federal provisions in Title 42, United States Code §1320a-7b (Antikickback Statute). Section 180.25(c) provides that the exceptions found in the federal statute apply to these two subsections. The language is constructed in such a way that a third party is not permitted to engage in these activities either.

Proposed subsection (b)(3) and (4) prohibits attempting to influence where an employee seeks medical care by offering financial or other incentives such as favorable medical opinions that could impact the employee's benefits or offering to keep the employee off of work. The subsection also prohibits providing such incentives to attempt to influence the employee to comply with the provider's treatment plans.

This makes clear that, although the offering of the inducement under subsection (b)(4) requires a level of knowledge, the knowledge requirement does not extend to knowing that the inducement may cause a particular provider to be selected, if a reasonable person could conclude that such would be the result. The inducement is improper whether it is offered directly or indirectly, overtly or covertly, in cash or in kind. For example, this provision would prohibit the offering of a store gift certificate to provide supplemental food and clothing support while an injured employee participated in a single or multidisciplinary program, such as work conditioning or work hardening.

Offering an employee the income benefit enhancements provided by §408.0222 in exchange for treating within a regional network established under that subsection is an exception under the prohibition. Another exception is for providing conveniences such as transportation, translation services, and claim filing information, etc., that make it easier to obtain reasonable and necessary medical care if the conveniences are generally available to all patients, including nonworkers' compensation patients.

Proposed subsection (b)(5) prohibits attempting to influence the opinion of a provider or carrier by threatening to file a complaint or embroil them in other legal action. Medical benefit delivery is to be based solely upon reasonableness and medical necessity. This subsection is meant to prevent a chilling effect on the professional opinion of system participants performing duties arising under the Statute or Rules that may result from the threat of harassment through frivolous allegations. Frivolous assertions may result from a lack of facts to support the claim, a lack of legal basis for the claim, or a lack of legal authority of the body with whom the assertion is filed to act on the claim by sanctions, disciplinary action and the like. Like the other inducements described in subsection (b), attempting to influence benefit delivery with threats is improper and prohibited.

Proposed subsection (c) provides exceptions to subsection (b)(1) and (2). The proposed exceptions are those that apply to analogous provisions in Title 42, United States Code §1320a-7b(3). HB-2600 mandates that the commission by rule shall adopt the federal standards that prohibit the payment or acceptance of payment in exchange for health care referrals. Therefore, unlike the exceptions found in §180.24(a)(2)(C), the exceptions to this section include all current and future federal statutory and regulatory exceptions.

Add New §180.26--Doctor and Insurance Carrier Sanctions

This rule replaces requirements currently in §126.8(d) and expands them based upon the provisions of HB-2600. The rule lays out the grounds (conduct, actions, inactions, and events) that will require the Executive Director to delete a doctor from the Approved Doctor's List (ADL); the grounds that allow the commission to either delete a doctor or issue a sanction against a carrier or doctor; the evidence the commission may consider as conclusively establishing the grounds to issue a sanction; and the types of sanction the commission may issue.

The chief changes between this rule the old rule are that under the old rule, the commission was only authorized to delete a doctor from the ADL and the threshold for invoking that authority differed from HB-2600's provisions. As a result, what was previously a single subsection in §126.8 is now a separate rule.

Proposed subsection (a) clarifies that sanctions provided and imposed under this rule are in addition to sanctions provided by Statute or other Rules and otherwise serves as an overview for the rule.

Proposed subsection (b) outlines the grounds that will require the Executive Director to delete a doctor from the Approved Doctor's List. This subsection is based upon new Texas Labor Code §408.0231 which states that the Executive Director "shall delete from the list of approved doctors" if any of four conditions apply. The proposed subsection of the rule is virtually identical to the language in §408.0231 except that it adds clarification to one of the conditions. Section 408.0231(a)(3) provides for deletion by the Executive Director if the doctor's license to practice in this state "is revoked, suspended, or not renewed by the appropriate licensing authority". Proposed subsection (b) makes it clear that voluntary relinquishment of a license by a doctor or deferred suspension or revocation by the licensing authority are covered by the subsection.

Proposed subsections (c) and (d) outline the grounds under which Medical Advisor shall recommend a doctor (any type of doctor) for removal from the ADL or may recommend removal or other sanctions against a doctor or a carrier. Proposed subsection (c) covers grounds for deletion and proposed subsection (d) provides grounds for deletions and other sanctions. The two subsections are very similar with some grounds appearing to be identical. However, this is not the case. The main difference between the two subsections is that subsection (c) covers mandatory removal for "significant violations" while subsection (d) covers discretionary removals and other sanctions for other violations.

As noted, proposed amendments to §180.1 provide a definition of "significant violation" to help clarify this proposed rule. A significant violation is basically one which was Wilfully committed, which was part of an uncorrected pattern of practice, which resulted or could have resulted in significant harm to an employee or another system participant, or which, based upon the facts of the violation, raise reasonable concern about a violator's ability to conform its future conduct to applicable laws and rules. It is worth noting that the term "significant violation" is not applied only to violations of the Statute and Rules. It can also be a significant violation of regulations enforced by another regulatory body.

Proposed subsection (c) lists the grounds for deletion and provides a non-inclusive list of examples where it was believed that such as list would provide clarification. Texas Labor Code §408.0231(c) amends the list of factors that the commission can consider for deleting a doctor or imposing other sanctions on a carrier or doctor. The commission can use "anything [it] considers relevant" and the list of examples that was already in the statute was made broader.

Proposed subsection (c)(1) states that the Medical Advisor shall recommend deletion of a doctor who commits a significant violation of the Statute, Rules or a commission decision or order. Listed examples include wilful or intentional violations as well as violations that are part of an uncorrected pattern. The commission believes that if a doctor commits a wilful or intentional violation, or if the doctor continues a pattern of conduct that violates the Statute, Rules, or commission decisions or orders even after the doctor was notified of the noncompliance of the conduct, the doctor has demonstrated an unwillingness to abide by the requirements of the Statute and Rules and should not be allowed to participate in the Texas workers' compensation system.

Proposed subsection (c)(2) is similar to subsection (c)(1) in that it involves significant violations but in this case, it is significant violations of statutes or regulations not administered by the commission. For example, behavior that causes sanctions by the Medicare or Medicaid programs is considered to be a significant violation.

Proposed subsection (c)(3) provides for deletion for "professional failure to practice medicine or provide health care, including chiropractic care, in an acceptable manner consistent with the public health safety and welfare". Included as examples of this are things like negligent practices that result in or substantially increase the probability of death or injury to a patient. Some other examples include excessive surgical care, excessive complications, having an uncorrected pattern of failing to timely and appropriately release an employee to return to work. The commission anticipates using benchmarks, guidelines, and the QRP to establish the grounds in this subsection. The proposed subsection references benchmarks rather than specific thresholds because over time, benchmarks fluctuate as standards of care change due to new techniques and technology. Setting specific thresholds in the rule would limit the commission's ability to ensure that the quality of care in the workers' compensation system keeps pace with advances in quality in other health care systems.

Proposed subsection (c)(4) provides for deletion if a doctor has a significant (uncorrected or wilful) pattern of conduct relating to the delivery of health care that the commission finds is not fair and reasonable or that the commission determines does not meet professionally recognized standards of health care. Some examples of this include unjustifiable differences between the doctor's diagnoses or treatments and acceptable standards of care; administering improper, unreasonable, or medically unnecessary treatment or services and/or seeking preauthorization for same; making unnecessary referrals; and having a practice of submitting medical bills with a pattern of inappropriate coding or which is abusive or violates Rules and Guidelines including but not limited to, such practices as upcoding and unbundling as defined in §133.1 (relating to Definitions) and which, if relied upon by the carrier, has the potential of unlawfully increasing the doctor's fee.

Proposed subsection (c)(5) provides for deletion for dishonest or criminal conduct. Though this may appear redundant to proposed subsection (c)(2), the commission proposes giving this its own subsection to emphasize it.

Proposed subsection (c)(6) provides for deletion in a case where a doctor refuses to refund moneys improperly paid to the doctor. Doctors are entitled to specific fees for reasonable and necessary medical care assuming the care was provided and billed in accordance with the Statute and Rules. If the commission finds that the doctor was paid moneys he or she was not entitled to or was otherwise overpaid, the doctor is expected to comply with the refund order. Failure to do so (after opportunity for appeal of the order) constitutes a wilful violation of the order and represents conduct that warrants deletion.

Proposed subsection (c)(7) is a "catch-all" category that allows the commission to recommend deletion for conduct not specifically stated in the rule but which otherwise rises to the level that makes it appropriate to recommend deletion. This subsection is functionally identical to language contained in current §126.8.

Proposed subsection (d) lists discretionary grounds for suspension, deletion, or other sanction. Because the grounds under this section are similar to the grounds under subsection (c), no examples were provided under subsection (d). The examples under subsection (c) can apply to subsection (d). For example, both proposed subsections (c) and (d) reference "conduct relating to the delivery of health care that the commission finds is not fair and reasonable or that the commission determines does not meet professionally recognized standards of health care." However subsection (c), addresses a "significant (uncorrected or wilful) pattern of practice" and subsection (d) does not require a significant pattern of practice.

Proposed subsection (d) also provides that the commission issue a sanction for violation of the Statute, Rules, or commission decision or order; or violation of other statutes or regulations not administered by the commission but relevant to the provision of and payments for health care as well as "other activities which warrant sanction".

One similar feature of proposed subsection (d) is that it provides for sanction if there is a refusal to "pay moneys owed to a health care provider". The reason this is in subsection (d) instead of subsection (c) like the analogous provision for doctors refusing to pay refunds is that the commission is not authorized to "delete" a carrier under HB-2600. Therefore, this provision was put under the subsection providing for grounds for sanctions.

Proposed subsection (e) provides for immediate and binding suspension from the ADL for a doctor who fails to maintain his or her training requirements. It also provides for immediate reinstatement upon providing the commission documentation that proves the doctor brought his or her training up to date. Reinstatement shall be retroactive back to the date the training was brought up to date.

