Subchapter E. COMPELLING PRODUCTION OF DOCUMENTS

Subchapter C. MEDICAL FEE GUIDELINES

The Texas Workers' Compensation Commission proposes new §§148.1 - 148.23 concerning procedures governing certain hearings, conducted by the State Office of Administrative Hearings, to adjudicate disputes arising under the Texas Workers' Compensation Act (the Act). The commission also proposes simultaneous repeal of current §§148.1 - 148.28. These procedures are not applicable to benefit disputes, governed by Chapters 140, 142, and 143 of this title (related to Dispute Resolution-General Provisions; Benefit Contested Case Hearing; and Review by the Appeals Panel, respectively). These new procedural rules are proposed in order to reflect changes in other commission rules and practices, to coordinate commission rules with changes to the procedural rules of the State Office of Administrative Hearings, to clarify the requirements for the commission's processing of requests for subpoenas and for the issuance of commissions requiring depositions, and to provide related policies of the commission as, for example, the party who has the burden of proof in the contested case hearing.

Proposed new §148.1 incorporates the existing definitions of terms in current §148.2(1)-(4) and (6)-(9) with revisions. In addition, newly defined terms or acronyms are included in subsections (2), (6), (7), (9) and (13). In subsection (1), the definition of "Act" eliminates surplus verbiage "as specified in the Act." Subsection (2) adds a new definition for "Administrative Law Judge or ALJ" to be consistent with terminology used by the State Office of Administrative Hearings (SOAH) in its procedural rules in Chapter 155, Title 1 (relating to Rules of Procedure). Proposed new subsection (5) defines "Commission Representative" to reflect the practice of the commission to designate a commission representative only for some contested cases. The term "hearing officer" in existing subsection (5) has not been included because SOAH utilizes the terms "Administrative Law Judge" or "ALJ" instead. New subsection (6) defines "contested case" utilizing the basic definition in the Texas Government Code, §2001.003(1) and also includes references to sections of the Texas Labor Code that address contested cases handled by SOAH involving the Texas Workers' Compensation Act (Act). New subsection (7) defines the acronym "IRO" because Independent Review Organizations, established in accordance with Insurance Code article 21.58C, perform certain reviews of health care under the Act and their decisions may be reviewed de novo in SOAH contested cases. Subsection (8) revises the definition of "Party" to specifically include a state agency named or admitted as a party because the commission and certain other state agencies (for example, the State Office of Risk Management) can be parties to SOAH contested cases. New subsection (9) defines a "person" utilizing the basic definition in the Texas Government Code, §2001.003(5). New subsection (13) defines "TWCC Chief Clerk" because the TWCC Chief Clerk is the person designated by the commission to receive important forms, notifications, and other documents from SOAH and persons and parties to SOAH contested cases.

Proposed new §148.2 includes the "Scope and Applicability" provisions currently contained in §148.1 with clarifying changes.

New subsection (a) adds the term "contested case," as defined in proposed new §148.1 (relating to Definitions), to specify the type of hearings and to add the words "before the SOAH" to limit the applicability of these rules to contested cases where the Act provides for SOAH hearings. Other changes clarify and update the subsection.

New subsection (b) summarizes the cases that the commission's Chapter 148 rules will govern and specifies certain, related policies of the commission applicable to such cases (for example, the burden of proof policies contained in proposed new §148.14 (relating to Burden of Proof)).

Proposed new subsection (c) incorporates the provisions of existing §148.1(b) except that the reference to Texas Labor Code, §408.023 is replaced with a reference to Texas Labor Code, §408.0231 because the latter section is the section that includes a right to a hearing. Also, the phrase "and in other cases not subject to §402.073(b) is added to clarify that the TWCC Commissioners render the final decision in cases not subject to Act, §402.073(b).

