28 TAC §126.8
The Texas Workers' Compensation Commission (the commission)
adopts amendments to §126.8 concerning the Commission-Approved Doctor
List without changes to the proposed text published in the (March 9, 2001)
issue of the
Texas Register
(26 TexReg 2002).
These amendments are adopted to correct and update references to rules and
laws that have been recodified.
As required by the Government Code §2001.033(1), the commission's
reasoned justification for this rule is set out in this order which includes
the preamble, which in turn includes the rule. This preamble contains a summary
of the factual basis of the rule, a summary of comments received from interested
parties, names of those groups and associations who commented and whether
they were for or against adoption of the rule, and the reasons why the commission
disagrees with some of the comments and proposals.
In 1993, the rule was proposed to establish criteria, in addition to those
criteria specified in Texas Civil Statutes, Article (8308-4.63) for the addition
of doctors and for the removal of doctors from the list. This section was
required by Texas Civil Statutes, Article 8308-4.63 (now the Texas Labor Code §408.023).
The duty to conduct hearings under the Administrative Procedure Act was first
located in the commission's Division of Hearings. In 1995, the Texas Legislature
moved this duty to the State Office Administrative Hearings effective January
1, 1996. The commission adopted the rules in Chapters 148 and 149 to implement
this change. For this reason references to the Chapter 145 rules should be
replaced with references to the rules in Chapter 148, relating to Hearings
Conducted by the State Office of Administrative Hearings.
Also in 1993, the Texas Legislature incorporated the Texas Workers' Compensation
Act into the Texas Labor Code, Title 5, Subtitle A. Reference to Articles
8308-4.63 corresponds now to §408.023 of the Texas Labor Code (relating
to Contested Cases: General Rights and Procedures, Opportunity for Hearing
and Participation); therefore, these references should be revised accordingly.
The Texas Legislature incorporated the Administrative Procedure and Texas
Register Act into the Texas Government Code in 1993 as well. Therefore, the
reference to Article 6252-13a (the Administrative Procedure and Texas Register
Act) should be changed to §2001.051 of the Texas Government Code (and
the reference to Article 8308-2.09 (f), relating to the powers and duties
of the Commission corresponds to §402.072 of the Texas Labor Code).
Comments opposing certain portions of §126.8 and a comment seeking
clarification were received from the following groups, associations and individuals:
William M. Leff, D.C., Eric Scheffey, M. D., East Harris County Orthopedic
Associates, P. A., and Bill Elliott, Compliance Manager of ARCMI. Summaries
of the comments and commission responses are as follows:
COMMENT:
Commenter felt that the proposed
rule change was hard to understand and suggested that some explanation, not
necessarily a part of the rule, should accompany the proposal.
RESPONSE:
The commission disagrees that
the proposed changes are unclear. The preamble to the proposed rule explains
that the proposed amendments correct and update references to rules and laws
that have been changed since the rule was adopted. Each rule and law that
was changed is identified.
COMMENT:
Commenters disagreed with the
reasons in subsection (d)(3), (5), and (6) of the rule for deleting doctors
from the list.
RESPONSE:
These comments are outside of
the scope of the rule proposal. No changes to subsection (d) were proposed
and no changes to that subsection are being considered at this time.
COMMENT:
Commenter expressed concern about
subsection (b) which states that payment cannot be withheld from doctors in
other jurisdictions because they are not on the approved doctor list. Commenter
asked if this provision applied to doctors in Mexico with whom a substantial
number of claimants seek treatment to avoid providing accurate and current
information to the workers compensation carrier.
RESPONSE:
This comment is outside the scope
of the rule proposal. No changes to subsection (b) were proposed and no changes
to that subsection are being considered at this time.
The amended rule is adopted under the Texas Labor Code, §402.061,
which authorizes the commission to adopt rules necessary to administer the
Act, the Texas Labor Code §402.073, relating to the Cooperation with
the State Office of Administrative Hearings, the Texas Labor Code §408.023,
relating to the List of Approved Doctors, and Chapter 2001 of the Texas Government
Code, relating to hearings before the State Office of Administrative Hearings.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 18, 2001.
TRD-200102808
Susan Cory
General Counsel
Texas Workers' Compensation Commission
Effective date: June 7, 2001
Proposal publication date: March 9, 2001
For further information, please call: (512) 804-4287