Part 2.
TEXAS WORKERS' COMPENSATION COMMISSION
Chapter 103.
AGENCY ADMINISTRATION
Subchapter B. AGENCY CONTRACTS
28 TAC §103.101
The Texas Workers' Compensation Commission (the commission)
proposes new §103.101, concerning vendor protest procedures. The proposed
rule provides the procedure an aggrieved party must follow to resolve a dispute
in connection with the solicitation, evaluation or award of any contract with
the commission. The proposed new rule provides vendors a procedure to resolve
protests relating to the solicitation, evaluation, or award of a contract
by the commission. Senate Bill 1752 of the 75th Legislature, 1997, added Government
Code §2155.076 to the State Purchasing Act to require each state agency
to develop and adopt protest procedure rules for resolving vendor protests
relating to purchasing issues. Section 2155.076 requires an agency's rules
to be consistent with the General Services Commission (GSC) rules, which are
located in 1 TAC Chapter 111. The
Texas Register
shows the proposed text of the new rule, and should be read to determine
all proposed language.
The proposed new rule provides a procedure for an actual or proposed bidder,
offeror or contractor to follow to protest the solicitation, evaluation, or
award of a contract. The contents of the protest, time period for filing a
protest, and notice required is set out in the proposed new rule. The commission
is given the authority to settle the protest, or if it is not resolved, to
issue a written determination on the protest. The proposed new rule provides
for the appeal of the commission's decision to the executive director whose
decision is the final administrative action of the commission. The proposed
rule requires that in the event of a protest, documents collected in association
with the solicitation, evaluation, and/or award of a contract be maintained
by the commission for four years.
Hope Teneyuque, Assistant Director of Support Services, has determined
that for the first five-year period the proposed rule is in effect, there
will be minimal fiscal implications for state or local governments as a result
of enforcing or administering the rule. In the event of a vendor protest,
the commission would incur cost for staff time to process the protest and
associated administrative costs as imposed by the statutory and General Service
Commission rule requirements.
For the first five-year period the proposed rule is in effect the anticipated
public benefit, as a result of enforcing the proposed rule, will be a more
efficient and effective resolution of vendor protests relating to purchasing
issues. Vendor participation and satisfaction should also increase due to
the consistency and fairness of the proposed rule.
There will be no anticipated new economic costs to persons who are required
to comply with the proposed rule. There will be no difference in the costs
of compliance for small businesses or micro businesses as compared to large
businesses. There will be no adverse economic impact on small businesses or
micro-businesses, because the commission currently follows the statute and
GSC rule to resolve vendor protests, and the proposed rule is consistent with
the GSC rule.
Comments on the proposal or requests for public hearing must be received
by 5:00 p.m., May 29, 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.
This proposed new rule affects the following statues: the Texas Labor Code §402.041,
which sets out the role of the executive director, 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 for 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 Government Code §2155.076, which requires each state agency
to develop and adopt protest procedure rules for resolving vendor protests
relating to purchasing issues.
The new rule is proposed under the Texas Labor Code §402.041,
which sets out the role of the executive director, 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 Government Code §2155.076, which requires each state agency
to develop and adopt protest procedure rules for resolving vendor protests
relating to purchasing issues.
§103.101.Vendor Protest Procedures.
(a)
Any actual or prospective bidder, offeror or contractor
who is aggrieved in connection with the solicitation, evaluation or award
of a contract may formally protest to the commission. All such protests must
be in writing and received in the commission's office within 10 calendar days
after the protesting party knows, or should have known, of the occurrence
of the action which is protested. Copies of the protest must be mailed or
delivered by the protesting party to all other interested parties. For purposes
of this section, "interested parties" means all vendors who have submitted
bids, offers, or proposals for the contract involved and any protesting party.
(b)
In the event of a timely protest or appeal under this section,
the commission shall not proceed further with the solicitation or award the
contract unless the executive director of the commission or the executive
director's designee makes a written determination that the award of contract
without delay is necessary to protect substantial interests of the state.
(c)
All protests must be sworn to, notarized, and contain:
(1)
a specific identification of the statutory or regulatory
provision(s) that the action complained of is alleged to have violated;
(2)
a specific description of each act alleged to have violated
the statutory or regulatory provision identified in paragraph (1) of this
subsection;
(3)
a detailed statement of the relevant facts;
(4)
an identification of the issue or issues to be resolved;
(5)
argument and authorities in support of the protest;
(6)
the subsequent action the protesting party is requesting;
and
(7)
a statement that copies of the protest have been mailed
or delivered to the commission and all other identifiable interested parties.
(d)
The commission has the authority to settle and resolve
the protest. After receiving the protest, the commission shall immediately
seek the advice of the Office of Legal Services of the commission. The commission
may solicit written responses to the protest from other interested parties.
If the protest is not resolved by mutual agreement, the commission will issue
a written determination on the protest.
(1)
If the commission determines that no violation of any rule
or statute has occurred, the commission shall so inform the protesting party
and all other interested parties by letter, which sets forth the reasons for
the determination.