Proposed new §148.3: (1) clarifies how a person or state agency, including the staff of the commission, may send the commission a request for a contested case hearing before SOAH; (2) specifies how the "deemed" date of receipt for a request will be determined by the commission; (3) specifies how the commission will handle requests for contested case hearings after initial decisions are made in certain medical dispute cases; (4) specifies that late filings will be dismissed; and (5) specifies how requests for correction of clerical errors will be handled when made with a request for a hearing. Existing §148.3(a) has been deleted and replaced with new proposed subsection (a) to clarify the date, under the various provisions of the Act, when the 20-day rule limitations period for filing a request for a hearing begins.

New subsection (b) establishes the date when a request for a hearing, other than a request made pursuant to Texas Labor Code §413.031 for certain medical disputes, will be deemed as filed with TWCC.

New subsection (c) specifies requirements for a request for a SOAH contested case hearing after an initial medical dispute decision has been rendered either by the commission's Medical Review division for a medical fee dispute or an IRO for an applicable medical necessity dispute. This subsection does not apply to requests for SOAH hearings after an IRO decision with respect to prospective medical necessity of spinal surgery (where such requests must be filed in accordance with §133.308(v) of this title (relating to Medical Dispute Resolution by Independent Review Organization). In addition, this rule does not apply to case reviews completed pursuant to the commission's alternate medical dispute process in accordance with §133.309 of this title (relating to Alternate Medical Necessity Dispute Resolution by Case Review Doctor) because under that rule the decision of the case review doctor constitutes the final administrative decision.

New subsection (d) clarifies that a request for a SOAH hearing will be dismissed if filed later than twenty days after receipt of the original medical dispute decision.

New subsection (e) specifies how a request for a SOAH hearing will be handled by the commission if that request also contains a request for correction of a clerical error in the original decision.

New subsection (f) addresses correction of clerical errors discovered by the commission.

New subsection (g) specifies that the commission will send the request for hearing to SOAH within 20 working days of receipt unless a decision is withdrawn in accordance with proposed new §148.8 of this title (relating to Withdrawal of Hearing Request) or unless the parties have been notified of the commission's intent to revise the order or decision pursuant to subsections (e) or (f). While decisions will be forwarded as soon as practical, the maximum period of time should allow the parties time to informally resolve disputed matters and to then withdraw the request for hearing or should allow the commission adequate time to initiate a clerical correction process based upon information provided to it or based upon its review of the prior decision.

New subsections (h) and (i) contain the provisions of existing §148.3(c) and (d) but the term "adverse action" has been deleted as unnecessary.

Proposed new §148.4 provides that the commission may revise an order or decision of the Medical Review Division to correct a clerical error either at the request of one or more parties to such an order or decision or by decision of the commission's Executive Director or his designee. This is a companion section to proposed new §148.3 and, in contrast, only addresses correction of a clerical error not associated with a request for a hearing. The procedures are similar to the procedures in proposed new §148.3 except that the commission's actions will be taken not later than 30 days after a request for clerical correction is received from a party and the commission's action in any particular request, shall either be to: (1) issue and deliver to the parties a corrected order or decision, (2) advise the parties in writing that the order or decision was correct as originally entered, or (3) advise the parties in writing that the order or decision cannot be corrected pursuant to this section (for example, if the requested clerical correction is not determined to be a clerical error issue). If a clerical correction is made by decision of the commission's executive director or his designee, the correction may be made either without notice to the parties (for example, concerning an obvious error or errors requiring immediate correction) or by a procedure that includes notice of the intended correction, a period for receiving response, and action of the commission's executive director or designee under the three options summarized previously.

Proposed new §148.5 includes provisions of existing §148.4 except that existing subsections (a) and (d) have been deleted because related commission policies are addressed elsewhere (in proposed new Chapter 149 and in the SOAH procedural rules).