The rule proposes immediate and binding suspension in these circumstances because being trained is a minimal qualification for being on the ADL. Because a doctor who is not trained is not eligible to be on the list and because doctor's are given notice of expiration of training at least 60 days prior to expiration (required by Texas Labor Code §408.023(d)), the commission believes this appropriate.

Proposed subsection (f) identifies different types of evidence that the commission can use to establish the grounds for issuing a sanction against a carrier or doctor (including deleting or suspending a doctor). The intent of this section is to allow the commission to use facts already established through adjudication, agreement, no contest plea or other finding by a regulatory entity, hearing, court, or administrative review process. This will save the commission the expense of reestablishing facts already established should the recommendation for sanction or deletion be appealed. The subsection also notes that information obtained from any source (including expert opinions such as from the QRP) can be used as well.

Proposed subsection (g) states which of the types of evidence listed in subsection (f) are conclusive evidence.

Proposed subsection (h) lists the sanctions that the commission is authorized to impose or recommend against a doctor or carrier. The list is identical to Texas Labor Code §408.0231(f) but it contains some parenthetical examples to try to explain what form the sanctions might take.

Proposed subsection (i) states that a doctor deleted or suspended from the ADL may not provide health care or receive remuneration after being deleted or while suspended. The definition of remuneration in proposed §180.1 is "any payment or other benefit made directly or indirectly, overtly or covertly, in cash or in kind including, but not limited to forgiveness of debt." Therefore, by prohibiting remuneration to a doctor who has been deleted or suspended from the ADL, the commission intends that health care providers in which the doctor has a financial interest will not be permitted to receive remuneration either (because this remuneration would take the form of an indirect payment to the doctor who was deleted or suspended).

Add New §180.27--Sanctions Process/Appeals/Restoration/Reinstatement

This rule replaces requirements currently in §126.8(e) - (h) and modifies them based upon the provisions of HB-2600. The rule lays out the process for issuing sanctions authorized by §180.26, the process for appeals, and the processes for requesting and reviewing requests for reinstatement to the list or restoration of privileges (restricted by sanction). In addition, the analogous processes currently in §126.10 (relating to Commission Approved List of Designated Doctors) are replaced with those in this rule.

Some of the requirements of the proposed rule are the same as they were under §126.8 and §126.10 others are not. One difference is that this rule also applies to sanctions involving carriers while the current rules do not. Where proposed processes are different, they will be noted.

Proposed subsection (a) requires the commission to send notice of its intent to recommend or impose a sanction to the person by verifiable means. Current §126.8 and §126.10 went into more detail about how such notice was to be sent (certified mail with return receipt requested). However, certified mail is but one way to verify delivery and so the commission recommends language that will allow more flexibility to use other means of delivery.

Proposed subsection (a) also provides that the person has 20 days to request a hearing or the sanction recommendation will go to commissioners for their approval. This is not unlike how it is under current §126.8 (for ADL deletions) but it is very different than current §126.10 (for DDL suspensions or deletions). Current §126.10 only provided for an administrative review by the commission and the doctor had only 14 days to file it. However, HB-2600, by listing "deletion or suspension from the approved doctor and designated doctor lists", seems to require actions relating to designated doctors to be handled as they are for other sanctions. This means that the doctor is entitled to request a hearing.

The proposed subsection also provides that if a hearing is not timely requested then the commissioners shall act on the recommendation at a public meeting. If a hearing was requested, the commission generally will have the burden of proof unless the recommendation is based upon facts already established/adjudicated.

Proposed subsection (b) provides that if the commission modifies, amends, or changes the a recommended finding of fact or conclusion of law or order of the administrative law judge's (ALJ), the commission's final order shall state the legal basis and specific reasons for the change. The intent of this subsection is to ensure that the commission's reasoning is well documented should the commission's order be appealed.

Proposed subsection (c) requires the commission to provide copies of an order for sanction to the employees being treated by the doctor and requires the doctors to do the same. This requirement is a carryover from the current requirements of §126.8.

The reason that the commission wants employees to be informed is to ensure that they both understand that sanctions have been imposed and to understand why the sanctions were imposed. It is important for employees to know both of these things so that (even if the doctor was not deleted) they decided whether they want to change doctors. For example, the sanctions might impact their access to care that might cause them to want to change. Alternately, when they hear the grounds for the sanction, it might make them concerned about the quality of care they are receiving.

Proposed subsection (d) provides that the commission can issue further sanctions against a person who fails to comply with sanctions.

Proposed subsection (e) allows a person who was sanctioned to request the sanction be lifted (whether through restoration of privileges or readmission to the list the doctor was deleted or suspended from). Requests shall be evaluated by the Medical Advisor and the QRP. The subsection also requires the requestor to pay for the cost of the review, which may involve an audit of the doctor or carrier's practices in order to establish the that sanctions should be lifted. This charge is authorized by Texas Labor Code §402.064 which requires the commission to set reasonable fees for services requested from the commission.

Subsection (f) provides that if the Medical Advisor believes it is appropriate to lift the sanctions, that the commissioners shall receive and act on that recommendation. If the Medical Advisor does not believe that it is appropriate to lift the sanctions, the requestor shall be notified and have the opportunity to respond within 14 days. The response would be reviewed by the Medical Advisor and a final recommendation made to the commissioners who will also be provided a copy of the doctor's response.

This proposed process is similar to the process currently in place for actions relating to the DDL but different than the current process for requests for reinstatement to the ADL. Section 126.8 currently provides for a hearing if a doctor requests reinstatement to the ADL. Though this is a current requirement, it was not a statutory requirement prior to HB-2600 and HB-2600 did not change this.

Dr. Bill Nemeth, the commission's Medical Advisor, has determined the following with respect to fiscal impact for the first five-year period the proposed amended and new rules are in effect.

With regard to enforcement and administration of the rules by state or local governments there will be no significant impact on local governments. However, there are significant fiscal implications to the commission because of the need to develop or modify automated systems, review thousands of applications for the ADL, and train and monitor doctors and carriers, and train commission staff. However, it is difficult to quantify these costs. The ability of the Executive Director to administratively remove some doctors from the ADL should decrease some costs for the commission.

Local government and state government as covered regulated entities, will be impacted in the same manner as persons required to comply with the rules as proposed.

Dr. Nemeth has determined that for each year of the first five years the rules as proposed are in effect, the public benefits anticipated as a result of enforcing the rules will be better access to higher quality medical care, reduced medical and indemnity claims costs (which will eventually result in reduced premiums), and more timely returns to work. However these benefits will increase over time and may not be significant in the first two years as the requirements of the rules will not be fully implemented by then.

Employees

Employees will benefit in a number of ways. The intent of HB-2600, and these rules is to ensure that employees have access to doctors who will provide timely quality care that is designed to cure or relieve the effects naturally resulting from the compensable injury, promote recovery, and/or enhance the ability of the employee to return to or retain employment. The commission expects that employees will see improvements in these areas as a result of the new rules. The exceptions provided for some out-of-state and low-volume doctors should help ensure employee access to quality health care.

The training relating to MMI and impairment should provide a number of benefits. Employees should receive more accurate impairment ratings and this will ensure that they get the benefits they are entitled to. More accurate impairment ratings should also reduce disputes and this should reduce the number of employee exams required and reduce delays in employees receiving their benefits. Disputes relating to MMI date should also be reduced because doctors will be better educated on how to certify MMI.

Studies have shown that employees who remain off of work longer are less likely to ever return to work at wages approaching those they were earning while injured. The emphasis on timely return to work in the training that doctors will receive should result in fewer employees remaining off of work longer than medically appropriate. As a result, the long-term impact of injuries on employees should be lessened.

Currently carriers utilizing the medical opinions of doctors who are not fully trained in Texas workers' compensation law often interrupt employees' medical care. By educating peer review and utilization review doctors, disputes that affect benefit delivery may be avoided. Reductions in disputes should improve medical benefit delivery, lower frustration, and speed recovery. Education and training of designated doctors should result in faster resolution of disputes.

Employees are not expected to see an increase in costs as a result of these rules. Employees who are currently kept off of work longer than is appropriate might receive fewer benefits under the new rules but this is off set by the benefit of returning to work.

Health Care Providers

Doctors will similarly benefit from these rules in a number of ways. First, as noted, carrier-selected doctors will be better trained and this should reduce unnecessary disputes (both prospective and retrospective). With costs currently very high and rising, action by some carriers designed to address non-compliant doctors may be affecting some doctors who are compliant. To the extent that the commission is able to reduce the number of non-compliant doctors (e. g. by changing behavior or removing the doctors who won't change), the remaining doctors should experience increased efficiencies in the handling of their claims. In addition, these doctors are likely to see an increase in their worker's compensation business.

Currently some doctors offer improper inducements to employees in order to get the employees to change doctors. Often the doctors who are doing this are the doctors who keep employees off work longer than medically necessary and otherwise add to system costs by overutilizing care. The prohibition of improper inducements and the efforts to remove non-compliant doctors, should also increase workers' compensation business for those who comply with system rules and regulations.

Another benefit to providers is that the commission's ability to sanction carriers for quality of care issues is expanded by these rules. The increased ability to hold carriers responsible for their actions and inactions should result in improved compliance and, as a result, payments of medical bills may be more timely and accurate while disputes may be reduced.

Some doctors may see a slight increase in costs associated with obtaining email access and with having to take periodic training. However these increases are expected to be nominal and the statute requires that the commission establish some training requirements. Doctors already have continuing education requirements which are required for them to keep their licenses in good standing. Since the required training will be certified for continuing education credit, doctors will be able to fulfill two requirements at once. Treating doctors may also experience some costs associated with reporting outcome information to the commission. However, this requirement is mandated by the Legislature.

The expanded financial disclosure requirements may also increase some costs to providers, however, these requirements were also mandated by the Legislature.

Insurance carriers

Insurance carriers will benefit from the lower costs that will come as the system transitions from using an open list of approved doctors to using a controlled list of doctors specially trained in Texas workers' compensation. Prior to HB-2600, the commission's ability to exclude or otherwise limit doctors from participation in the system was limited. The system has seen workers' compensation costs (both indemnity and medical costs) rise significantly, especially when compared to costs in other states. To the extent that the commission is able to change utilization and return to work patterns (e.g. by changing behavior or by removing doctors who won't change behavior), costs shall be reduced.