(2)
If the commission determines that a violation of a rule
or statute has occurred in a case where a contract has not been awarded, the
commission shall so inform the protesting party and all other interested parties
by letter which sets forth the reasons for the determination and the appropriate
remedial action.
(3)
If the commission determines that a violation of a rule
or statute has occurred in a case where a contract has been awarded, the commission
shall so inform the protesting party and all other interested parties by letter
which sets forth the reasons for the determination. The determination may
include termination of the contract.
(e)
Any interested party may appeal the commission's determination
on a protest to the executive director. An appeal of the commission's determination
must be in writing and must be received in the executive director's office
no later than 10 working days after the date of the commission's determination.
The appeal shall be limited to review of the commission's determination. Copies
of the appeal must be mailed or delivered by the appealing party to the commission
and all other interested parties.
(f)
The Office of Legal Services shall review the protest,
the commission's determination, and the appeal, and prepare a written opinion
with recommendation to the executive director.
(g)
Unless the executive director or the executive director's
designee in his/her sole discretion determines that there is good cause, a
protest or appeal that is not filed timely will not be considered.
(h)
A decision issued in writing by the executive director
or the executive director's designee shall be the final administrative action
of the commission.
(i)
In the event of a protest, all documents collected by the
commission as part of a solicitation, evaluation, and/or award of a contract
shall be retained by the commission for a period of four years.
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 April 13, 2001.
TRD-200102118
Susan Cory
General Counsel
Texas Workers' Compensation Commission
Earliest possible date of adoption: May 27, 2001
For further information, please call: (512) 804-4286
28 TAC §§103.300 - 103.322
The Texas Workers' Compensation Commission (the commission)
proposes new §§103.300 - 103.322 concerning the negotiation and
mediation of certain breach of contract claims asserted by contractors against
the commission. These new sections are necessary to establish procedures for
negotiation and mediation in accordance with Texas Government Code, Chapter
2260, which requires each state agency to adopt rules to govern the negotiation
and mediation of certain claims for breach of contract.
Proposed §§103.300 - 103.322 are based on model rules adopted
by the Office of the Attorney General. Section 103.300 states that the purpose
of the rules is the implementation of Government Code, Chapter 2260. Section
103.301 sets out the applicability of the rules. Section 103.302 contains
the definitions of terms used in the proposed rules. Section 103.303 establishes
that the procedures in the proposed rules are a prerequisite to suit under
the Civil Practice & Remedies Code, Chapter 107, and the Government Code,
Chapter 2260. Section 103.304 states that the provisions do not waive sovereign
immunity to suit or liability.
Section 103.305 sets out the procedures for a contractor to file a claim
with the commission. Section 103.306 sets out the procedures for the commission
to assert a counterclaim against the contractor.
Section 103.307 requires that the parties, in accordance with the timetable
set out in §103.308, negotiate to attempt to resolve claims and counterclaims.
Section 103.309 describes the conduct of negotiation. Section 103.310 requires
the parties to disclose their settlement approval procedures prior to negotiations.
Section 103.311 provides that an agreement to settle a claim must be in writing,
signed by representatives of the contractor and the commission who have authority
to bind each party. Section 103.312 provides that each party is responsible
for its own costs incurred during negotiations.
Section 103.313 describes the process by which a contractor may request
a contested case hearing before the State Office of Administrative Hearings
on an unresolved claim. Section 103.314 describes the timetable for mediation
of a claim. Sections 103.315 through 103.322 describe the mediation process
and procedures.
The
Texas Register
shows the proposed text
of the new rules and should be read to determine all proposed language.
Hope Teneyuque, Assistant Director, Support Services, has determined that
for the first five- year period the proposed rule is in effect the fiscal
implications for state or local governments as a result of enforcing or administering
the rule will be the same as for others required to comply with the rules
as described in the next paragraph. 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 rule as proposed.
Ms. Teneyuque has also determined that for each year of the first five
years the rule as proposed is in effect the public benefits anticipated as
a result of the proposed sections will be the timely and effective resolution
of contract disputes. The proposed rules provide a process by which claims
for breach of contract can be asserted and resolved. There may be some economic
cost to persons required to comply with the proposed rules. There will be
no adverse economic impact on small businesses, micro-businesses or large
businesses. There is no difference in the costs of compliance for small businesses
or micro-businesses as compared to large businesses. Although the negotiation
provisions do not impose economic costs on persons required to comply with
the proposed rules because the proposed rules do not require the use of any
particular negotiation mode or method, there are costs associated with the
negotiation process in terms of personnel time and associated administrative
expenses. The proposed rules require only that the parties negotiate their
dispute, and the mode or method of negotiation is determined by the parties.
The proposed rules provide that, absent an agreement to the contrary, the
parties are responsible for costs they individually incur in the course of
negotiation or other alternative dispute resolution process. Similarly, the
mediation provisions do not impose economic costs on persons required to comply
with the proposed rules unless the parties choose to mediate. If the parties
choose to mediate a dispute, the proposed rules provide that, absent an agreement
to the contrary, the parties will share the costs of the mediator and each
parties is individually responsible for additional costs incurred in the course
of the mediation.