New subsection (a) contains provisions of existing §148.4(b) except for: (1) revisions in accordance with the definitions in proposed new §148.1 of this title (relating to Definitions); (2) additional language "and upon receipt of the docket number, location and setting date from SOAH" to recognize information that must be received from SOAH before a notice of hearing can be sent in accordance with Texas Government Code, §2001.052; (3) additional language "a notice regarding failure to appear and default judgments" to emphasize possible actions in a case pursuant to SOAH's procedure rule at §155.55 of title 1 (relating to Failure to Attend Hearing and Default); and (4) additional language "...and any rules involved, nature of the hearing..." to clarify that rules will be specified only when any rules are involved and that the nature of the hearing will be specified in compliance with Texas Government Code, §2001.052(a)(1).

New subsection (b) contains provisions of existing §148.4(c) except to use terms defined in proposed new §148.1 of this title (relating to Definitions) and to clarify some of the notice information requirements may be provided by the commission's representative and, if so, would not be provided by the TWCC Chief Clerk.

Proposed new §148.6 includes the addition of "Texas" to the "Austin, Travis County" location for SOAH contested case hearings and deletes the provisions concerning appearing at the hearing or participating by telephone conference call because those procedures are specified in SOAH's rule in §155.45 of title 1 (relating to Participation by Telephone).

Proposed new §148.7 does not include the language contained in current §148.7 because the SOAH rules of procedure in Chapter 155 of Title 1 (relating to Rules of Procedure) preempt TWCC procedural rules and because the SOAH rules address appearance and representation generally. However, because the Act contains specific requirements on representation of injured employees and insurance carriers and because the commission has interpreted those requirements in its rules in Chapter 150 of this title (relating to Representation Of Parties Before The Agency Qualifications of Representatives), new §148.7 addresses the additional qualification requirements for representatives of injured employees and insurance carriers.

Proposed new §148.8 clarifies that a request for withdrawal of hearing request should be sent to the TWCC Chief Clerk if the written request for withdrawal is submitted before a case is received by SOAH or after a proposal for decision is received from SOAH. Otherwise, the request should be submitted to SOAH in accordance with its procedure rules in Title 1, Chapter 155 (relating to Rules of Procedures). The last sentence of existing subsection (a) is deleted because a SOAH ALJ will make a legal determination of whether any subsequent requests for hearing constitute or include the same subject matters as a previous request for hearing and, if so, whether and how the subsequent hearing should proceed. Subsection (b), addresses the commission's withdrawal of a medical dispute decision and should result in reduced expenses for all parties. The decision-maker will be able to withdraw or amend the small percentage of decisions containing an obvious error, omission, or procedural defect when identified in requests for hearing, without necessitating formal hearings.

Proposed new §148.9 is the same as current §148.9 except for substitution of the acronym "ALJ" for "Hearing Officer" in accordance with the revised definitions in §148.1 of this title (relating to Definitions).

Existing §148.10 (relating to Filing Instruments; Furnishing Copies) has been deleted because such procedures are addressed in SOAH's rules in Chapter 155 of Title 1 (relating to Rules of Procedure). Proposed new §148.10 provides that a request for issuance of a subpoena shall be directed to the TWCC Chief Clerk in the commission's central office. SOAH has noted in the adoption of its rule §155.31(e) in Title 1 (relating to Discovery) that "... requests for issuance of subpoenas or commissions (requiring depositions) shall be directed to the referring agency. The absence of any reference to subpoenas for witnesses at hearing means the referring agency's subpoena rules apply." (27 TexReg 3336). A request for a subpoena shall include the following six requirements: (1) the actual subpoena, attached to the request, for TWCC to execute, (2) the name and address of the sheriff or constable to whom the subpoena should be addressed on the actual subpoena, (3) a good faith, itemized estimate of the anticipated, reimbursable costs that the requestor will pay to the person being subpoenaed calculated in accordance with §2001.089 of the Texas Government Code and a deposit for the same amount in the form of a negotiable instrument satisfactory to the commission, (4) as placed on the actual subpoena: the name, address and title, if any, of the witness, the date, time, and place where the witness is to appear and give testimony, the docket number of the SOAH proceeding, and a statement showing date of execution and return of the subpoena to the TWCC Chief Clerk (to be completed by the constable or sheriff upon service of the subpoena to the witness), (5) if the subpoena is for the production of books, records, writing, or other tangible items, a specific, detailed description of the items sought to be produced along with the information in number (4) above, and (6) a description of the reasonable steps to avoid imposing undue burden or expense on the person served.