In addition, with full financial disclosure, carriers will be able to give extra scrutiny to medical services provided through a self-referral by the doctor. Though these services may be reasonable and necessary, doctors who self-refer have an additional incentive to make the referral and thus additional scrutiny may be appropriate.

Similarly, prohibitions against improper inducements should ensure that only those benefits that the employee is truly entitled to are delivered.

The commission's expanded ability to remove doctors from the system should help increase compliance with the Statute and Rules. This should reduce claim costs by reducing overpayments caused by late reports by doctors.

Employers

Because insurance premiums are driven by claim costs, employers will see benefits to the extent that the commission is able to successfully implement HB-2600. Employers should benefit because the new rules should promote earlier returns to work. The earlier returns to work should also reduce the loss of productivity that an injury can cause. Employers should not see an increase in costs associated with these rules.

There will be no adverse economic impact on small businesses or on micro-businesses as a result of the proposed rule amendments. There will be only a proportionate difference in the cost of compliance for small businesses and micro-businesses as compared to the largest businesses, including state and local government entities. The same basic processes and procedures apply, regardless of the size or volume of the business. The business size cost difference will be in direct proportion to the volume of business that falls under the purview of these proposed rules.

Comments on the proposal must be received by 5:00 p.m., October 1, 2001. You may comment via the Internet by accessing the commission's website at http://www.twcc.state.tx.us and then clicking on "Proposed Rules." This medium for commenting will help you organize your comments. You may also email your comments to RuleComments@twcc.state.tx.us or mail or deliver your comments to Nell Cheslock at the Office of the General Counsel, Mailstop #4-D, Texas Workers' Compensation Commission, Southfield Building, 4000 South IH-35, Austin, Texas 78704-7491.

Commenters are requested to clearly identify by number the specific subsection and paragraph commented upon. The commission may not be able to respond to comments which cannot be linked to a particular proposed subsection. Along with your comment, it is suggested that you include the reasoning for the comment in order for commission staff to fully evaluate your recommendations. Unspecified comments submitted will not be addressed.

Based upon various considerations, including comments received and the staff's or commissioners' review of those comments, or based upon the commissioners' action at the public meeting, the rule as adopted may be revised from the rule as proposed in whole or in part. Persons in support of the rule as proposed, in whole or in part, may wish to comment to that effect with reference to specifics in the proposed rule amendments.

A public hearing on this proposal will be held on October 2, 2001, at the Austin central office of the commission (Southfield Building, 4000 South IH-35, Austin, Texas). Those persons interested in attending the public hearing should contact the commission's Office of Executive Communication at (512) 804-4430 to confirm the date, time, and location of the public hearing for this proposal. The public hearing schedule will also be available on the commission's website at http://www.twcc.state.tx.us .
Subchapter A. GENERAL RULES FOR ENFORCEMENT

28 TAC §180.1, §180.7

The proposed amended rule is proposed under: the Texas Labor Code, §401.011 which contains definitions used in the Texas Workers' Compensation Act; the Texas Labor Code, §401.024, which provides the commission the authority to require use of facsimile or other electronic means to transmit information in the system; the 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 and manner and procedure for transmission of information to the commission; the Texas Labor Code, the Texas Labor Code: §402.061, which authorizes the commission to adopt rules necessary to administer the Act; the Texas Labor Code §406.010 that authorizes the commission to adopt rules regarding claims service; the Texas Labor Code §408.021 that states an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed; the Texas Labor Code §408.022 which address choice of treating doctor; the Texas Labor Code §408.023 which requires the commission to develop a list of approved doctors and lay out the requirements for being on the list; the Texas Labor Code §408.0231 which provides the commission with the responsibility for maintenance of the list, with the authority for imposing sanctions, and requires the commission to adopt rules; the Texas Labor Code, §408.025 which requires the commission to specify by rule what reports a health care provider is required to file; the Texas Labor Code §413.002, that requires the commission to monitor health care providers and carriers to ensure compliance with commission rules relating to health care including medical policies and fee guidelines; the Texas Labor Code §413.011 that requires the commission by rule to establish medical policies relating to necessary treatments for injuries and designed to ensure the quality of medical care and to achieve effective medical cost control; the Texas Labor Code, §413.012 which requires the commission to review and revise medical policies and fee guidelines at least every two years to reflect current medical treatment and fees that are reasonable and necessary; the Texas Labor Code, §413.013 which requires the commission by rule to establish a program for prospective, concurrent, and retrospective review and resolution of a dispute regarding health care treatments and services; a program for the systematic monitoring of the necessity of the treatments administered and fees charged and paid for medical treatments or services including the authorization of prospective, concurrent or retrospective review and a program to detect practices and patterns by insurance carriers in unreasonably denying authorization of payment for medical services, and a program to increase the intensity of review; the Texas Labor Code §413.014 that requires the commission to specify by rule, except for treatments and services required to treat a medical emergency, which health care treatments and services require express preauthorization and concurrent review by the carrier as well as allowing health care providers to request precertification and allowing the carriers to enter agreements to pay for treatments and services that do not require preauthorization or concurrent review. This mandate also states the carrier is not liable for the cost of the specified treatments and services unless preauthorization is sought by the claimant or health care provider and either obtained or ordered by the commission; the Texas Labor Code §413.017 that establishes medical services to be presumed reasonable when provided subject to prospective, concurrent review and are authorized by the carrier; the Texas Labor Code §413.031, that establishes the right to access medical dispute resolution; the Texas Labor Code§ 413.041 which requires financial disclosure of financial interests by health care providers and their employers, which requires the commission to adopt federal standards prohibiting payment of acceptance of payment in exchange for health care referrals, and which prohibits payment to a provider during a period of noncompliance with disclosure requirements; the Texas Labor Code §413.0511 which creates the position of Medical Advisor and imbues the position with certain responsibilities and authority; the Texas Labor Code §413.0512 which creates the Medical Quality Review Panel (MQRP) and grants it certain responsibilities and authority; certain responsibilities and authority; the Texas Labor Code, §413.0513 which lays out confidentiality provisions relating to the MQRP. §414.007, that allows the review of referrals from the Medical Review Division by the Division of Compliance and Practices; and the Texas Labor Code §415.0035 that establishes administrative violations for repeated administrative violations.

The amendments are affected by the following rules: the Texas Labor Code, §401.011 which contains definitions used in the Texas Workers' Compensation Act; the Texas Labor Code, §401.024, which provides the commission the authority to require use of facsimile or other electronic means to transmit information in the system; the 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 and manner and procedure for transmission of information to the commission; the Texas Labor Code, the Texas Labor Code: §402.061, which authorizes the commission to adopt rules necessary to administer the Act; the Texas Labor Code §406.010 that authorizes the commission to adopt rules regarding claims service; the Texas Labor Code §408.021 that states an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed; the Texas Labor Code §408.022 which address choice of treating doctor; the Texas Labor Code §408.023 which requires the commission to develop a list of approved doctors and lay out the requirements for being on the list; the Texas Labor Code §408.0231 which provides the commission with the responsibility for maintenance of the list, with the authority for imposing sanctions, and requires the commission to adopt rules; the Texas Labor Code, §408.025 which requires the commission to specify by rule what reports a health care provider is required to file; the Texas Labor Code §413.002, that requires the commission to monitor health care providers and carriers to ensure compliance with commission rules relating to health care including medical policies and fee guidelines; the Texas Labor Code §413.011 that requires the commission by rule to establish medical policies relating to necessary treatments for injuries and designed to ensure the quality of medical care and to achieve effective medical cost control; the Texas Labor Code, §413.012 which requires the commission to review and revise medical policies and fee guidelines at least every two years to reflect current medical treatment and fees that are reasonable and necessary; the Texas Labor Code, §413.013 which requires the commission by rule to establish a program for prospective, concurrent, and retrospective review and resolution of a dispute regarding health care treatments and services; a program for the systematic monitoring of the necessity of the treatments administered and fees charged and paid for medical treatments or services including the authorization of prospective, concurrent or retrospective review and a program to detect practices and patterns by insurance carriers in unreasonably denying authorization of payment for medical services, and a program to increase the intensity of review; the Texas Labor Code §413.014 that requires the commission to specify by rule, except for treatments and services required to treat a medical emergency, which health care treatments and services require express preauthorization and concurrent review by the carrier as well as allowing health care providers to request precertification and allowing the carriers to enter agreements to pay for treatments and services that do not require preauthorization or concurrent review. This mandate also states the carrier is not liable for the cost of the specified treatments and services unless preauthorization is sought by the claimant or health care provider and either obtained or ordered by the commission; the Texas Labor Code §413.017 that establishes medical services to be presumed reasonable when provided subject to prospective, concurrent review and are authorized by the carrier; the Texas Labor Code §413.031, that establishes the right to access medical dispute resolution; the Texas Labor Code §413.041 which requires financial disclosure of financial interests by health care providers and their employers, which requires the commission to adopt federal standards prohibiting payment of acceptance of payment in exchange for health care referrals, and which prohibits payment to a provider during a period of noncompliance with disclosure requirements; the Texas Labor Code §413.0511 which creates the position of Medical Advisor and imbues the position with certain responsibilities and authority; the Texas Labor Code §413.0512 which creates the Medical Quality Review Panel (MQRP) and grants it certain responsibilities and authority; certain responsibilities and authority; the Texas Labor Code, §413.0513 which lays out confidentiality provisions relating to the MQRP. Section 414.007, that allows the review of referrals from the Medical Review Division by the Division of Compliance and Practices; and the Texas Labor Code §415.0035 that establishes administrative violations for repeated administrative violations.
§180.1.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. [ ~~Other terms such as "willful", "intentional", and "knowingly" shall have the meanings defined by the Texas Penal Code.~~ ]

(1) Abusive practice--A practice that:

(A) does not meet professionally recognized standards for health care or insurance claims adjusting; or

(B) does not meet standards required by Statute, Rules, or previous notification to system participant; or

(C) is inconsistent with sound fiscal, business, or medical practices and that results in:

(i) unnecessary system costs or in reimbursement for services that are not medically necessary; or

(ii) improper reduction or increase of benefits.

