Part 2.
TEXAS WORKERS' COMPENSATION COMMISSION
Chapter 116.
GENERAL PROVISIONS--SUBSEQUENT INJURY FUND
28 TAC §116.11, §116.12
The Texas Workers' Compensation Commission (the commission)
proposes amendments to §116.11, concerning Request for Reimbursement
or Refund from the Subsequent Injury Fund and §116.12, Subsequent Injury
Fund Payment/Reimbursement
House Bill 2600 (HB-2600) passed by the 77th Texas Legislature amended
Texas Labor Code §403.006 to include new liabilities for the subsequent
injury fund (SIF) for claims based on compensable injuries that occur on or
after July 1, 2002. The statutory amendments provided for reimbursement from
the SIF for the portion of income benefits that are attributable to multiple
employment and are paid pursuant to §408.042. Reimbursement was also
provided for medical benefits for initial pharmaceutical services, that are
paid pursuant to §413.0141 for claims later found to be non-compensable.
Amendments to §116.11 and §116.12 are proposed to add these new
eligible types of carrier requests for SIF reimbursement to the rules and
to govern the documentation, application process, and other administrative
requirements to implement the statutory provisions. The proposed amended rules
address carrier requests for reimbursement, and establish the criteria for
making these requests. Other commission rules address, or will address, the
entitlement to the income or medical benefits.
An additional liability added to the SIF through this legislation is the
payment of an assessment of feasibility and the development of regional networks
established under §408.0221 of the Texas Labor Code. The cost for this
liability is a one-time expense and is limited to an amount not to exceed
$1.5 million. Any on going regional network administration and management
services shall be included in the fees for health care services paid by insurance
carriers participating in the regional networks.
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.
Proposed Amendments to §116.11 - Request
for Reimbursement or Refund from the Subsequent Injury Fund
Proposed amendments to §116.11(a) add multiple employment and initial
pharmaceutical coverage to the list of eligible payments for which carriers
may request reimbursement from the Subsequent Injury Fund. The statutory provision
for reimbursement for multiple employment applies only to a compensable injury
that occurs on or after July 1, 2002, and the rule reflects this.
Proposed §116.11(c) establishes a timeframe for submitting requests
related to multiple employment benefits. Rather than requiring carriers to
provide multiple employment benefit payments until the exhaustion of income
benefits prior to submitting a request for reimbursement from the SIF, carriers
will be required to file these requests annually. Carriers must submit requests
for reimbursement for multiple employment claims to the Subsequent Injury
Fund no later than the end of the fiscal year following the fiscal year in
which such benefits were paid by the carrier. For example, requests for reimbursement
for benefits paid by the carrier during fiscal year 9/1/02 through 8/31/03
must be submitted prior to 8/31/04. Requests for reimbursement may be submitted
in the fiscal year in which they were paid by the carrier.
Proposed §116.11(d) establishes a timeframe for submitting requests
related to initial pharmaceutical coverage. Requests pursuant to §413.0141
shall be submitted in the same or in the following fiscal year after final
resolution of any dispute that determines the injury is not compensable.
Requests for reimbursement related to multiple employment and initial pharmaceutical
benefits that are not submitted within the required timeframe will not be
reviewed for reimbursement. In accordance with Texas Labor Code §413.0141
and HB-2600, the commission may adopt rules regarding initial pharmaceutical
coverage on or after September 1, 2002. As a result, 116.11(a)(4) will not
apply unless and until such a rules are adopted.