The information specified is necessary for the commission to issue the subpoena under Texas Government Code §2001.089 and to provide the witness with specific instructions on where to appear and, if applicable, what to bring. The deposit is required under the authority of Texas Government Code §§2001.089 and 2001.103. However, the party or agency requesting the subpoena is responsible for paying the applicable witness expenses under Texas Government Code §2001.103(b). The requirement for information showing "good cause" for the issuance of a subpoena is found in Texas Government Code §2001.089. One of the elements of "good cause" is a showing that the information sought from the witness is not available to the requestor from other sources. Lueg v. Tewell , 572 S.W.2d 97, 102 (Tex. App. - Corpus Christi 1978, no writ) citing Ex Parte Shepperd , 513 S.W.2d 813, 816 (Tex. 1974). Such case law interpreted "good cause" when that showing was required under the Texas Rules of Civil Procedure. While the "good cause" requirement subsequently was deleted in the Texas Rules of Civil Procedure, those Rules do require a party requesting a subpoena to take reasonable steps to avoid imposing undue burden or expense on the person served. The requestor, as part of the information showing good cause for the issuance of the subpoena, must provide a description of the reasonable steps to avoid imposing undue burden or expense on the person to be served with the subpoena. Finally, if a person fails to comply with a subpoena, enforcement actions provided in the rule are based upon authority provided in Texas Government Code, §2001.201 or Texas Labor Code §402.042(b)(3) and (9).

The commission solicits comments on possible alternatives that would satisfy the APA requirement of a deposit to the commission for the amount of anticipated costs to be incurred by the witness and the APA requirement upon the requesting party to pay the witness for those costs.

Existing §148.11 (relating to APA Prehearing Conference) has been deleted because its procedures have been preempted by SOAH in accordance with §2003.050(b), Government Code and SOAH's adoption of its procedural rules in Chapter 155 of Title 1 (relating to Rules of Procedure). Proposed new §148.11 provides that a request for the issuance of a commission requiring deposition shall be directed to the TWCC Chief Clerk in the commission's central office. SOAH has noted in the adoption of its rule §155.31(e) in Title 1 (relating to Discovery) that "...requests for issuance of subpoenas or commissions (requiring depositions) shall be directed to the referring agency." (27 TexReg 3336). The proposed rule requires that a request for issuance of a commission requiring deposition include: (1) the actual commission requiring deposition, attached to the request, for the TWCC Chief Clerk to execute; (2) the name and address of the applicable officer to take the deposition; the date, time, and place where either the witness is to appear and give testimony or where the written responses are to be sent; a detailed description of any items the witness will be required to produce; and a statement showing date of execution and return of the commission to the TWCC Chief Clerk (to be completed by the officer designated to take the deposition upon service of the commission requiring deposition to that officer); (3) a good faith, itemized estimate of the anticipated, reimbursable costs that the requestor will pay to the person being deposed calculated in accordance with §2001.094 and a deposit for the same amount in the form of a negotiable instrument satisfactory to the commission; and (4) coordination by the requestor with the other party or parties and with the witness to determine a mutually agreeable location and time for the attendance of the witness and a statement whether such coordination has been made and whether the proposed location and time is by mutual agreement with the parties and witness.

The information specified is necessary for the TWCC to issue the commission requiring deposition, to provide the witness with specific instructions on where to appear or send the written responses and, if applicable, what to bring, and to reduce the expense to the commission and to other parties of having to reissue one or more commissions requiring deposition because the requestor had not attempted to coordinate an agreed time, date, and, if applicable, place with the other party or parties and with the witness. The deposit is required under the authority of Texas Government Code §§2001.094 and 2001.103. However, a party or agency requesting the commission requiring deposition is responsible for paying the applicable witness expenses under Texas Government Code §2001.103(b).