(2) Administrative Law Judge--An administrative law judge (ALJ) designated by the State Office of Administrative Hearings (SOAH) to preside over the hearing, or a hearing officer of a state or federal tribunal.

(3) Agent--A person or entity that a system participant (insurance carrier, health care provider, employer, employee or attorney), contracts with or utilizes for the purpose of providing claims service or fulfilling duties under the Statute and Rules. The system participant that the agent works on behalf of is responsible for the acts and omissions of that agent executed in performance of services for the participant.
(4) [ ~~(1)~~ ] Charged Person (also Alleged Violator) --The person who is charged with an administrative violation or wrongful act. As used in these rules, charged person includes both people initially charged and those found guilty of an administrative violation(s) [ ~~violations~~ ].

(5) Compliance--a person is in compliance if the person timely and accurately fulfills his or her duties under the Statute and Rules in the form and manner required (does not commit a violation by an act of omission or commission) and if the person does not commit an act which is prohibited.

(6) Continued Noncompliance (also Active Noncompliance)--A person is in "continued noncompliance" if the person has committed a violation of the Statute or Rules and has yet to take action to come into full compliance. For example, a person who fails to file a required report in the form and manner required by the commission (or who files an incomplete report) would be in "continued noncompliance"; the person could "get out" of continued noncompliance by filing a properly completed report (though, doing so would not eliminate the existence of a violation for failing to timely file a complete report in the first place). By contrast, a person who filed a required report in the form and manner prescribed by the commission but filed it late, would not be in "continued noncompliance".

(7) Controlled substances--"Controlled substance" as defined by the Texas Controlled Substances Act (Texas Civil Statutes, Article 4476-15) or its successor and the Federal Controlled Substances Act (21 USCA §8.01 et seq.) or its successor.

(8) Conviction or convicted--A person is considered to have been convicted of a criminal offense when:

(A) a judgment of conviction has been entered against the person by a federal, state, or local court, regardless of whether an appeal is pending or whether the judgment of conviction or other record relating to criminal conduct has been expunged or whether the sentence is subsequently propbaeted and the person has been discharged from probation;

(B) the person has been found guilty by a federal, state, or local court and that finding has not been overturned on appeal;

(C) the person has entered a plea of guilty or nolo contendere (no contest) that has been accepted by a federal, state, or local court;

(D) the person has entered a first offender or other program and judgment of conviction has been withheld; or

(E) the person has received deferred adjudication.

(9) Emergency--As defined in §133.1 of this title (relating to Definitions).

(10) Intentionally--A person acts intentionally under this subsection with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

(11) Knowingly--A person acts knowingly with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

(12) Noncompliance or Noncompliant Act- a violation of the Statute or Rules.
(13) [ ~~(2)~~ ] Pattern [ ~~Patterns~~ ] of Practice [ ~~conduct~~ ]--The acts or omissions of a participant in the workers' compensation system which are repeated. This term is synonymous with similar [ ~~the~~ ] terms such as "business practice" , "pattern of conduct", [ ~~and~~ ] "matter of practice" , etc .

(14) Rules--The commission's rules adopted under this Statute.

(15) Remuneration--any payment or other benefit made directly or indirectly, overtly or covertly, in cash or in kind including, but not limited to forgiveness of debt.

(16) Significant Violation--a violation which:

(A) based upon the facts surrounding it, raises reasonable concern about a system participant's ability to conform its future conduct to applicable laws or rules;

(B) resulted or could have resulted in significant physical or emotional harm to an injured employee;

(C) resulted or could have resulted in significant economic harm to a system participant; or

(D) was either wilfully committed or which is part of an uncorrected pattern of practice.

(17) SOAH--The State Office of Administrative Hearings.
(18) System Participant--A person or entity required to comply with the Statute and Rules. This will generally be an insurance carrier (carrier), employer, health care provider (provider or HCP), attorney, injured employee (employee) or other claimant.

(19) Uncorrected Pattern of Practice--a pattern of practice which continues even after the commission notifies the person committing the violations of their noncompliance.

(20) Violation--a failure to comply with a duty established under the Statute or Rules or commission of an act prohibited by the Statute or Rules.

(21) Violator--a person found to have committed an administrative violation or another offense.

(22) Wilfully--intentionally or knowingly. Also, continuing conduct after being notified of noncompliance.
§180.7.Date [ ~~Administrative~~ ] Violation Deemed to [ To ] Have Occurred ; Establishing Wilful Violations .
(a) A violation is [ ~~Administrative violations are~~ ] deemed to have occurred:

(1) on the date a noncompliant action is taken; or

(2) [ ~~on the date required by the Texas Workers' Compensation Act or rule,~~ ] when no action is taken by the close of business on the [ ~~that~~ ] date that the Statute or Rules requires an action to be taken .

(b) A violation may be deemed to be "wilful" if the person who committed the violation:

(1) did so knowingly or intentionally; or

(2) remains in continued noncompliance seven days after the date the commission brought the violation to the attention of the violator.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 20, 2001.
TRD-200104905

Susan Cory

General Counsel

Texas Workers' Compensation Commission

Earliest possible date of adoption: September 30, 2001

For further information, please call: (512) 804-4287

28 TAC §180.2

The new rule is proposed under: the Texas Labor Code, §401.011 which contains definitions used in the Texas Workers' Compensation Act; the Texas Labor Code, §401.024, which provides the commission the authority to require use of facsimile or other electronic means to transmit information in the system; the 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 and manner and procedure for transmission of information to the commission; the Texas Labor Code, the Texas Labor Code: §402.061, which authorizes the commission to adopt rules necessary to administer the Act; the Texas Labor Code §406.010 that authorizes the commission to adopt rules regarding claims service; the Texas Labor Code §408.021 that states an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed; the Texas Labor Code §408.022 which address choice of treating doctor; the Texas Labor Code §408.023 which requires the commission to develop a list of approved doctors and lay out the requirements for being on the list; the Texas Labor Code §408.0231 which provides the commission with the responsibility for maintenance of the list, with the authority for imposing sanctions, and requires the commission to adopt rules; the Texas Labor Code, §408.025 which requires the commission to specify by rule what reports a health care provider is required to file; the Texas Labor Code §413.002, that requires the commission to monitor health care providers and carriers to ensure compliance with commission rules relating to health care including medical policies and fee guidelines; the Texas Labor Code §413.011 that requires the commission by rule to establish medical policies relating to necessary treatments for injuries and designed to ensure the quality of medical care and to achieve effective medical cost control; the Texas Labor Code, §413.012 which requires the commission to review and revise medical policies and fee guidelines at least every two years to reflect current medical treatment and fees that are reasonable and necessary; the Texas Labor Code, §413.013 which requires the commission by rule to establish a program for prospective, concurrent, and retrospective review and resolution of a dispute regarding health care treatments and services; a program for the systematic monitoring of the necessity of the treatments administered and fees charged and paid for medical treatments or services including the authorization of prospective, concurrent or retrospective review and a program to detect practices and patterns by insurance carriers in unreasonably denying authorization of payment for medical services, and a program to increase the intensity of review; the Texas Labor Code §413.014 that requires the commission to specify by rule, except for treatments and services required to treat a medical emergency, which health care treatments and services require express preauthorization and concurrent review by the carrier as well as allowing health care providers to request precertification and allowing the carriers to enter agreements to pay for treatments and services that do not require preauthorization or concurrent review. This mandate also states the carrier is not liable for the cost of the specified treatments and services unless preauthorization is sought by the claimant or health care provider and either obtained or ordered by the commission; the Texas Labor Code §413.017 that establishes medical services to be presumed reasonable when provided subject to prospective, concurrent review and are authorized by the carrier; the Texas Labor Code §413.031, that establishes the right to access medical dispute resolution; the Texas Labor Code §413.041 which requires financial disclosure of financial interests by health care providers and their employers, which requires the commission to adopt federal standards prohibiting payment of acceptance of payment in exchange for health care referrals, and which prohibits payment to a provider during a period of noncompliance with disclosure requirements; the Texas Labor Code §413.0511 which creates the position of Medical Advisor and imbues the position with certain responsibilities and authority; the Texas Labor Code §413.0512 which creates the Medical Quality Review Panel (MQRP) and grants it certain responsibilities and authority; certain responsibilities and authority; the Texas Labor Code, §413.0513 which lays out confidentiality provisions relating to the MQRP. Section 414.007, that allows the review of referrals from the Medical Review Division by the Division of Compliance and Practices; and the Texas Labor Code §415.0035 that establishes administrative violations for repeated administrative violations.

No other statutes, articles or codes are affected by this new rule.
§180.2.Referrals.

Any person may make a referral to the commission for fraudulent acts or omissions, for failure of a health care provider or an insurance carrier to provide/ensure quality medical care, or for other violations of the Statute or Rules.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 20, 2001.
TRD-200104906