Comments on the proposal or requests for public hearing must be received
by 5:00 p.m., May 29, 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 commissioner's review of those comments, or based upon the commissioner's
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.
The proposed new rules affect the following statutes: the Texas Government
Code, §2260.052 which provides that each unit of state government with
rulemaking authority shall develop rules to govern the negotiation and mediation
of a claim for a breach of contract; The Texas Labor Code, §402.061 which
authorizes the commission to adopt rules necessary to administer the Texas
Workers' Compensation Act; the Texas Labor Code, §401.024 which allows
the commission to contract with a data collection agent; the Texas Labor Code, §402.042
which sets out the general powers and duties of the executive director of
the commission; the Texas Labor Code, §406.004 which requires employer
notification to the commission of noncoverage election and which allows the
commission to contract with the Texas Employment Commission or the Comptroller
for assistance in collecting employer notification; the Texas Labor Code, §413.003
which allows the commission to contract with a private or public entity to
perform a duty or function of the Medical Review Division; the Texas Labor
Code, §413.051 which allows the commission to contract with entities
to develop, maintain, or review medical policies and fee guidelines and compliance
therewith.
The new rules are proposed under the Texas Government Code, §2260.052
which provides that each unit of state government with rulemaking authority
shall develop rules to govern the negotiation and mediation of a claim for
a breach of contract; The Texas Labor Code, §402.061 which authorizes
the commission to adopt rules necessary to administer the Texas Workers' Compensation
Act; the Texas Labor Code, §401.024 which allows the commission to contract
with a data collection agent; the Texas Labor Code, §402.042 which sets
out the general powers and duties of the executive director of the commission;
the Texas Labor Code, §406.004 which requires employer notification to
the commission of noncoverage election and which allows the commission to
contract with the Texas Employment Commission or the Comptroller for assistance
in collecting employer notification; the Texas Labor Code, §413.003 which
allows the commission to contract with a private or public entity to perform
a duty or function of the Medical Review Division; the Texas Labor Code, §413.051
which allows the commission to contract with entities to develop, maintain,
or review medical policies and fee guidelines and compliance therewith.
§103.300.Purpose.
This subchapter governs the negotiation and mediation of a claim of
breach of contract asserted by a contractor against the Texas Workers' Compensation
Commission (commission) under Government Code Chapter 2260.
§103.301.Applicability.
(a)
This subchapter does not apply to an action of the commission
for which a contractor is entitled to a specific remedy pursuant to state
or federal constitution or statute.
(b)
This subchapter does not apply to contracts:
(1)
between the commission and the federal government or its
agencies, another state or another nation;
(2)
between two or more units of state government;
(3)
between the commission and a local governmental body, or
a political subdivision of another state;
(4)
between a subcontractor and a contractor;
(5)
subject to §201.112 of the Transportation Code;
(6)
within the exclusive jurisdiction of state or local regulatory
bodies;
(7)
within the exclusive jurisdiction of federal courts or
regulatory bodies; or
(8)
that are solely and entirely funded by federal grant monies
other than for a project defined in §103.302 of this title (relating
to Definitions);
§103.302.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meaning, unless the context clearly indicates otherwise:
(1)
Claim--A demand for damages by the contractor based upon
the commission's alleged breach of a contract.
(2)
Commission--Texas Workers' Compensation Commission
(3)
Contract--A written contract between the commission and
a contractor by the terms of which the contractor agrees either:
(A)
to provide goods or services, by sale or lease, to or for
the commission; or
(B)
to perform a project as defined by Government Code, §2166.001.
(4)
Contractor--Independent contractor who has entered into
a contract directly with the commission. The term does not include:
(A)
the contractor's subcontractor, officer, employee, agent
or other person furnishing goods or services to a contractor;
(B)
an employee of the commission; or
(C)
a student at an institution of higher education.
(5)
Counterclaim--A demand by the commission based upon the
contractor's claim.
(6)
Day--A calendar day. If the last day of any period is not
a working day, the period is extended to include the next day that is a working
day.
(7)
Event--An act or omission or a series of acts or omissions
giving rise to a claim.
(8)
Executive Director--Executive Director of the Texas Workers'
Compensation Commission.
(9)
Goods--Supplies, materials or equipment.
(10)
Parties--The contractor and the commission that have entered
into a contract in connection with which a claim of breach of contract has
been filed under this subchapter.
(11)
Project--As defined in Government Code §2166.001,
a building construction project that is financed wholly or partly by a specific
appropriation, bond issue or federal money, including the construction of:
(A)
a building, structure, or appurtenant facility or utility,
including the acquisition and installation of original equipment and original
furnishing; and
(B)
an addition to, or alteration, modification, rehabilitation
or repair of an existing building, structure, or appurtenant facility or utility.
(12)
Services--The furnishing of skilled or unskilled labor
or consulting or professional work, or a combination thereof, excluding the
labor of an employee of the commission.
§103.303.Prerequisites to Suit.
The procedures contained in this subchapter are exclusive and required
prerequisites to suit under the Civil Practice & Remedies Code, Chapter
107, and the Government Code, Chapter 2260.
§103.304.Sovereign Immunity.
The provisions of this subchapter do not waive the commission's sovereign
immunity to suit or liability.