Proposed subsection (b) provides that the issuance of a commission for an oral deposition is not required if the witness is a party or is retained by, employed by, or otherwise subject to the control of a party. This provision allows the parties to agree to such depositions in accordance with SOAH's rule at §155.31(n) of Title 1 (relating to Discovery).

Proposed subsection (c) prohibits the taking of a deposition of a member of an agency, board or commission after a hearing date for the contested case has been set in accordance with Texas Government Code §2001.095. Proposed subsection (e) refers to special provisions of the APA concerning depositions, for example, Texas Government Code §§2001.096, 2001.097, 2001.098, 2001.099, 2001.100, 2001.101, and 2001.102. Finally, if a person fails to comply with a deposition, enforcement actions provided in the rule are based upon authority provided in Texas Government Code §2001.201 or Texas Labor Code §402.042(b)(9).

The commission solicits comments on possible alternatives that would satisfy the APA requirement of a deposit to the commission for the amount of anticipated costs to be incurred by the witness and the APA requirement upon the requesting party to pay the witness for those costs.

Existing §148.12 (relating to Request for Alternative Dispute Resolution) has been deleted because such procedures are addressed in SOAH's rules in Title 1, §155.33(d) (relating to Orders) and §155.37 (relating to Settlement Conferences). Proposed new §148.12 contains the provisions in existing §148.15 (relating to Ex Parte Communications).

Existing §148.13 (relating to Discovery and Production of Documents and Tangible Things for Inspection Copying or Photographing) has been deleted because such procedures are addressed in SOAH's rules in Title 1, §155.31 (relating to Discovery). Proposed new §148.13 contains provisions in existing §148.20 (relating to Recording the Hearing) with revisions. Subsection (a) has been revised to delete provisions now more fully addressed in SOAH's rule in §155.43 of Title 1 (relating to Making a Record of Contested Case) and clarify that the petitioner in a contested case is responsible for all costs associated with making a record of the hearing, including the costs of the court reporter at the hearing and the costs of the preparation of a verbatim record if one is required. Where more than one party is seeking affirmative relief, such costs will be assessed equally. The parties can agree to their own arrangements for a court reporter or allocation of associated costs among the parties. The commission finds the petitioner as the proper party to pay such costs since the petitioner has requested the hearing, e.g. disputing a previous decision in a medical dispute or an action taken by the commission after preliminary notices and opportunity for input have been received and considered.

Subsection (b) provides that a party, electing to use a means of making a record that is in addition to the means specified in SOAH's rules (currently §155.43 of Title 1 relating to Making a Record of Contested Case), is responsible for all associated costs of making that record and, if a verbatim transcript is made, shall provide SOAH and the commission with a copy of the audiotape or videotape free of charge. If a transcript is made, the party shall provide the commission with the original of the transcript free of charge. The responsibility for such costs has been made in accordance with Texas Government Code §2001.059(b) and Texas Labor Code §402.064. The party requesting the additional services should pay for those services. In addition, the commission often has a need to review the record of the hearing, for example, the videotape or other type of transcript. In an appropriate case, the commission staff may confirm, in writing, that the copy is either not needed or that the delivery of the copy can be delayed for a specified period of time or until a specified event occurs.

Existing §148.14 (relating to Subpoenas; Depositions) has been deleted because both discovery devices are now covered in proposed new §§148.10 (relating to Hearings Subpoenas to Compel Attendance and Subpoenas Duces Tecum) and 148.11 (relating to Commissions to Compel Attendance for Deposition). Proposed new §148.14 specifies the particular sections of the Act where the commission will have the burden of proof in hearings. These include hearings on sanctions under §402.072, sanctions on a doctor or an insurance carrier under §408.0231, identification of a hazardous employer based, at least in part, upon a fatality under §411.0415, findings by the commission relating to hazardous employers under §411.049, and administrative penalty assessments and other sanctions under §§415.021, 415.023, 415.032, and 415.034.