Proposed new §116.11(e)(6) describes the information and documentation
required for submitting a request for reimbursement to the SIF for amounts
paid pursuant to the Texas Labor Code §408.042 (relating to Average Weekly
Wage for Employees with Multiple Employment). Specifically, an insurance carrier
will be required to submit wage information from all multiple employment held
at the time of the injured employee's on-the-job injury as well as information
documenting the wage amounts and the difference, if any, between wages paid
by the claim employer as defined in proposed Rule 122.5 (relating to Employee's
Multiple Employment Wage Statement) and total wages from all employment
Similarly, proposed new §116.11(e)(7) outlines the requirements for
requests for reimbursement pursuant to Texas Labor Code §413.0141 (relating
to Initial Pharmaceutical Coverage). This subsection will require insurance
carriers to submit information and documentation of payment for pharmaceuticals
within the first seven days following the date of injury as well as documentation
of the final resolution of any dispute which determines the injury is compensable.
In accordance with Texas Labor Code §413.0141, the commission may
adopt rules regarding initial pharmaceutical coverage on or after September
1, 2002. As a result, the provisions of proposed new §116.11(e)(7) are
not applicable unless and until such a rule is adopted.
Proposed Amendments to §116.12 - Subsequent
Injury Fund Payment/Reimbursement Schedule
Proposed amendments to §116.12(a) add and prioritize the reimbursement
of requests by carriers made pursuant to §408.042(g) of the Act relating
to multiple employment and §413.0141 of the Act relating to initial pharmaceutical
coverage. These two additional types of requests for reimbursement have been
assigned a lesser priority as a result of the authority provided by Texas
Labor Code §403.006(d) which allows the commission to make partial payment
of these requests based on actuarial assessment of available funding.
Proposed subsection (e) describes the process the commission will use to
calculate partial payment of requests for reimbursement for multiple employment
and/or initial pharmaceutical coverage, if partial payments are necessary.
If requests for reimbursements under this subsection are reimbursed with partial
payment, no further future recovery will be available from the SIF for any
non-reimbursed portion.
Brent Hatch, Director of Customer Services, has determined that for the
first five-year period the proposed amended rules are in effect the fiscal
implications for state and local governments as a result of enforcing or administering
the rules are as follows: there will be an increase in administrative costs
to the commission resulting from a significant increase in the number of requests
for reimbursement from the SIF, which will likely require additional SIF staff
to process. In addition, pursuant to §403.006(d) of the Act, the commission
will also incur the cost of an actuary to provide biennial assessments of
the amount of funding available prior to a commission determination that partial
payments of insurance carrier claims are required. There will be no impact
on state revenue.
According to the fiscal note for HB-2600, the five-year cost to the SIF
in benefits is expected to be $60.8 million. The analysis of the SIF costs
for that t fiscal note were based on a total of 4,387 claims eligible for
such reimbursement each year.
The increase in SIF reimbursement obligations as a result of changes to
the Texas Labor Code and the requirement to maintain 120% of the projected
unfunded balance will likely require the assessment of an additional maintenance
tax on insurance carriers. Presently, the existing assessment of maintenance
tax on insurance carriers is 1.63% with a 2% statutorily established cap.
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 amended rules as proposed.
Any potential fiscal impact is largely a result of the new statutory provisions
providing for reimbursements from the SIF for additional types of payments.
The need for partial payment of insurance carrier claims related to multiple
employment and initial pharmaceutical coverage will be based on an actuarial
assessment of the funding available for the next biennium. The rate of this
assessment must be adequate to provide 120 percent of the projected unfunded
liabilities. The commission's actuary or financial advisor shall report the
financial condition and projected assets and liabilities of the SIF biannually
(every 6 months) to the Research and Oversight Council on Workers' Compensation.
Mr. Hatch has also determined that for each year of the first five years
the amended rules as proposed are in effect the public benefits anticipated
as a result of enforcing the rule will be as follows.
System participants will benefit from the amended rules as proposed as
a result of compliance with the changes to the Texas Labor Code and the establishment
of requirements for requests for reimbursements and payment priorities.
Employees who hold multiple employment will experience an increased benefit
rate as a result of the inclusion of lost wages from the multiple employment
in the event they experience a compensable work-related injury. Provisions
for reimbursement for initial pharmacy services payments that are made in
a non-compensable injury, should reduce the likelihood that a pharmacy may
decline to fill an initial prescription. This should benefit employees by
securing timely medical treatment and should benefit employees and employers
to the extent that timely treatment facilitates an faster return to productive
work and full wages.