Susan Cory

General Counsel

Texas Workers' Compensation Commission

Earliest possible date of adoption: September 30, 2001

For further information, please call: (512) 804-4287

Subchapter B. MEDICAL BENEFIT REGULATION

28 TAC §§180.20 - 180.27

The new rules are proposed under: the Texas Labor Code, §401.011 which contains definitions used in the Texas Workers' Compensation Act; the Texas Labor Code, §401.024, which provides the commission the authority to require use of facsimile or other electronic means to transmit information in the system; the 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 and manner and procedure for transmission of information to the commission; the Texas Labor Code, the Texas Labor Code: §402.061, which authorizes the commission to adopt rules necessary to administer the Act; the Texas Labor Code §406.010 that authorizes the commission to adopt rules regarding claims service; the Texas Labor Code §408.021 that states an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed; the Texas Labor Code §408.022 which address choice of treating doctor; the Texas Labor Code §408.023 which requires the commission to develop a list of approved doctors and lay out the requirements for being on the list; the Texas Labor Code §408.0231 which provides the commission with the responsibility for maintenance of the list, with the authority for imposing sanctions, and requires the commission to adopt rules; the Texas Labor Code, §408.025 which requires the commission to specify by rule what reports a health care provider is required to file; the Texas Labor Code §413.002, that requires the commission to monitor health care providers and carriers to ensure compliance with commission rules relating to health care including medical policies and fee guidelines; the Texas Labor Code §413.011 that requires the commission by rule to establish medical policies relating to necessary treatments for injuries and designed to ensure the quality of medical care and to achieve effective medical cost control; the Texas Labor Code, §413.012 which requires the commission to review and revise medical policies and fee guidelines at least every two years to reflect current medical treatment and fees that are reasonable and necessary; the Texas Labor Code, §413.013 which requires the commission by rule to establish a program for prospective, concurrent, and retrospective review and resolution of a dispute regarding health care treatments and services; a program for the systematic monitoring of the necessity of the treatments administered and fees charged and paid for medical treatments or services including the authorization of prospective, concurrent or retrospective review and a program to detect practices and patterns by insurance carriers in unreasonably denying authorization of payment for medical services, and a program to increase the intensity of review; the Texas Labor Code §413.014 that requires the commission to specify by rule, except for treatments and services required to treat a medical emergency, which health care treatments and services require express preauthorization and concurrent review by the carrier as well as allowing health care providers to request precertification and allowing the carriers to enter agreements to pay for treatments and services that do not require preauthorization or concurrent review. This mandate also states the carrier is not liable for the cost of the specified treatments and services unless preauthorization is sought by the claimant or health care provider and either obtained or ordered by the commission; the Texas Labor Code §413.017 that establishes medical services to be presumed reasonable when provided subject to prospective, concurrent review and are authorized by the carrier; the Texas Labor Code §413.031, that establishes the right to access medical dispute resolution; the Texas Labor Code §413.041 which requires financial disclosure of financial interests by health care providers and their employers, which requires the commission to adopt federal standards prohibiting payment of acceptance of payment in exchange for health care referrals, and which prohibits payment to a provider during a period of noncompliance with disclosure requirements; the Texas Labor Code §413.0511 which creates the position of Medical Advisor and imbues the position with certain responsibilities and authority; the Texas Labor Code §413.0512 which creates the Medical Quality Review Panel (MQRP) and grants it certain responsibilities and authority; certain responsibilities and authority; the Texas Labor Code, §413.0513 which lays out confidentiality provisions relating to the MQRP. Section 414.007, that allows the review of referrals from the Medical Review Division by the Division of Compliance and Practices; and the Texas Labor Code §415.0035 that establishes administrative violations for repeated administrative violations.

No other statutes, articles or codes are affected by these new rules.
§180.20.Commission Approved Doctor List.

(a) Except in an emergency, as defined in §133.1 of this title (relating to Definitions) or for the immediate post-injury medical care (care provided by the first doctor visited by the employee on the date the employee first seeks medical attention for the workers' compensation injury or illness), on or after August 1, 2003, a doctor providing or evaluating medical treatment and services or an employee's medical condition (or receiving payment for same) related to a compensable workers' compensation injury or illness shall be on the commission's Approved Doctor List (ADL).

(b) A doctor licensed in this state or licensed by another jurisdiction may apply to be included on the ADL by:

(1) completing training required by §180.23 of this title (relating to Commission Required Training for Doctors/Certification Levels);

(2) applying for a certificate of registration with the commission in the form and manner prescribed by the commission; and

(3) disclosing financial interests as required by Texas Labor Code §413.041 and §180.24 of this title (relating to Financial Disclosure) with the application.

(c) An application for registration shall include:

(1) general contact information including, but not limited to: name, mailing address, voice and facsimile numbers and an email address;

(2) the training certificate indicating the level of training completed;

(3) Impairment Rating Skills Examination score, if applicable;

(4) verification of licensure;

(5) disciplinary actions or practice restrictions by an appropriate licensing or certification authority, if any; and

(6) if the doctor applying for the ADL is not licensed in this state but wishes to perform utilization review and/or peer reviews for an insurance carrier or its agent, a signed sponsorship affidavit by a doctor who is licensed in this state, who is on the ADL at Level 3 Certification (as provided in §180.23 of this title) and who has agreed to direct the doctor's reviews. This affidavit shall be in the form and manner prescribed by the commission.

(d) The commission may utilize the Medical Quality Review Panel for evaluating ADL applications and make recommendations to the Medical Advisor to approve or deny admission to the ADL.

(e) Doctors may be denied admission to the ADL or admitted with conditions or restrictions for:

(1) failing to submit a complete application in accordance with this section;

(2) failing to complete required training;

(3) having relevant restrictions on their practice (including, but not limited to prior deletion from the ADL); or

(4) other activities which warrant application denial or restriction including, but not limited to, grounds that would allow the commission to delete from the ADL or otherwise sanction a doctor as specified in §180.26 of this title (relating to Doctor and Insurance Carrier Sanctions) or the Statute and Rules.

(f) The commission shall notify a doctor of the commission's approval or denial the doctor's application to the ADL. Denials shall include the reason(s) for the denial and be sent by a verifiable means of delivery. Within 14 days after receiving the notice, a doctor may file a response which addresses the reasons given for the denial.

(g) Any doctor on the ADL prior to the effective date of this section who does not apply to be on the ADL in accordance with subsections (b) and (c) of this section or who applies but is not approved under subsections (d) - (f) shall be deleted from the ADL on the earlier of:

(1) the date the doctor is denied approval; or

(2) August 1, 2003.

(h) Unless the commission has deleted or suspended the doctor from the ADL, a carrier shall not withhold reimbursement to a doctor licensed in another jurisdiction and/or who is a low-volume doctor (meaning the doctor is treating or evaluating 12 or fewer Texas workers' compensation employees per year) when the only reason for nonpayment is that the doctor was not on the ADL at the time the care was provided. In addition, a carrier shall not withhold reimbursement to a doctor providing medical care in an emergency or providing immediate post-injury medical care solely because the doctor who provided the care was not on the ADL at the time the care was provided.

(i) The commission shall make available through its internet website the names of:

(1) doctors on the ADL and their certification levels (once mandatory);

(2) doctors deleted from the list or otherwise sanctioned by the commission (including a description of the sanction); and

(3) doctors reinstated to the list or whose sanctions were lifted by the commission.

(j) Doctors on the ADL shall provide the commission with updated information within 30 days of a change in any of the information provided to the commission on the doctor's ADL application.
§180.21.Commission Designated Doctor List.

(a) In order to serve as designated doctor, a doctor must be on the Designated Doctor List (DDL).

(b) To be on the DDL prior to August 1, 2003, the doctor must:

(1) be currently active on the Approved Doctor List (ADL) as set forth in Texas Labor Code §408.023;

(2) have maintained for the past three years and continue to maintain routine office hours for the treatment of patients in an active practice of at least 20 hours per week;

(3) have filed a request to be on the DDL in the form and manner prescribed by the commission and been approved by the commission; and

(4) meet the following training requirements:

(A) have successfully completed commission-approved training in the proper use of the AMA Guides prior to submission of an application;

(B) successfully complete commission-approved training at least every two years from the date of the last training; and

(C) have passed the commission-approved written examination for impairment rating training within the timeframe as specified by the commission.

(c) To be on the DDL on or after August 1, 2003, the doctor must:

(1) be currently active on the ADL as set forth in Texas Labor Code §408.023 and §180.20 of this title (relating to Application for Registration/Commission Approved Doctor List);

(2) have maintained for the past one year and continue to maintain routine office hours for the treatment of patients in an active practice of at least 20 hours per week;

(3) have Level 3 Certification under §180.23 of this title (relating to Commission Required Training for Doctors/Certification Levels); and

(4) have filed a request in the form and manner prescribed by the commission, and have been approved by the commission to be included on the DDL.

(d) Any doctor on the DDL prior to August 1, 2003 who does not apply to be on the DDL in accordance with subsection (e) of this section or who applies but is not approved under subsections (f) - (h) shall be deleted from the DDL on the earlier of:

(1) the date the doctor is denied approval; or

(2) August 1, 2003.

(e) A DDL application shall include:

(1) general contact information including, but not limited to: name, mailing address, voice and facsimile numbers and an email address;

(2) the training certificate indicating the level of training completed;

(3) Impairment Rating Skills Examination score;

(4) verification of licensure;

(5) disciplinary actions or practice restrictions by an appropriate licensing or certification authority, if any.

(f) The commission may utilize the Medical Quality Review Panel for evaluating DDL applications and make recommendations to the Medical Advisor to approve or deny admission to the DDL. The commission may also utilize the Medical Quality Review Panel regarding deletion, suspension, or other sanction of a designated doctor as provided in this section.

(g) Doctors may be denied admission to the DDL for:

(1) not being on the ADL with no restrictions;

(2) failing to submit a complete application in accordance with this section;

(3) failing to complete required training;

(4) failing to pass the required test;

(5) having a relevant restriction on their practice (including, but not limited to prior deletion from the ADL or DDL or a prior ADL restriction); or

(6) other activities which warrant application denial including, but not limited to, grounds that would allow the commission to delete from the ADL or otherwise sanction a doctor as specified in §180.26 of this title (relating to Doctor and Insurance Carrier Sanctions) or the Statute or Rules.

(h) The commission shall notify a doctor of the commission's approval or deny the doctor's application to the DDL. Denials shall include the reason(s) for the denial and be sent by a verifiable means of delivery. Within 14 days after receiving the notice, a doctor may file a response which addresses the reasons given for the denial.

(i) When necessary because the injured employee is temporarily located or is residing out-of-state, the commission may waive any of the requirements as specified in this rule for an out-of-state doctor to serve as a designated doctor to facilitate a timely resolution of the dispute.

(j) Doctors on the DDL shall provide the commission with updated information within 30 days of a change in any of the information provided to the commission on the doctor's DDL application.