The burden of proof will be upon the party seeking relief in hearings conducted pursuant to §408.024 (when an insurance carrier seeks to be relieved of liability for health care that otherwise would be payable), §413.031 (when a party seeks to change the result of an initial medical dispute decision rendered by the commission's Medical Review division or an Independent Review Organization), and §413.055 (when a party disputes an interlocutory medical order issued by the commission pursuant to the rigorous requirements of §133.306 of this title (relating to Interlocutory Orders for Medical Benefits)). In each of these situations the party requesting the hearing is either seeking: (1) to overturn a previous decision of the commission after a previous proceeding has been held in which the party has had the opportunity to present its position and support its position or (2) is seeking to overturn liability normally established for a medical benefit under other provisions of the Act and the commission's rules. Setting the burden of proof upon the party contesting an earlier decision is in accordance with general judicial practices and encourages finality (and resulting reduction in dispute costs to system participants) of the original decision.

The burden of proof will be upon the Certified Self-Insurer in hearings conducted under §407.046 (concerning revocation of a certificate of authority to self-insure) because §407.046(d) of the Act impliedly places that burden by stating: "If the certified self-insurer fails to show cause why the certificate should not be revoked, the commission immediately shall revoke the certificate." In addition, the burden of proof will be upon the Certified Self-Insurer in hearings conducted under §407.133 (for failure to pay an assessment to the Texas Certified Self-Insurer Guaranty Association (TCSIGA) under Texas Labor Code §§407.124 and 407.125) because the Certified Self-Insurer will be attempting to overturn an assessment, determined in part by TCSIGA under criteria specified in those sections of the Texas Labor Code and the provisions in Chapter 407 of the Texas Labor Code that assign to TCSIGA vital roles to fulfill (for example, §407.042 requiring the approval of TCSIGA before the commission votes to issue a certificate of authority and §407.130 specifying TCSIGA as a party in interest in a proceeding involving a workers' compensation claim against an impaired employer whose compensation obligations have been paid or assumed by TCSIGA. The burden of proof shall be upon the party challenging the decision of the Director of the commission's Self-Insurance division in hearings conducted under §407.066 because that decision was made after input from various parties, who can present their various positions and support those positions prior to the rendering of the Director's decision.

The burden of showing a timely filing or good cause when an allegation of untimely filing has been made rests with the employer under §120.2 of this title (relating to Employer's First Report of Injury) because §120.2 establishes that burden of proof.

Subsection (b) specifies an exception to proof by preponderance of the evidence for IRO appeals. Section 133.308(w) of this title (relating to Medical Dispute Resolution by Independent Review Organizations) provides: "In all appeals from reviews of prospective or retrospective necessity disputes, the IRO decision has presumptive weight."

Existing §148.15 (relating to Ex Parte Communications) has been deleted because the same provisions are contained in proposed new §148.12. Proposed new §148.15 contains the provisions of existing §148.22 with revisions.

Subsection (a) lists the types of hearings where the SOAH ALJs render final decisions in accordance with §402.073(b) of the Act (relating to Cooperation With State Office of Administrative Hearings).

The provisions of existing §148.22(b) thru (d) have not been included in proposed new §148.15 because of the preemption by SOAH in accordance with §2003.050(b), Government Code and SOAH's adoption of its procedural rules in Chapter 155 of Title 1 (relating to Rules of Procedure) and because Texas Labor Code §401.021(1)(A) specifically excludes Subchapter F of the APA as a subchapter that governs a proceeding or hearing under the Act. Subchapter F of the APA includes §2001.141 that specifies the requirements for findings of fact and conclusions of law, separately stated, among other requirements of a final order. Texas Labor Code §401.021(1)(D) does include §2001.141(c) that provides: "Findings of fact may be based only on the evidence and on matters that are officially noticed."