The proposed amended rules should reduce the number of disputes/refusals
to pay for initial pharmacy services. To that extent, health care providers
such as pharmacies will benefit from timely payment from carriers.
All system participants (employees, employers, health care providers, carriers)
should benefit from reduced inconveniences and disputes associated with securing
timely and appropriate treatment and medical benefits.
Although insurance carriers will face the potential of paying additional
benefits for lost wages attributable to non-claim employment and for payment
of initial seven day pharmacy services, this should not result in significant
increase in costs to carriers because the additional costs are potentially
reimbursable from the SIF. However, if SIF funds are not sufficient to reimburse
carriers for these multiple employment and initial pharmacy payments, benefit
payments by carriers will increase and this may ultimately increase premium
rates for some or all employers. Insurance carriers will likely experience
increased administrative costs to keep track of the carrier's payments and
file requests for reimbursement, but those costs should be minimal.
There will be no anticipated economic cost for injured employees and healthcare
providers as a result of this proposed rule.
There will be no difference in the costs of compliance for small businesses
or micro-businesses as compared to larger businesses. There will be no adverse
economic impact on small businesses or micro-businesses (see the previous
economic impact analysis).
Any potential fiscal impact is largely a result of the new statutory provisions
providing for reimbursements from the SIF for additional types of payments.
Comments on the proposal must be received by 5:00 p.m., April 8, 2002.
You may comment via the Internet by accessing the commission's website at
Commenters are requested to clearly identify by number the specific rule
and subsection commented upon. The commission may not be able to respond to
comments that are not 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 March 21, 2002, 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 amendments 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, manner and procedure for transmission of information to the Commission;
Texas Labor Code, §402.061, which authorizes the commission to adopt
rules necessary to administer the Act, the Texas Labor Code §§403.002
- 403.007, which address maintenance tax and the subsequent injury fund; the
Texas Labor Code §406.010, which authorizes the commission to adopt rules
regarding claims service, the Texas Labor Code §408.042, which pertains
to average weekly wage for part-time employees or employees with multiple
employment and provides for reimbursement to insurance carriers for payments
attributable to multiple employment; and the Texas Labor Code §413.0141,
which provides initial pharmaceutical coverage and provides for reimbursement
to insurance carriers of payments made for such coverage.
The amendments are proposed under the Texas Labor Code, §401.011, §401.024, §402.042, §402.061, §§403.002
- 403.007, §406.010, §408.042, §413.0141.
No other statute, code, or article is affected by the proposed rule amendments.
§116.11. Request for Reimbursement or Refund from the Subsequent Injury Fund.
(a)
A carrier may request:
(1)
reimbursement from the Subsequent Injury Fund ("SIF") for
an overpayment of income, death, or medical benefits when the carrier has
made an unrecoupable overpayment pursuant to decision of a hearing officer
or the appeals panel or an interlocutory order, and that decision or order
is reversed or modified by final arbitration, order, or decision of the Commission,
the State Office of Administrative Hearings, or a court of last resort; or
(2)
a refund of death benefits paid to the SIF pursuant to §132.10
of this title (relating to Payment of Death Benefits to the Subsequent Injury
Fund) prior to a beneficiary being eligible to receive death benefits;
(3)
for a compensable injury that occurs on
or after July 1, 2002: a reimbursement from the SIF for the amount of income
benefits paid to a worker that is attributable to multiple employment and
is paid pursuant to §408.042 relating to Multiple Employment; or
(4)
a reimbursement from the SIF made in accordance
with rules adopted by the Commission pursuant to §413.0141, Initial Pharmaceutical
Coverage for injuries later determined not to be compensable.
(b)
The amount of reimbursement that the carrier may be entitled
to is equal to the amount of unrecoupable overpayments paid and does not include
any amounts the carrier overpaid voluntarily or as a result of its own errors.