(k) In addition to the grounds for deletion or suspension from the ADL or for issuing other sanctions against a doctor under §180.26 of this title, the commission may delete or suspend a doctor from the DDL, or otherwise sanction a designated doctor for noncompliance with requirements of this section or any of the following:

(1) four refusals within a 90 day period, or four consecutive refusals to perform within the required time frames, a commission requested appointment for which the doctor is qualified;

(2) misrepresentation or omission of pertinent facts in medical evaluation and narrative reports;

(3) unnecessary referrals to other health care providers for the assignment of impairment rating or determination of maximum medical improvement (MMI);

(4) submission of an inaccurate or inappropriate reports due to insufficient examination and analysis of medical records;

(5) failure to timely respond to a request for clarification from the commission regarding an examination;

(6) assignments of MMI and/or impairment ratings overturned in a contested case hearing, appeals panel decision and/or court decision;

(7) any of the factors listed in subsection (f) of this section that would allow for denial of admission to the DDL;

(8) failure to successfully complete training requirements as specified in subsection (c)(4) of this section;

(9) failure to notify the commission field office of any disqualifying association within 48 hours of receiving notice of being selected as a designated doctor;

(10) failure to maintain routine office hours for the treatment of patients in an active practice of at least 20 hours per week;

(11) self-referring for treatment or becoming the employee's treating doctor for the medical condition evaluated by the designated doctor; or

(12) violation of Statute and Rules while serving as a designated doctor.

(l) The process for notification and opportunity for appeal of a sanction is governed by §180.27 of this title (relating to Sanctions Process/Appeals) except that suspension, deletion, or other sanction relating to the DDL shall be in effect during the pendency of any appeal.

(m) The commission shall make available through its internet website the names of:

(1) doctors on the DDL;

(2) doctors deleted or suspended from the list or otherwise sanctioned by the commission (including a description of the sanction); and

(3) doctors reinstated to the list or whose sanctions were lifted by the commission.
§180.22.Health Care Provider Roles and Responsibilities.

(a) Health care providers shall provide reasonable and necessary health care that:

(1) cures or relieves the effects naturally resulting from the compensable injury;

(2) promotes recovery; or

(3) enhances the ability of the employee to return to or retain employment.

(b) In addition to the general requirements of this section, health care providers shall timely and appropriately comply with all applicable requirements under the Statute and Rules, including but not limited to:

(1) reporting required information;

(2) disclosing financial interests;

(3) impartially evaluating an employee's condition; and

(4) correctly billing for health care provided.

(c) The treating doctor is the doctor primarily responsible for the efficient management of medical care and for coordinating the medical care for an injured employee's (employee) compensable injury. The treating doctor shall:

(1) except in the case of an emergency, approve or recommend all health care rendered to the employee including, but not limited to, medically reasonable and necessary treatment or evaluation provided through referrals to consulting and referral doctors or other health care providers, as defined in this section;

(2) maintain efficient utilization of health care;

(3) communicate with the employer about the employee's ability to work or any work restrictions on the employee;

(4) make available, upon request, in the form and manner prescribed by the commission:

(A) work release data

(B) cost and utilization data

(C) patient satisfaction data, including comorbidity, sf 12 and recovery expectations.

(d) The consulting doctor is a doctor who examines an employee or the employee's medical record in response to a request from the treating doctor, the designated doctor, or the commission. The consulting doctor shall:

(1) perform unbiased evaluations of the employee as directed by the requestor including, but not limited to, evaluations of:

(A) the accuracy of the diagnosis and appropriateness of the treatment of the injured employee;

(B) the employee's work status, ability to work, and work restrictions;

(C) the employee's medical condition; and

(D) other similar issues;

(2) not make referrals or provide treatment without the approval of the treating doctor.

(3) initiate treatment only if the treating doctor approves or recommends the treatment; and

(4) become a referral doctor if s/he begins to prescribe or provide health care to an injured employee.

(e) The referral doctor is a doctor who examines and treats an employee in response to a request from the treating doctor. The referral doctor shall:

(1) supplement the treating doctor's care; and

(2) report the employee's status to the treating doctor at least every 30 days

(f) The Required Medical Examination (RME) doctor is a doctor who examines the employee's medical condition in response to a request from the insurance carrier (carrier) or the commission under Texas Labor Code §408.004. The RME doctor shall:

(1) perform unbiased evaluations of the employee as directed by the RME order including, but not limited to, evaluations of:

(A) the accuracy of the diagnosis and appropriateness of the treatment of the injured employee;

(B) the employee's work status, ability to work, and work restrictions;

(C) the employee's medical condition; and

(D) other similar issues;

(2) not make referrals or provide treatment without the approval of the treating doctor.

(3) initiate treatment only if the treating doctor approves or recommends the treatment; and

(4) not evaluate the employee's maximum medical improvement (MMI) status or permanent whole body impairment except following an examination by a designated doctor or otherwise directed by the commission.

(g) The peer review doctor evaluates medical and health care services, including evaluation of the qualifications of professional health care practitioners and of health care provided by those practitioners. Peer reviews generally include the evaluation of the:

(1) accuracy of a diagnosis;

(2) quality of the care provided by a health care practitioner;

(h) The utilization review doctor reviews the medical care proposed to be provided or which has been provided to an employee to determine if the health care is reasonable and necessary.

(i) The designated doctor is a doctor appointed by the commission to recommend a resolution of a dispute as to the medical condition of an employee. The designated doctor shall:

(1) be currently active on the ADL as set forth in Texas Labor Code §408.023;

(2) notify the commission of any disqualifying association within 48 hours of receiving notice of being selected as a designated doctor;

(3) comply with all the requirements for designated doctors as specified by Statute or Rules;

(4) not self-refer for treatment or become the injured employee's treating doctor for the medical condition evaluated by the designated doctor. The designated doctor may indicate in the narrative report any treatment recommendations for the treating doctor to consider, but should not assist in any manner or facilitate the receipt of this treatment.

(j) A Medical Quality Review Panel (QRP) Doctor is a doctor chosen by the commission's Medical Advisor under Texas Labor Code §413.0512. All eligibilities, terms, responsibilities and prohibitions shall be prescribed by contract and the QRP Doctor shall serve on the QRP as prescribed by contract. A doctor must have Level 3 Certification on the ADL and meet the performance standards specified in the contract to be eligible for selection by the Medical Advisor to serve on the QRP.
§180.23.Commission Required Training for Doctors/Certification Levels.

(a) The level of training successfully completed by a doctor shall establish the doctor's ADL Certification Level, which in turn, determines the type of medical treatment and service the doctor is authorized to provide, as described in this title.

(b) The commission, in order to ensure employees have access to health care and insurance carriers have access to evaluations of an employee's health care and income benefit eligibility, may grant exceptions that allow a doctor to perform functions not normally permitted by the doctor's Certification Level. Such exceptions shall be granted on a per request, per case basis.

(c) ADL Training shall be broken out into modules that correspond with the different ADL Certification Levels. Higher certification requires additional training. Training shall be certified for continuing medical education credits. Doctors are only permitted to serve in the capacity authorized by their Certification Level.

(1) All doctors on the commission's list of approved doctors (ADL), regardless of Certification Level, are authorized (within their scope of licensure) to perform the following functions consistent with the restrictions contained in paragraphs (2) - (5) of this subsection:

(A) provide health care to an employee;

(B) evaluate an employee's work status, ability to work, and work restrictions;

(C) provide evaluations of an employee's medical condition; and

(D) serve as a referral, consulting, peer review, or utilization review doctor (as defined by §180.22 of this title (relating to Health Care Provider Roles and Responsibilities)).

(2) A Level 1 Certification requires a doctor to successfully complete in-depth training covering the basic requirements of the workers' compensation system with an emphasis on return to work, efficient utilization of care, and entitlement to benefits every two years.

(A) A doctor with Level 1 Certification only has the standard authorizations laid out in paragraph (1) of this subsection.

(B) A doctor with Level 1 Certification is not authorized to:

(i) serve as a treating, RME, or designated doctor (as defined by §180.22 of this title);

(ii) serve on the Medical Quality Review Panel; or

(iii) certify maximum medical improvement (MMI) or evaluate permanent whole body impairment.

(3) A Level 2 Certification requires a doctor to successfully complete the in-depth training required for Level 1 Certification and a second training module covering certification of MMI and evaluation of permanent whole body impairment in accordance with the AMA Guides, every three years.

(A) In addition to the standard authorizations, a doctor with Level 2 Certification is authorized to:

(i) serve as a treating or RME doctor; and

(ii) certify MMI and evaluate permanent whole body impairment.

(B) A doctor with Level 2 Certification is not authorized to:

(i) serve as a designated doctor; or

(ii) serve on the Medical Quality Review Panel.

(4) A Level 3 Certification requires a doctor to successfully complete the in-depth training required for Level 2 Certification and a third training module covering case studies and passage of a test on evaluation of permanent whole body impairment in accordance with the AMA Guides, every five years.

(A) In addition to the standard authorizations, a doctor with Level 3 Certification is authorized to:

(i) serve as a treating, RME, peer review, utilization review, or designated doctor (assuming the doctor applies and is approved under §180.21 of this title (relating to Commission Designated Doctor List); and

(ii) serve on the Medical Quality Review Panel (if the doctor applies and is approved by the commission's Medical Advisor).

(B) A doctor with Level 3 Certification has no limitations on authorization other than those imposed by licensure, the Statute and Rules, or the commission on a specific doctor pursuant to §180.26 of this title (relating to Doctor and Insurance Carrier Sanctions).

(5) As an alternative to the other Certification Levels provided by this section, a doctor who wants to participate in the Texas workers' compensation system on a limited basis may apply for Level X Certification (which stands for "eXception").

(A) A Level X Certification requires a doctor to successfully complete an internet-based training course that covers the basic requirements of a doctor treating an employee.

(B) A doctor with Level X Certification has all the authorizations that a doctor with Level 2 Certification has but:

(i) may only perform evaluations, provide care, or provide medical opinions on no more than 12 Texas worker's compensation injured employees in a twelve month period (cumulative); and

(ii) may only certify MMI and evaluate permanent whole body impairment if granted specific authorization by the commission on a per case basis pursuant to subsection (b) of this section.

(d) A doctor seeking admission to the ADL with certification other than Level X Certification shall receive training from a commission approved trainer.

(e) A person seeking to become a commission approved trainer shall apply for approval in the form and manner prescribed by the commission.

(f) For each doctor applying to be included on the commission's list of approved doctors (ADL) the commission approved trainer shall file or provide the doctor's registration and training information in the form and manner prescribed by the commission.