§103.305.Notice of Claim of Breach of Contract.
(a)
A contractor asserting a claim of breach of contract under
the Government Code, Chapter 2260, shall file notice of the claim as provided
by this section.
(b)
The notice of claim shall:
(1)
be in writing and signed by the contractor or the contractor's
authorized representative;
(2)
be delivered by hand, by certified mail return receipt
requested, or by other verifiable delivery service, to the person or employee
of the commission designated in the contract to receive a notice of claim
of breach of contract under the Government Code, Chapter 2260; if no person
is designated in the contract, the notice shall be delivered to the Executive
Director; and
(3)
state in detail:
(A)
the nature of the alleged breach of contract, including
the date of the event that the contractor asserts as the basis of the claim
and each contractual provision allegedly breached;
(B)
a description of damages that resulted from the alleged
breach, including the amount and method used to calculate those damages; and
(C)
the legal theory of recovery, i.e., breach of contract,
including the causal relationship between the alleged breach and the damages
claimed.
(c)
The notice of claim shall be delivered no later than 180
days after the date of the event that the contractor asserts as the basis
of the claim.
§103.306.Agency Counterclaim.
(a)
To assert a counterclaim under the Government Code, Chapter
2260, the commission shall file notice of the counterclaim as provided by
this section.
(b)
The notice of counterclaim shall:
(1)
be in writing;
(2)
be delivered by hand, certified mail return receipt requested
or other verifiable delivery service to the contractor or representative of
the contractor who signed the notice of claim of breach of contract; and
(3)
state in detail:
(A)
the nature of the counterclaim;
(B)
a description of damages or offsets sought, including the
amount and method used to calculate those damages or offsets; and
(C)
the legal theory supporting the counterclaim.
(c)
The notice of counterclaim shall be delivered to the contractor
no later than 90 days after the commission's receipt of the contractor's notice
of claim.
(d)
Nothing herein precludes the commission from initiating
a lawsuit for damages against the contractor in a court of competent jurisdiction.
§103.307.Duty to Negotiate.
The parties shall negotiate in accordance with the timetable set forth
in §103.308 of this subchapter (relating to Timetable) to attempt to
resolve all claims and counterclaims. No party is obligated to settle with
the other party as a result of the negotiation.
§103.308.Timetable.
(a)
Following receipt of a contractor's timely notice of claim,
the Executive Director or other designated representative shall review the
contractor's claim(s) and the commission's counterclaim(s), if any, and initiate
negotiations with the contractor to attempt to resolve the claim(s) and counterclaim(s).
(b)
Subject to subsection (c) of this section, the parties
shall begin negotiations within a reasonable period of time, not to exceed
60 days following the later of:
(1)
the date of termination of the contract;
(2)
the completion date, or substantial completion date in
the case of construction projects, in the original contract; or
(3)
the date the commission receives the contractor's notice
of claim.
(c)
The commission may delay negotiations until after the 180th
day after the date of the event giving rise to the claim of breach of contract
by:
(1)
delivering written notice to the contractor that the commencement
of negotiations will be delayed; and
(2)
delivering written notice to the contractor of the date
on which the commission is ready to begin negotiations.
(d)
The parties may conduct negotiations according to an agreed
schedule so long as they begin negotiations no later than the deadlines set
forth in subsections (b) or (c) of this section, whichever is applicable.
(e)
Subject to subsection (f) of this section, the parties
shall complete the negotiations that are required by this subchapter as a
prerequisite to a contractor's request for contested case hearing no later
than 270 days after the commission receives the contractor's notice of claim.
(f)
The parties may agree in writing to extend the time for
negotiations on or before the 270th day after the commission receives the
contractor's notice of claim. The agreement shall be signed by representatives
of the parties with authority to bind each respective party and shall provide
for the extension of the statutory negotiation period until a date certain.
The parties may enter into a series of written extension agreements that comply
with the requirements of this section.
(g)
The contractor may request a contested case hearing before
the State Office of Administrative Hearings (SOAH) pursuant to §103.313
of this subchapter (relating to Request for Contested Case Hearing) after
the 270th day after the commission receives the contractor's notice of claim,
or the expiration of any extension agreed to under subsection (f) of this
section.
(h)
The parties may agree to mediate the dispute at any time
before the 270th day after the commission receives the contractor's notice
of claim or before the expiration of any extension agreed to by the parties
pursuant to subsection (f) of this section. The mediation shall be governed
by §103.315 of this subchapter (relating to Mediation of Contract Disputes).
(i)
Nothing in this section is intended to prevent the parties
from agreeing to commence negotiations earlier than the deadlines established
in subsections (b) and (c) of this section, or from continuing or resuming
negotiations after the contractor requests a contested case hearing before
SOAH.
§103.309.Conduct of Negotiation.
(a)
Negotiation is a consensual bargaining process in which
the parties attempt to resolve a claim and counterclaim. A negotiation under
this subchapter may be conducted by any method, technique, or procedure authorized
under the contract or agreed upon by the parties.
