EMERGENCY RULES An agency may adopt a new or amended section or repeal an existing section on an emergency basis if it determines that such action is necessary for the public health, safety, or welfare of this state. The section may become effective immediately upon filing with the Texas Register, or on a stated date less than 20 days after filing and remaining in effect no more than 120 days. The emergency action is renewable once for no more than 60 additional days. Symbology in amended emergency sections. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 28. INSURANCE Part II. Texas Workers' Compensation Commission Chapter 126. General Provisions Applicable to All Benefits 28 TAC sec.126.10 The Texas Workers' Compensation Commission (the commission) adopts on an emergency basis an amendment to sec.126.10, concerning the commission approved list of designated doctors. The commission is simultaneously proposing an identical amendment through the regular rulemaking process. Section 126.10 was adopted, in part, to comply with an amendment to the Texas Labor Code, sec.408.122 which took effect September 1, 1995. That amendment required doctors to meet qualification and training requirements established by the commission in order to be eligible to serve as a designated doctor. In response to this mandate, the commission determined that it would promulgate and maintain an approved list of designated doctors who met the agency's qualification and training requirements. This list and the requirements for being on the list were adopted by the commission by rule in sec.126.10. The current rule in subsection (b)(7) requires that doctors included in the designated doctor list have maintained for the past three years, and continue to maintain, routine office hours for the treatment of patients in an active practice. The Commission has interpreted an active practice with routine office hours to include doctors who practice less than full time as long as the doctor has established days and hours for the treatment of patients. The purpose of the active practice requirement is to assure that designated doctors have current knowledge regarding medical developments, have a working knowledge of medical treatments and diagnoses, and have similar experience as the treating doctor. It has been brought to the commission's attention that these criteria can be met by doctors who are not able to maintain active medical practices due to an established disability but who have maintained an active practice for three consecutive years in the past and who currently actively assist other doctors in the care and treatment of patients through consultations. Under the existing rule these doctors will be prohibited from performing designated doctor examinations. Such doctors are unable to meet this active practice requirement because an established disability prevents them from maintaining their own patient load. These doctors, however, continue to maintain current knowledge of medical developments, working knowledge of medical treatments and diagnoses, and medical experience by actively assisting other doctors in the care and treatment of their patients through consultations. Subsection (b)(7) has been changed to allow those doctors to perform designated doctor examinations if they are unable to meet the active practice requirement because an established disability forced them to cease maintaining their own patient load but they have had three consecutive years of active practice immediately prior to the disability and they continue to actively assist other doctors through consultations. The commission is adopting this amendment on an emergency basis because it has found sec.126.10 as currently written will result in an imminent peril to public welfare. The specific peril to public welfare will be the withdrawal of qualified doctors from the system. If an emergency amendment is not adopted, some doctors will be unable to participate in the workers' compensation system for several months until an amendment is adopted through the normal processes. During this time, those doctors may elect to permanently leave the workers' compensation system and, thereby, deprive the system of experienced, qualified candidates to perform the role of designated doctor. In addition, as doctors leave the workers' compensation system, it will take longer to get designated doctor appointments. As a result, some claimants who are able to work will continue to receive income benefits and have no incentive to return to their jobs. This will drive up costs in the workers' compensation system and, as a result, drive up the employer's workers' compensation premiums. Other claimants, who are unable to work and should still be receiving income benefits, will have those benefits terminated by the insurance carrier and will be unable to have those benefits reinstated until the designated doctor's report is filed. This will mean injured workers with no other means of support will have to wait longer to get benefits as doctors drop out of the workers' compensation system. As a result, it is necessary to adopt this change to sec.126.10 on an emergency basis to minimize the potential for serious adverse impact to claimants. Janet Chamness, Chief of Budget, has determined that for the first period the emergency rule is in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the rule. Ms. Chamness has also determined that for the period the emergency rule is in effect the public benefits