(g) Not withstanding any other subsection of this section:

(1) a doctor not licensed in this state shall not perform utilization reviews and/or peer reviews for an insurance carrier or its agent unless the doctor performs the reviews under the direction of a doctor who is licensed in this state, who is on the ADL at Level 3 Certification, and who has agreed to direct the doctor's reviews; and

(2) the commission may restrict or reduce a doctor's privileges or authorizations as provided in the Statute or Rules.
§180.24.Financial Disclosure.

(a) Definitions. The following words and terms when used in this section shall have the following meanings unless the context clearly indicates otherwise:

(1) Compensation arrangement--any arrangement involving any remuneration between a health care practitioner (or a member of a health care practitioner's immediate family) and a health care provider.

(2) Financial interest means:

(A) an interest of a health care practitioner, including an interest of the health care provider who employs the health care practitioner, or an interest of an immediate family member of the health care practitioner, which constitutes a direct or indirect ownership or investment interest in a health care provider, or

(B) a direct or indirect compensation arrangement between the health care practitioner, the health care provider who employs the referring health care practitioner, or an immediate family member of the health care practitioner and a health care provider.

(C) The statutory and regulatory exceptions that apply to referrals in Title 42, United States Code §1395nn(b) - (e) and have been adopted at the time of the adoption of this rule shall apply to the disclosure requirements of the interests in paragraph (1)(A) and (B) of this subsection. The Executive Director of the commission shall make an administrative determination regarding use of any revised Federal Statute or regulations and shall establish the date by which compliance with the revised statute or regulations is required. In determining whether to incorporate statutory or regulatory revisions, the Executive Director shall consider whether use is consistent with the Statute and Rules. The Executive Director shall inform the commissioners of the determination, and shall inform the public by issuing a commission advisory regarding the determination and by filing the determination for publication in the Texas Register .

(3) Immediate family member - Immediate family member or member of a doctor's immediate family means husband or wife; birth or adoptive parent, child, or sibling; stepparent, stepchild, stepbrother, or stepsister; father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law; grandparent or grandchild; and spouse of a grandparent or grandchild.

(b) Submission of Financial Disclosure Information to the Commission.

(1) In each calendar year during which a health care practitioner refers an injured employee (employee) to another health care provider in which the health care practitioner has a financial interest, the health care practitioner shall file a disclosure with the commission within 30 days of the date the first referral is made. This disclosure shall be filed for each health care provider to whom an employee is referred and shall include the information in paragraph (3) of this subsection.

(2) In addition, as a condition for a certificate of registration for the approved doctor list (ADL), the doctor shall file with the commission at the time of application for a certificate of registration for the ADL in accordance with §180.20 of this title (relating to Commission Approved Doctor List) a disclosure of financial interests of the doctor on the form and in the manner prescribed by the commission. Thereafter, a doctor registered on the ADL list shall report to the commission within 30 days, on the doctor's own initiative, any changes in the information the doctor previously provided when applying for registration.

(3) The health care practitioner's disclosures in paragraphs (1) and (2) of this subsection shall include:

(A) the disclosing health care practitioner's name, business address, federal tax identification number, professional license number, and any other unique identification number;

(B) the name(s), business address(es), federal tax identification number(s), professional license number(s), and any other unique identification number of the health care provider(s) in which the disclosing health care practitioner has a financial interest as defined in subsection (c) of this section; and

(C) the nature of the financial interest; including, but not limited to: percentage of ownership, type of ownership (e.g., direct or indirect, equity, mortgage), type of compensation arrangement (e.g, salary, contractual arrangement, stock as part of a salary payment) and the entity with the ownership (disclosing health care practitioner, the health care provider who employs the health care practitioner, or an immediate family member of the health care practitioner).

(c) Submission of Financial Disclosure Information to the Carrier. A health care practitioner who refers an employee to another health care provider in which the referring health care practitioner has a financial interest shall submit to the insurance carrier, within seven days of the referral, the following:

(1) general information required under §102.8 of this title (relating to Information Requested on Written Communications to the Commission);

(2) the information required in subsection (b)(3) of this section.

(d) Failure to disclose. In addition to any penalties provided by the Statute and Rules, failure to disclose a financial interest is subject to a penalty of forfeiture of the right to reimbursement for any services rendered on a claim during the period of noncompliance, regardless of whether the circumstances of the services themselves were subject to disclosure, and regardless of whether the services were medically necessary.

(1) Limitations on billing. A health care practitioner who rendered services on a claim during a period in which the practitioner was out of compliance with the disclosure requirements under this section, regardless of whether the circumstances of the services themselves were subject to disclosure, shall not present or cause to be presented a claim or bill to any individual, third party payer, or other entity for those services (regardless of whether the services were medically necessary).

(2) Refunds. If a health care practitioner collects any amounts that were billed for services on a claim provided during a period in which the practitioner was in noncompliance with the disclosure requirements of this section, regardless of whether the circumstances of the services themselves were subject to disclosure, the practitioner shall be liable to the individual or entity for, and shall timely refund, any amounts collected (regardless of whether the services were medically necessary).

(3) Rebuttable Presumption. A referral for services to a health care provider by a health care practitioner under circumstances which required a disclosure under this section, but which was not timely disclosed as required, creates a rebuttal presumption that the services were not medically necessary.
§180.25.Improper Inducements, Influence and Threats.

(a) Offering, paying, soliciting, or receiving an improper inducement relating to medical benefit delivery is prohibited as are improper attempts to influence medical benefit delivery, including through the making of improper threats. This section applies to all participants in the workers' compensation system and their agents.

(b) The following specific acts will be deemed to be an improper inducement, influence or threat:

(1) Intentionally, knowingly or wilfully soliciting or receiving any remuneration (including, but not limited to, any kickback, bribe, or rebate) in return for referring an injured employee (employee) to a person (either the person soliciting or receiving the inducement or another person):

(A) for the furnishing or arranging for the furnishing of any item, treatment or service for which payment may be made in whole or in part under the Statute or Rules; or

(B) in return for purchasing, leasing, ordering, or arranging for or recommending purchasing, leasing, or ordering any good, facility, service, treatment or item for which payment may be made in whole or in part under the Statute or Rules.

(2) Intentionally, knowingly or wilfully offering or paying any remuneration (including, but not limited to, any kickback, bribe, or rebate) in return for referring an employee to a person (either the person offering or paying the inducement or another person):

(A) for the furnishing or arranging for the furnishing of any item, treatment or service for which payment may be made in whole or in part under the Statute or Rules; or

(B) in return for purchasing, leasing, ordering, or arranging for or recommending purchasing, leasing, or ordering any good, facility, service, treatment or item for which payment may be made in whole or in part under the Statute or Rules.

(3) Except as provided by Texas Labor Code §408.0222, providing any financial incentive or promising an employee evaluation reports or other medical opinions that could enhance the employee's income benefits or keep an employee off of work as an inducement to have the employee treat with the provider or comply with the provider's proposed treatment.

(4) Intentionally, knowingly or wilfully offering or soliciting an inducement in return for selecting a particular health care provider for the furnishing or arranging for the furnishing of any item, treatment or service (including purchasing or leasing) for which payment may be made in whole or in part under the Statute or Rules; or intentionally, knowingly or wilfully offering or soliciting an inducement which may reasonably tend to cause a particular provider to be selected (excluding a convenience, such as: transportation, translator services, claim filing information, etc., if generally available to all patients). Such inducement is improper whether offered directly or indirectly, overtly or covertly, in cash or in kind.

(5) Intentionally, knowingly or wilfully making, presenting, filing or threatening to make, present or file any frivolous claim or assertion against a system participant, medical peer reviewer, or any other person performing duties arising under the Statute or Rules, with the commission or any licensing, certifying, regulatory or investigatory body.

(c) The exceptions that apply to subsection (b)(1) and (2) of this section are those that apply to analogous provisions in Title 42, United States Code §1320a-7b(3). The exceptions shall apply to subsection (b)(1) and (2).
§180.26.Doctor and Insurance Carrier Sanctions.

(a) This section is in addition to and does not affect sanctions provided by Statute or by rules adopted under §415.023(b) or other Rules and it establishes:

(1) the grounds (conduct, actions, inactions, and events) that will require the Executive Director to delete a doctor from the Approved Doctor's List (ADL);

(2) the grounds that allow the commission to delete a doctor from the ADL or otherwise issue a sanction against a carrier or doctor;

(3) the evidence the commission may consider as conclusively establishing the grounds to delete a doctor or issue a sanction; and

(4) the types of sanctions the commission may issue.

(b) The Executive Director shall delete from the ADL a doctor:

(1) who fails to meet the registration and certification requirements of §180.20 of this title (relating to Application for Registration/Commission Approved Doctor List);

(2) who is deceased;

(3) who requests to be removed from the list; or

(4) whose license to practice in this state is revoked, suspended, or not renewed by the appropriate licensing or certification authority. This includes but is not limited to suspensions or revocations that are deferred and voluntarily relinquishment of the license to practice.