(b)
The parties may conduct negotiations with the assistance
of one or more neutral third parties. If the parties choose to mediate their
dispute, the mediation shall be conducted in accordance with §103.315
of this subchapter (relating to Mediation of Contract Disputes). Parties may
choose an assisted negotiation process other than mediation.
(c)
To facilitate the meaningful evaluation and negotiation
of the claim(s) and any counterclaim(s), the parties may exchange relevant
documents that support their respective claims, defenses, counterclaims or
positions.
(d)
Material submitted pursuant to this section and claimed
to be confidential by the contractor shall be handled pursuant to the requirements
of the Texas Public Information Act.
§103.310.Settlement Approval Procedures.
The parties' settlement approval procedures shall be disclosed prior
to, or at the beginning of, negotiations. To the extent possible, the parties
shall select negotiators who are knowledgeable about the subject matter of
the dispute, who are in a position to reach agreement, and who can credibly
recommend approval of an agreement.
§103.311.Settlement Agreement.
(a)
A settlement agreement may resolve an entire claim or any
designated and severable portion of a claim.
(b)
To be enforceable, a settlement agreement must be in writing
and signed by representatives of the contractor and the commission who have
authority to bind each respective party.
(c)
A partial settlement does not waive a party's rights under
the Government Code Chapter 2260 as to the parts of the claims or counterclaims
that are not resolved.
§103.312.Costs of Negotiation.
Unless the parties agree otherwise, each party shall be responsible
for its own costs incurred in connection with a negotiation, including, without
limitation, the costs of attorney's fees, consultant's fees and expert's fees.
§103.313.Request for Contested Case Hearing.
(a)
If a claim for breach of contract is not resolved in its
entirety through negotiation, mediation or other assisted negotiation process
(alternative dispute resolution) in accordance with this subchapter on or
before the 270th day after the commission receives the notice of claim, or
after the expiration of any extension agreed to by the parties pursuant to §103.308
of this subchapter (relating to Timetable), the contractor may file a request
with the commission for a contested case hearing before SOAH.
(b)
A request for a contested case hearing shall state the
legal and factual basis for the claim, and shall be delivered to the person
or employee of the commission designated in the contract to receive notice
within a reasonable time after the 270th day or the expiration of any written
extension agreed to pursuant to §103.308 (Timetable) of this subchapter.
(c)
The commission shall forward the contractor's request for
contested case hearing to SOAH within a reasonable period of time, not to
exceed thirty days, after receipt of the request.
(d)
The parties may agree to submit the case to SOAH before
the 270th day after the notice of claim is received by the commission if they
have achieved a partial resolution of the claim or if an impasse has been
reached in the negotiations and proceeding to a contested case hearing would
serve the interests of justice.
§103.314.Mediation Timetable.
(a)
The contractor and the commission may agree to mediate
the dispute at any time before the 270th day after the commission receives
a notice of claim of breach of contract, or before the expiration of any extension
agreed to by the parties in writing.
(b)
A contractor and the commission may mediate the dispute
even after the case has been referred to SOAH for a contested case. SOAH may
also refer a contested case for mediation pursuant to its own rules and guidelines,
whether or not the parties have previously attempted mediation.
§103.315.Mediation of Contract Disputes.
(a)
The parties may agree to mediate a claim through an impartial
third party. The mediation is subject to the provisions of the Governmental
Dispute Resolution Act, Government Code, Chapter 2009. For purposes of this
subchapter, "mediation" is assigned the meaning set forth in the Civil Practice
and Remedies Code §154.023.
(b)
Mediation is a consensual process in which an impartial
third party, the mediator, facilitates communication between the parties to
promote reconciliation, settlement, or understanding among them. A mediator
may not impose his or her own judgment on the issues for that of the parties.
The mediator must be acceptable to both parties.
§103.316.Qualifications and Immunity of the Mediator.
The mediator shall possess the qualifications required under the Civil
Practice and Remedies Code §154.052, be subject to the standards and
duties prescribed by the Civil Practice and Remedies Code §154.053 and
have the qualified immunity prescribed by the Civil Practice and Remedies
Code §154.055, if applicable.
§103.317.Confidentiality of Mediation and Final Settlement Agreement.
(a)
A mediation conducted under this section is confidential
in accordance with Government Code §2009.054.
(b)
The confidentiality of a final settlement agreement to
which the commission is a signatory that is reached as a result of the mediation
is governed by Government Code Chapter 552.
§103.318.Costs of Mediation.
Unless the contractor and the commission agree otherwise, each party
shall be responsible for its own costs incurred in connection with the mediation,
including costs of document reproduction for documents requested by such party,
attorney's fees, and consultant or expert fees. The costs of the mediator
shall be divided equally between the parties.
§103.319.Settlement Approval Procedures.
The parties' settlement approval procedures shall be disclosed by the
parties prior to the mediation. To the extent possible, the parties shall
select representatives who are knowledgeable about the subject matter of the
dispute, who are in a position to reach agreement, and who can credibly recommend
approval of an agreement.
§103.320.Initial Settlement Agreement.
Any settlement agreement reached during the mediation shall be signed
by the representatives of the contractor and the commission, and shall describe
any procedures required to be followed by the parties in connection with final
approval of the agreement.