An unrecoupable overpayment of income benefits for the purpose of reimbursement
from the SIF only includes those benefits that were overpaid by the carrier
pursuant to an interlocutory order or decision which were finally determined
to be not owed and which, in the case of an overpayment of income benefits
to the employee, were not recoverable or convertible from other income benefits.
(c)
Requests for reimbursement pursuant to §408.042(g)
shall be submitted on an annual basis for the payments made during the same
or previous fiscal year. The fiscal year begins each September 1st and ends
on August 31st of the next calendar year. For example, carrier payments made
during the fiscal year from 9/1/02 through 8/31/03 must be submitted prior
to 8/31/04. Any claims for carrier payments related to multiple employment
that are not submitted within the required timeframe will not be reviewed
for reimbursement.
(d)
Requests for reimbursement pursuant to §413.0141
shall be submitted in the same or in the following fiscal year after final
decision of the Commission or the court of last resort determines the injury
is not compensable. The fiscal year begins each September 1st and ends on
August 31st of the next calendar year. For example, if a carrier receives
a final order determining a claim is not compensable during the fiscal year
from 9/1/02 through 8/31/03, the request for reimbursement pursuant to §413.0141
must be submitted prior to 8/31/04. Any claims for carrier payments related
to initial pharmaceutical coverage that are not submitted within the required
timeframe will not be reviewed for reimbursement.
(e)
[
(1)
a claim-specific summary of the reason the carrier is seeking
reimbursement or refund;
(2)
a detailed payment record showing the dates of payments,
the amounts of the payments, the payees, and the periods of benefits paid,
as well as documentation that shows that the overpayment was unrecoupable
as described in subsection (b), if applicable;
(3)
the name, address, and federal employer identification
number of the payee for any reimbursement or refund that may be due;
(4)
for requests for reimbursement of an unrecoupable overpayment
made pursuant to a modified or overturned decision or interlocutory order
pursuant to subsections (a)(1) and (b) of this section:
(A)
a copy of the decision or interlocutory order under which
the carrier made the unrecoupable overpayment and the final decision of the
Commission, State Office of Administrative Hearings, or the judgment of the
court of last resort that modified or overturned the decision or interlocutory
order;
(B)
copies of all reports by the employer including, but not
limited to, the Employer's First Report of Injury, the Wage Statement, and
all Supplemental Reports of Injury for overpayments of income benefits; and
(C)
if an overpayment of medical benefits, copies of all medical
bills and preauthorization request forms associated with the overpayment for
overpayments of medical benefits;
(5)
if the request is for a refund of death benefits paid to
the SIF pursuant to §132.10 prior to a beneficiary being eligible to
benefits, the requestor must provide copies of:
(A)
the documentation the beneficiary provided with the claim
for death benefits under §122.100 of this title (relating to Claim for
Death Benefits); and
(B)
the agreement, the final award of the Commission, or the
final judgment of a court of competent jurisdiction determining that the beneficiary
is entitled to the death benefits, if entitlement to benefits had been disputed;
and
(6)
if the request is for reimbursement for
the income benefits attributable to multiple employment and paid by the carrier
pursuant to Texas Labor Code §408.042 (relating to Average Weekly Wage
for Employees with Multiple Employment; Collection of Wage Information), in
addition to the requirements in subsection (e)(1) through (e)(3) of this section,
the requestor must also include the following information and documentation
:
(A)
Wage information from all multiple employment held at the
time of the work related injury pursuant to §122.5 of this title (relating
to Employee's Multiple Employment Wage Statement);
(B)
All information documenting the wage amounts and the difference,
if any, between wages paid by the claim employer (as defined in §122.5
of this title ) and total wages from all employment.