anticipated as a result of enforcing the rule will be the prevention of adverse economic impact on doctors who would otherwise be disqualified from performing designated doctor examinations, more convenient and timely appointments for designated doctor examinations, and more accurate payment of workers' compensation benefits. There will be no anticipated economic costs to persons who are required to comply with the emergency rule. There will be no difference in the cost of compliance for small businesses as compared to large businesses. The amendment is adopted on an emergency basis under the Texas Labor Code, sec.402.061, which authorizes the commission to adopt rules necessary to administer the Act; the Texas Labor Code, sec.402.061, which requires the commission to adopt rules necessary for the implementation and enforcement of the Texas Workers' Compensation Act; the Texas Labor Code, sec.408.122, as amended by House Bill 1089, 74th Legislature, 1995, effective September 1, 1995, which describes the criteria for deciding an employee's eligibility for impairment income benefits, gives the Commission the authority to choose a designated doctor to examine the employee, grants the report of the designated doctor presumptive weight in dispute resolution, and mandates that designated doctor qualification standards and impairment rating training be developed; the Texas Labor Code, sec.408.125, as amended by House Bill 1089, 74th Legislature, 1995, effective September 1, 1995, which describes the dispute resolution process to be used when there is a dispute as to an impairment rating and prohibits certain communication with the designated doctor; the Texas Labor Code, sec.413.002, which gives the Commission authority to monitor and evaluate health care providers (including designated doctors), insurance carriers, and workers' compensation claimants to ensure compliance with the rules adopted by the Commission; the Texas Government Code, sec.2001.034, which provides for the adoption of administrative rules on an emergency basis, without notice and comment. This amendment adopted on an emergency basis affects the following statutes: the Texas Labor Code, sec.402.061, which requires the commission to adopt rules necessary for the implementation and enforcement of the Texas Workers' Compensation Act; the Texas Labor Code, sec.401.011(15), which gives the definition of a designated doctor; the Texas Labor Code, sec.408.023, as amended by House Bill 1089, 74th Legislature, 1995, which describes the commission's list of approved doctors, mandates that the commission establish criteria for deleting a doctor from the list and for reinstatement of a doctor to the list; the Texas Labor Code, sec.408.122, as amended by House Bill 1089, 74th Legislature, 1995, effective September 1, 1995, which describes the criteria for deciding an employee's eligibility for impairment income benefits, gives the Commission the authority to choose a designated doctor to examine the employee, grants the report of the designated doctor presumptive weight in dispute resolution, and mandates that designated doctor qualification standards and impairment rating training be developed; the Texas Labor Code, sec.408.125, as amended by House Bill 1089, 74th Legislature, 1995, effective September 1, 1995, which describes the dispute resolution process to be used when there is a dispute as to an impairment rating and prohibits certain communication with the designated doctor; the Texas Labor Code, sec.413.002, which gives the Commission authority to monitor and evaluate health care providers (including designated doctors), insurance carriers, and workers' compensation claimants to ensure compliance with the rules adopted by the Commission; the Texas Labor Code, s413.011, which requires the commission by rule to establish medical policies and guidelines relating to: fees charged or paid for medical services for employees who suffer compensable injuries, use of medical services by employees, and fees charged, as well as requiring the commission to design medical policies to ensure the quality of medical care to achieve effective cost control; the Texas Labor Code, sec.413.044, as amended by House Bill 1089, 74th Legislature, 1995, effective September 1, 1995, which empowers the Commission to seek sanctions against a designated doctor who is not in compliance with the Workers' Compensation Act or Commission rules; the Texas Labor Code, sec.413.053, which requires the commission by rule to establish standards of reporting and billing governing both form and content. sec.126.10. Commission Approved List of Designated Doctors. (a) (No change.) (b) Doctors included in the Designated Doctor List shall: (1)-(6) (No change.) (7) have maintained for the past three years and continue to maintain routine office hours for the treatment of patients in an active practice or establish that disability has forced the doctor to cease maintaining an active practice with routine office hours but that the doctor had an active practice for three consecutive years immediately prior to the disability and continues to actively assist other doctors in the care and treatment of their patients through consultations
    ; and (8) (No change.) (c)-(g) (No change.) Issued in Austin, Texas, on January 12, 1996. TRD-9600458 Susan Cory General Counsel Texas Workers' Compensation Commission Effective date: January 12, 1996 Expiration date: May 12, 1996 For further information, please call: (512) 440-3700