§103.321.Final Settlement Agreement.
(a)
A final settlement agreement reached during, or as a result
of mediation, that resolves an entire claim or any designated and severable
portion of a claim shall be in writing and signed by representatives of the
contractor and the commission who have authority to bind each respective party.
(b)
If the settlement agreement does not resolve all issues
raised by the claim and counterclaim, the agreement shall identify the issues
that are not resolved.
(c)
A partial settlement does not waive a contractor's rights
under the Government Code, Chapter 2260, as to the parts of the claim that
are not resolved.
§103.322.Referral to the State Office of Administrative Hearings.
If mediation does not resolve all issues raised by the claim, the contractor
may request that the claim be referred to SOAH by the commission. Nothing
in this subchapter prohibits the contractor and the commission from mediating
their dispute after the case has been referred for a contested case hearing,
subject to the rules of SOAH.
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 April 13, 2001.
TRD-200102119
Susan Cory
General Counsel
Texas Workers' Compensation Commission
Earliest possible date of adoption: May 27, 2001
For further information, please call: (512) 804-4286
28 TAC §103.400
The Texas Workers' Compensation Commission (the commission)
proposes new §103.400 concerning vehicle fleet management. The new rule
is proposed in accordance with the requirements of the Texas Government Code §2171.1045,
which requires each state agency to adopt rules relating to the assignment
and use of the agency's vehicles.
Texas Register
published text shows the
text of the proposed new rule and should be read to determine all proposed
language.
House Bill 3125, which was adopted by the 76th Texas Legislature, requires
each state agency to adopt rules consistent with the management plan adopted
by the Office of Vehicle Fleet Management of the General Services Commission
relating to the assignment and use of the agency's vehicles.
Norma Mitchell, Staff Services Officer, has determined that for the first
five-year period the proposed rule is in effect there will be no fiscal implications
for state or local governments as a result of enforcing or administering the
rule because this proposed new rule states a policy that is already being
followed.
Ms. Mitchell has also determined that for each year of the first five years
the rule as proposed is in effect the public benefits anticipated as a result
of enforcing the rule will be compliance with the provisions of the Texas
Government Code.
There will be no anticipated economic costs to persons who are required
to comply with the rule as proposed. This rule applies only to the management
of vehicles owned by the commission.
There will be no costs of compliance for small businesses, micro businesses,
or large businesses. 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 or micro businesses as compared to large businesses.
Comments on the proposal or requests for public hearing must be received
by 5:00 p.m., May 29, 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 commissioner's review of those comments, or based upon the commissioner's
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.
This proposed new rule affects the following statutes: the Texas Labor
Code, §402.061 which authorizes the commission to adopt rules necessary
to administer the Act, and the Texas Government Code, §2171.1045, which
requires each state agency to adopt rules consistent with the management plan
adopted by the Office of Vehicle Fleet Management of the General Services
Commission relating to the assignment and use of the agency's vehicles.
This new rule is proposed under the Texas Labor Code, §402.061,
which authorizes the commission to adopt rules necessary to administer the
Act, and the Texas Government Code, §2171.1045, which requires each state
agency to adopt rules consistent with the management plan adopted by the Office
of Vehicle Fleet Management of the General Services Commission relating to
the assignment and use of the agency's vehicles.
§103.400. Fleet Vehicle Management Program.
(a)
Each commission vehicle, with the exception of a vehicle
assigned to a field employee, shall be assigned to the commission motor pool
and shall be available for check-out.
(b)
Commission vehicles may be assigned on a regular or everyday
basis to an individual administrative or executive employee only if the commission
makes a written finding that the assignment is critical to the needs and mission
of the commission.
(c)
Any policy or procedure promulgated by the commission relating
to the assignment and use of commission vehicles shall be consistent with
the management plan adopted by the General Services Commission.
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 April 13, 2001.
TRD-200102120
Susan Cory
General Counsel
Texas Workers' Compensation Commission
Earliest possible date of adoption: May 27, 2001
For further information, please call: (512) 804-4286
28 TAC §126.10
The Texas Workers' Compensation Commission (the commission)
proposes an amendment to §126.10, concerning the commission approved
list of designated doctors. The amendment is proposed to make §126.10
consistent with the language in §130.1 concerning Certification of Maximum
Medical Improvement and Evaluation of Permanent Impairment.
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.
House Bill 2510 passed by the 76th Texas Legislature amended Texas Labor
Code §408.124 to allow the commission by rule to adopt the fourth edition
of the
Guides to the Evaluation of Permanent Impairment
, published by the American Medical Association (
AMA Guides
), for determining the existence and degree of an employee's
impairment.
Section 130.1 was amended to require the use of the
AMA Guides
, fourth edition to evaluate impairment for certifying
examinations conducted on or after October 15, 2001, while maintaining the
requirement for the use of the
AMA Guides
,
third edition, second printing, 1989, for certifying examination dates before
October 15, 2001 and certain others as set out in §130.1(c)(2)(B)(ii).
The amendment of §130.1 necessitates the amendment of §126.10
to delete references to a particular edition of the
AMA Guides
. Instead, the rule will refer to §130.1.