(7)
if the request is for reimbursement for
the amounts paid pursuant to Texas Labor Code §413.0141 (relating to
Initial Pharmaceutical Coverage), in addition to requirements in subsection
(e)(1) through (e)(3) of this section, the requestor must also include the
following information and documentation :
(A)
documentation of payment of Initial Pharmaceutical Coverage
(first seven days following the date of injury);
(B)
documentation of the final resolution of any dispute which
determines the injury is not compensable either from the Commission or court
of last resort.
(8)
[
§116.12.Subsequent Injury Fund Payment/Reimbursement Schedule.
(a)
Claims against the Subsequent Injury Fund (SIF) shall be
paid in the following priority:
(1)
claims by carriers for reimbursement made pursuant to §403.007
of the Act and §132.10(g) of this title (relating to Payment of Death
Benefits to the Subsequent Injury Fund);
(2)
claims by injured workers for lifetime benefits, as provided
by §408.162 of the Act; [
(3)
claims by carriers for reimbursement, made pursuant to §410.209
and §413.055 of the Act and §116.11 of this title (relating to Request
for Reimbursement or Refund from the Subsequent Injury Fund).
; and
(4)
claims by carriers for reimbursement made
pursuant to §408.042(g) of the Act relating to multiple employment and
those in accordance with commission rule(s) adopted pursuant to §413.0141
of the Act relating to initial pharmaceutical coverage.
(b)
The SIF uses the fiscal year September 1 through August
31.
(c)
Claims described in section (a)(1)
,
[
(d)
Following the end of the fiscal year, the administrator
of the SIF shall review:
(1)
the SIF available balance and projected revenues and liabilities;
(2)
the current claims against the SIF, in the order of priorities
set out in subsection (a) of this section; and
(3)
all completed requests for reimbursement as described in §116.11
and §132.10 of this title, received during the prior fiscal year, except
as provided in subsection (g) of this section.
(e)
In accordance with §403.006(d) of
the Act, if the commission determines that partial payments of the claims
described in subsection (a)(4) of this section is necessary, partial payments
shall be calculated in the following manner:
(1)
The total amount of completed eligible requests for reimbursement
submitted under subsection (a)(4) that are received during the previous fiscal
year will be used to establish a baseline amount.
(2)
The baseline amount will be divided by the total amount
of SIF funding available as determined in accordance with the Act.
(3)
The resulting fraction will be equally applied to all claims
submitted under subsection (a)(4) to determine the partial reimbursement amount.
(4)
If reimbursements requests are paid with partial payments,
no further future recovery is available from the subsequent injury fund for
the non-reimbursed portion of that particular request.
(f)
[
(g)
[
(h)
[
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 February 22, 2002.
TRD-200201098
Susan Cory
General Counsel
Texas Workers' Compensation Commission
Earliest possible date of adoption: April 7, 2002
For further information, please call: (512) 804-4287
Subchapter K. TREATMENT GUIDELINES
(c)
]The request for reimbursement
or refund from the SIF shall be filed with the SIF administrator and shall
be in writing and include:
(6)
]Any other documentation reasonably
required by the SIF administrator to determine entitlement to reimbursement
or payment from the SIF and the amount of reimbursement to which the carrier
is entitled.
and
]
and
](a)(2)
and (a)(3)
may be reviewed and ordered paid by the
SIF administrator at any time during the fiscal year.
(e)
]
Following the end of each
fiscal year,
[
After review
] the SIF administrator shall,
no later than October 30, enter appropriate orders for claims described in
subsection (a)(3). The order shall specify the amount the SIF shall pay to
the carrier.
(f)
]The SIF administrator shall
submit orders to the state comptroller for payment and send a copy of the
order to the requesting carrier.
(g)
] The SIF administrator will
refrain from acting on a carrier's request for reimbursement or refund from
the SIF until final resolution of the claim by a final decision of the Commission,
State Office of Administrative Hearings or the court of last resort.
Chapter 134.
BENEFITS--GUIDELINES FOR MEDICAL SERVICES, CHARGES, AND PAYMENTS