(c) The Medical Advisor (as defined by Texas Labor Code §413.0511) shall recommend deletion of a doctor from the ADL if any of the following occur:

(1) significant violation(s) of the Statute, Rules, or a commission decision or order including but not limited to:

(A) committing a wilful or intentional violation(s) of the Statute, Rules, or a commission decision or order;

(B) having an uncorrected pattern of practice of violating the Statute, Rules, or commission decisions or orders;

(2) significant violation of other statutes or rules not administered by the commission but relevant to the provision of and payments for health care including but not limited to:

(A) committing an offense that results in the doctor being sanctioned by the Medicare or Medicaid program;

(B) pleading guilty, nolo contendere, or being convicted of, or having a professional license revoked or suspended for, a violation of state or federal statutes relating to:

(i) dangerous drugs, controlled substances, or any other drug-related offense;

(ii) fraud;

(iii) moral turpitude; or

(iv) conduct that either resulted in physical harm or otherwise endangered a person;

(C) committing an act that results in suspension, revocation of license, or issuance of a practice restriction(s) by the appropriate licensing or certification authority (even if probated);

(D) being convicted of a criminal offense which indicates an unwillingness or inability to provide quality treatment or to abide by the Statute, Rules or commission decisions or orders;

(3) professional failure to practice medicine or provide health care, including chiropractic care, in an acceptable manner consistent with the public health safety and welfare including but not limited to:

(A) engaging in any negligent practice resulting in death, injury, or substantial probability of death or injury to the provider's patients;

(B) providing substandard clinical care as evidenced by:

(i) excessive surgical care;

(ii) excessive complication rate such as having to repeat surgeries based on relevant benchmarks or having infections in excess of similar benchmarks;

(iii) practicing beyond the doctor's scope of licensure or certification;

(iv) having three or more final adverse malpractice judgments against the doctor;

(C) having an uncorrected pattern of practice of failing to timely and appropriately release employees to return to work as compared to relevant benchmarks set based upon the commission's work release guidelines;

(D) being excluded or removed from participation from other health plans for cause;

(E) losing hospital privileges for cause;

(F) abusing drugs, alcohol, or other substances;

(G) having a medical or other condition which impacts the doctor's judgment or ability to safely practice medicine;

(H) over-prescribing potentially dangerous medication such as narcotics;

(4) having a significant (uncorrected or wilful) pattern of practice relating to the delivery of health care that the commission finds is not fair and reasonable or that the commission determines does not meet professionally recognized standards of health care including but not limited to:

(A) having unjustifiable differences between the doctor's diagnoses or treatments and acceptable standards of care;

(B) unjustifiable differences between the doctor's charges or fees and the commission's Fee Guidelines;

(C) administering improper, unreasonable, or medically unnecessary treatment or services and/or seeking preauthorization for same;

(D) failing to fulfill responsibilities set out in §180.22 of this title (relating to Health Care Provider Roles and Responsibilities);

(E) submitting medical bills with a pattern of practice of including coding or billing for noncompensable injuries or areas;

(F) having a practice of submitting medical bills with a pattern of practice of inappropriate coding or which is abusive or violates Rules and Guidelines including but not limited to, such practices as upcoding and unbundling as defined in §133.1 of this title (relating to Definitions) and which, if relied upon by the carrier, has the potential of unlawfully increasing the doctor's fee;

(G) improperly or unjustifiably denying requests for preauthorization or concurrent review or issuing peer review opinions improperly or unjustifiably denying payment for reasonable and necessary medical care (as evidenced by denial rates higher than relevant benchmarks);

(H) certifying MMI and/or assigning impairment ratings in violation of the Statute and Rules (including but not limited to not complying with the applicable AMA Guides when assigning an impairment rating);

(I) making improper or unjustifiable recommendations regarding the reasonableness and medical necessity of care provided or proposed to be provided to an employee;

(J) making unnecessary referrals;

(5) Dishonest or criminal conduct including but not limited to:

(A) submitting a false statement or misrepresentation, or omitting pertinent facts when claiming payment under the Texas Workers' Compensation Act or when supplying information used to determine the right to payment under the Texas Workers' Compensation Act;

(B) submitting a false statement, information, or misrepresentation, or omitting pertinent facts, that, if relied upon by the carrier, has the potential of unlawfully increasing the doctor's fee;

(C) submitting a false statement, information, or misrepresentation, or omitting pertinent facts that, if relied upon by the insurance carrier, has the potential of cause approval of preauthorization requests for medical care that is not reasonable and necessary;

(D) submitting a false statement or misrepresentation or omitting pertinent facts to the commission which could affect the commission's decision to:

(i) include the doctor on the ADL (per §180.20 of this title);

(ii) certify the doctor for a specific certification level (per §180.23 of this title (relating to commission Approved Training for Doctors/Certification Levels)); or

(iii) otherwise allow the doctor to provide medical care in the Texas workers' compensation system;

(E) practicing without credentials or practicing with falsified credentials;

(6) refusing to refund moneys improperly paid to the doctor when ordered; or

(7) other activities which warrant deletion.

(d) The Medical Advisor may recommend a sanction against a doctor or a carrier or the deletion or suspension of a doctor from the ADL if any of the following occur:

(1) violation of the Statute, Rules, or a commission decision or order;

(2) violation of other statutes or regulations not administered by the commission but relevant to the provision of and payments for health care;

(3) conduct relating to the delivery, evaluation, or remuneration of health care that the commission finds is not fair and reasonable or that the commission determines does not meet professionally recognized standards of health care;

(4) refusing to pay moneys owed to a health care provider; or

(5) other activities which warrant sanction.

(e) Failure of a doctor to timely renew training requirements to remain on the ADL as required by §180.23 of this title, shall result in the immediate suspension of the doctor from the ADL. The doctor shall be reinstated upon providing the commission proof that the doctor has met the training requirements. A doctor who is suspended shall suspend providing treatment to employees (except in an emergency) and shall, within 7 days of suspension, notify all employees treating with him/her that he has been suspended from the ADL and that they will need to receive medical care from a different doctor.

(f) The evidence the commission may consider to establish the grounds for the issuance of a sanction of a carrier or doctor or the suspension or the deletion of a doctor include, but are not limited to:

(1) the findings of fact and legal conclusions made by a federal, state, or local court, an administrative law judge, an Independent Review Organization (whether considering a Texas workers' compensation matter or matter from another health care system), or appropriate licensing, certification, or regulatory authority on a matter in which the doctor or carrier was, or had the opportunity to be, a party;

(2) a plea of nolo contendere (no contest) by the carrier or doctor that has been accepted by a federal, state, or local court, an administrative law judge, an Independent Review Organization; (whether considering a Texas workers' compensation matter or matter from another health care system), or appropriate licensing, certification, or regulatory authority;

(3) the findings of experts working for or with the commission to evaluate a doctor or carrier (this includes, but is not limited to, members of the Medical Quality Review Panel or an Independent Review Organization); or

(4) the stipulations of an agreement entered into by the carrier or doctor who the commission is sanctioning (even if the agreement is not with the commission);

(5) information or documentation from:

(A) the commission's records;

(B) the records of an appropriate licensing or certification authority;

(C) the records of another regulatory or law enforcement authority; or

(D) the records of a system participant or the general public.

(g) Evidence of the existence of items listed in subsection (f)(1), (2), and (4) is conclusive grounds for sanction, deletion, or suspension, provided not subsequently overturned.

(h) The sanctions that the commission may recommend or impose against a doctor or carrier under this section include but are not limited to:

(1) reduction of allowable reimbursement to a doctor (such as an automatic percentile reduction on all or some types of health care);

(2) mandatory preauthorization or utilization review of all or certain health care treatments and services (such as mandatory treatment plans);

(3) required supervision or peer review monitoring, reporting, and audit (by the carrier, the commission, or an independent auditor/reviewer);

(4) deletion or suspension from the approved doctor and/or designated doctor lists;

(5) restrictions on appointment (such as reducing the roles the doctor is allowed to play in a claim or reducing the number of workers' compensation claimants the doctor will be allowed to treat except in an emergency);

(6) conditions or restrictions on a carrier regarding actions by carriers under the Act and Rules in accordance with a memorandum of understanding adopted between the commission and the Texas Department of Insurance regarding Article 21.58A, Insurance Code; and

(7) mandatory participation in training classes or other courses as established or certified by the commission.

(i) A doctor who has been deleted or suspended from the ADL shall not (except in the case of an emergency) provide medical care or receive direct or indirect remuneration under the Statute after being deleted or while suspended.
§180.27.Sanctions Process/Appeals/Restoration/Reinstatement.

(a) If the commission intends to take action under §180.26 of this title (relating to Doctor and Insurance Carrier Sanctions) or action against a designated doctor under §180.21 of this title (relating to Commission Designated Doctor List), the commission shall notify the person to be sanctioned by verifiable means of the commission's intent.

(1) Not later than 20 days after receiving the notice, a doctor may request a hearing at the State Office of Administrative Hearings by filing such a request with the Chief Clerk of Proceedings at the commission.

(2) If no request for hearing is filed within the time allowed, the recommendation for sanction will be reviewed by the commissioners at a public meeting and a decision made. If a hearing was held, the commissioners shall review the decision of the administrative law judge (ALJ) after the hearing is held.

(b) If the commission modifies, amends, or changes a recommended finding of fact or conclusion of law, or order of the ALJ, the commission's final order shall state the legal basis and the specific reasons for the change.

(c) If the commissioners vote to impose the sanction, the commission shall notify the person by issuing an order of which describes the effects of the sanction. This order shall be delivered by verifiable means with a copy to the appropriate licensing or certification authority and, if the sanction is against a doctor, copies shall be delivered to those injured employees the commission is aware are being treated by that doctor.

(d) Failure to comply with the sanction may result in further sanctioning by the commission.

(e) A person who was sanctioned can apply to have the sanction lifted (whether through restoration of privileges or recertification) by applying in the form and manner prescribed by the commission.

(1) The request shall be evaluated by the Medical Advisor and the Medical Quality Review Panel. The requestor shall be liable for the cost of the review which may include an audit of the records of the requestor.

(A) If, in the Medical Advisor's opinion, the person has all the appropriate unrestricted licenses/certifications, has overcome the conditions which resulted in sanction, and should be reinstated, the Medical Advisor shall recommend that the commissioners reinstate the doctor or restore the privileges removed or restricted by the sanction.

(B) If, in the Medical Advisor's opinion, the person has not met the requirements for reinstatement or restoration of privileges, the Medical Advisor shall notify the person by verifiable means of the intent to recommend to the commissioners that the sanctions not be lifted. Within 14 days after receiving the notice, a doctor may file a response which addresses the reasons given that the recommendation was to be made. The Medical Advisor shall review the response and make a final recommendation to the commission. The Medical Advisor shall also provide a copy of the requestor's response to the commission for consideration.

(2) The commissioners shall consider the matter in a public meeting and shall notify the requestor by verifiable means with a copy to the appropriate licensing or certification authority. If the commissioners choose to not lift the sanction, the commissioners may include in their final decision the conditions which the sanctioned person must meet before the commission will reconsider lifting the sanctions (including but not limited to the amount of time that the person must wait prior to rerequesting lifting the sanction).

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 20, 2001.
TRD-200104907

Susan Cory

General Counsel

Texas Workers' Compensation Commission

Earliest possible date of adoption: September 30, 2001

For further information, please call: (512) 804-4287