Because §130.1 contains the instructions regarding which
AMA Guides
should be used for determination of an employee's impairment,
the proposed amendment to §126.10(a)(2) references §130.01. Eliminating
the reference to a particular edition of the
AMA
Guides
in §126.10(a)(2) and referencing the requirement of §130.1,
allows the commission to adopt amendments to §130.1 if necessary, without
requiring additional amendments to §126.10.
Tom Hardy, Director of the Division of Medical Review, has determined that
for the first five-year period the proposed rule is in effect there will be
no fiscal implications for state or local governments as a result of enforcing
or administering the rule.
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 rule as proposed.
Mr. Hardy has also determined that for each year of the first five years
the rule as proposed is in effect the public benefits anticipated as a result
of enforcing the rule will be consistency in the rules under which all Texas
Workers' Compensation system participants function.
There will be no anticipated economic costs to persons who are required
to comply with the rule as proposed because the amendment does not impose
any new requirements, rather, it makes this rule consistent with other rules.
There will be no costs of compliance for and no adverse economic impact
on small businesses or micro-businesses. There will be no differences in the
cost of compliance for small businesses and micro businesses as compared to
large businesses.
Comments on the proposal and requests for public hearing, must be received
by 5:00 p.m., May 29, 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.
Comments should address only the proposed amendments to the rule and 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.
The amendment is proposed under the Texas Labor Code, §401.011(17),
which provides a definition for "doctor"; Texas Labor Code, §401.011(30),
which provides a definition for "maximum medical improvement"; Texas Labor
Code, §401.024, as amended by the 76th Texas Legislature, which provides
the Commission the authority to require use of facsimile or other electronic
means to transmit information in the system; Texas Labor Code, §402.042,
which authorizes the Executive Director to enter orders as authorized by the
statute as well as to prescribe the form and manner and procedure for transmission
of information to the Commission; Texas Labor Code, §402.061, which authorizes
the Commission to adopt rules necessary to administer the Act; Texas Labor
Code, §406.010, which authorizes the Commission to adopt rules regarding
claims service; Texas Labor Code, §408.004, which addresses required
medical examinations; Texas Labor Code, §408.025, which requires the
Commission to specify by rule what reports a health care provider is required
to file; Texas Labor Code, §408.102, which provides that temporary income
benefits continue until the injured employee reaches maximum medical improvement;
Texas Labor Code, §408.122, which establishes eligibility for impairment
income benefits and provides for the use of designated doctors when a dispute
exists regarding the certification of MMI; Texas Labor Code, §408.123,
which requires a doctor certifying MMI 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;
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; Texas Labor Code, §408.125, which addresses use of a designated
doctor to resolve impairment rating disputes, Texas Labor Code §413.002
and Chapter 414, which give the Commission authority to monitor an evaluate
health care providers (including designated doctors), insurance carriers,
and workers' compensation claimants to ensure compliance with the rules adopted
by the Commission and to issue administrative penalties.
No other code, statute, or article is affected by this proposed amendment.
§126.10.Commission Approved List of Designated Doctors.
(a)
The following words and terms, when used in this rule,
shall have the following meanings, unless the context clearly indicates otherwise.
(1)
Designated Doctor List--A list of doctors approved by the
commission and afforded the privilege to perform medical evaluations and make
recommendations to resolve disputes regarding certification of maximum medical
improvement and/or assignment of impairment rating.
(2)
AMA Guides--Guides to the Evaluation of Permanent Impairment,
[
(3)
Division--The Medical Review Division of the Texas Workers'
Compensation Commission.
(4)
Disqualifying Association--Any association which may reasonably
be perceived as having potential to influence the conduct or decision of the
designated doctor.
(A)
A disqualifying association between a designated doctor
and a party may include:
(i)
receipt of income, compensation, or payment of any kind
not related to medical services provided by the doctor;
(ii)
shared investment or ownership interest;
(iii)
contracts or agreements which provide incentives, such
as, referral fees, payments based on volume or value, and waiver of beneficiary
coinsurance and deductible amounts;
(iv)
contracts or agreements for space or equipment rentals,
personnel services, management contracts, referral services, or warranties,
or any other services related to the management of the doctor's practice;
or
(v)
personal or family relationships.
(B)
Receipt of normal payments rendered for services provided
pursuant to managed care/preferred provider contracts or any payment in accordance
with the Texas Workers' Compensation Act and rules, is not considered a disqualifying
association.
(5)
Self-Refer--Treatment by the designated doctor or referral
for treatment to another health care provider with which the designated doctor
has a disqualifying association.
(6)
Party--Any of the following entities including any of their
agents or representatives: the insurance carrier, health care provider (including
designated doctor and treating doctor), injured employee, or employer.
(b)
Doctors included in the Designated Doctor List shall:
(1)
be currently active on the list of approved doctors as
set forth in the Texas Labor Code, §408.023 (
relating to
[
(2)
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 as required in subparagraph
(A) of this paragraph; and
(C)
have passed the commission-approved written examination
for impairment rating training within the timeframe as specified by the division;
(3)
schedule appointments to examine employees for a date as
set forth in §130.6 of this title (relating to Designated Doctor: General
Provisions);
(4)
reschedule the examination for a date as set forth in §130.6
of this title (relating to Designated Doctor: General Provisions) when notified
by the injured employee of a scheduling conflict;
(5)
within 48 hours of receiving notice of being selected as
a designated doctor, notify the commission field office of any disqualifying
association;
(6)
comply with all the provisions for designated doctors as
specified in this rule and §130.6 of this title (relating to Designated
Doctor: General Provisions);
(7)
have maintained for the past three years and continue to
maintain routine office hours for the treatment of patients in an active practice;
and
(8)
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.
(c)
Doctors may request to be on the Designated Doctor List
by filing with the division form TWCC-72, Designated Doctor List Application,
in the form and manner prescribed by the commission. The division shall notify
the doctor of the approval or denial of the application.
(d)
The division may, in addition to the documentation submitted
with the doctor's request, consider the following in determining whether to
add a doctor to the Designated Doctor List:
(1)
any impairment ratings previously assessed, compared to
like injuries;
(2)
accuracy of previously assessed impairment ratings and
certification of maximum medical improvement;
(3)
non-certification of maximum medical improvement followed
by the designated doctor self-referring for treatment;
(4)
previous billing or treatment practices;
(5)
substantiated complaints against the doctor;
(6)
any violation of the Texas Workers' Compensation Act or
commission rules; and
(7)
any doctor's licensing body or regulatory agency disciplinary
action.
(e)
When deemed necessary because the injured worker is temporarily
located or 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.
(f)
Doctors may be suspended or removed from the Designated
Doctor List for noncompliance with requirements of this section. The division
may also consider and take action to suspend or remove a doctor from the Designated
Doctor List based on, but not limited to, 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)
two untimely or incomplete submissions within a 90 day
period of medical evaluation reports in accordance with §130.1 of this
title (relating to Reports of Medical Evaluation, Maximum Medical Improvement
and Permanent Impairment) and §130.6 of this title (relating to Designated
Doctor: General Provisions);
(3)
failure to amend patterns of practice after being advised
by the commission of performance requiring correction;
(4)
misrepresentation or omission of information in the designated
doctor application process;
(5)
misrepresentation or omission of pertinent facts in medical
evaluation and narrative reports;
(6)
unnecessary referrals for the assignment of impairment
rating or determination of maximum medical improvement (MMI);
(7)
submission of an inaccurate or inappropriate impairment
rating due to insufficient examination and analysis of a referred/supervised
health care provider's testing results which must be in accordance with the
AMA Guides;
(8)
failure to timely respond to request for clarification
from the commission regarding an examination;
(9)
assignments of maximum medical improvement and/or impairment
ratings overturned in a contested case hearing, appeals panel decision and/or
court decision;
(10)
any of the factors listed in subsection (d) of this section;
or
(11)
failure to successfully complete training requirements
as specified in subsection (b)(2) of this section.
(g)
The division shall notify a doctor in writing by certified
mail, return receipt requested, or by personal delivery with receipt acknowledged,
of temporary suspension from the Designated Doctor List pending division action.
The notification shall include the division's proposed action, the reasons
for the proposed action, details regarding the doctor's opportunity to rebut
those reasons and notice if pre-scheduled appointments are cancelled or should
be performed.
(1)
The temporary suspension will be effective from the date
of receipt of the notice by the doctor.
(2)
A doctor may submit a written rebuttal specifically addressing
each reason for the proposed action. The rebuttal must be received by the
division within 14 days after the doctor's receipt of the temporary suspension
notice and must be sent by certified mail, return receipt requested, or by
personal delivery with receipt acknowledged. Failure to respond within the
timeframe will result in the division's proposed action becoming effective
without further notification.
(3)
The division shall review the rebuttal and determine the
appropriate action to take including: reinstatement to; suspension from; or
removal from the Designated Doctor List. The division shall notify a doctor
in writing of the action taken.
(4)
A doctor who has been suspended or removed from the Designated
Doctor List, may submit a written request to the division requesting reinstatement
to the Designated Doctor List, and shall include a completed Designated Doctor
List Application (TWCC-72), and information regarding corrective measures
undertaken to resolve the suspension or removal issue. The division will evaluate
the request and make a determination of the doctor's reinstatement to the
Designated Doctor List and notify the doctor of approval or denial of the
reinstatement request.
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 April 13, 2001.
TRD-200102121
Susan Cory
General Counsel
Texas Workers' Compensation Commission
Earliest possible date of adoption: May 27, 2001
For further information, please call: (512) 804-4286
Subchapter A. IMPAIRMENT INCOME BENEFITS
Subchapter C. RESOLUTION OF CONTRACT CLAIMS
Subchapter D. FACILITIES AND PROPERTY MANAGEMENT
Chapter 126.
GENERAL PROVISIONS APPLICABLE TO ALL BENEFITS
third edition, second printing, dated February 1989,
] published
by the American Medical Association,
as required in §130.1
.
concerning
] List of Approved Doctors);
Chapter 130.
IMPAIRMENT AND SUPPLEMENTAL INCOME BENEFITS