New subsection (b) includes the compliance provisions in existing §148.22(e) with revisions: (1) to change the term "hearing officer" to "ALJ" consistent with proposed section 148.1 (relating to Definitions); (2) to add language that will notify the recipient of the order in a compliance action of the date the compliance action must be completed, to determine the date of receipt of the order according to §102.5 of this title (relating to General Rules for Written Communications to and from the Commission), and to ensure that any administrative penalty is specified as a certain dollar amount and that the order will specify a period of time for payment of any administrative penalty not to exceed 30 days from the date that the order is received; and (3) to delete the last, existing sentence as unnecessary. Compliance orders must have language necessary to ensure that the recipient of such orders knows exactly what is required and when such action needs to be taken. In addition, if timely action does not occur as ordered, the Commission will be able to take proper enforcement actions.

New subsection (c) specifies the manner of service of SOAH decisions to allow such service to be accomplished by a verifiable means that must be documented in the hearing file. This change recognizes existing and future changes in technology as well as the need for documentation of the service so that TWCC can take any necessary further actions (for example, actions that may be needed to enforce orders) after it receives the hearing file from SOAH. For the same reasons, additional language has been added to ensure that service by personal delivery is documented to contain the date of delivery and the person, any business title, and the person's business address that received the delivery.

New subsection (d) contains the provisions in current §148.22(h), with revisions. This subsection specifies the date when a SOAH decision becomes final. Current provisions are revised: (1) to change the term "hearing officer" to "ALJ" consistent with proposed section 148.1 (relating to Definitions); (2) to specify the date as the date of receipt determined in accordance with §102.5 of this title (relating to General Rules for Written Communications to and from the Commission); and (3) to delete the last, existing sentence as unnecessary. The added provisions should ensure that the date a SOAH decision becomes final is determined consistently.

New subsection (e) contains the provisions of existing §148.22 (i) that the SOAH decision constitutes the exhaustion of administrative remedies with two revisions: (1) the term "hearing officer" is changed to "ALJ" consistent with proposed section 148.1 (relating to Definitions), and (2) a clarification that no motion for rehearing is required pursuant to the APA or otherwise.

New subsection (f) contains the provisions for judicial review under the authority of the Act and the APA.

Proposed new §148.16 contains the provisions of existing §148.23.

Subsection (a) has been revised to replace the reference to §408.023 of the Act with §408.0231 of the Act because the latter is the section that includes a right to a hearing. Additional language has been added to reference other possible cases under §402.073(b) of the Act that require a proposal for decision. The last sentence of existing §148.23(a) has been deleted because the procedures have been preempted by SOAH in accordance with §2003.050(b), Government Code and SOAH's adoption of its procedural rules in Chapter 155 of Title 1 (relating to Rules of Procedure) and specifically §155.59 (relating to Proposal for Decision).

Subsection (b) describes the basis for the proposal for decision, requires it be in writing and contain information cited in proposed new §149.9 of this title (relating to Proposals for Decision in accordance with the Act, §§402.072, 407.046, and 408.0231).

New subsection (c) requires that SOAH furnish the proposal for decision to the TWCC Chief Clerk and that SOAH shall furnish the proposal for decision, by verifiable means, to the parties to the hearing and retain information on the date, address, person or entity served and the means of service to the parties to the hearing. These revisions will allow TWCC to determine the date of service of the proposal for decision so that the due dates for any exceptions by the parties can be determined.

New subsection (d) addresses the filing of briefs and exceptions to the proposal for decision and requires that the parties furnish their briefs and exceptions both to the SOAH ALJ and to the TWCC Chief Clerk so that commission staff may monitor the case and expeditiously make preparations for presentation of the case to the Commissioners.

New subsection (e) contains the provisions of existing §148.23(g) revised to require that the parties furnish their briefs and replies both to the SOAH ALJ and to the TWCC Chief Clerk so that commission staff may monitor the case and expeditiously make preparations for presentation of the case to the Commissioners. In addition, the ten-day time limit would be changed to 15 days in accordance with SOAH's rule at §155.59 of Title 1 (relating to Proposal for Decision).

New subsection (f) contains the provisions of existing §148.23(h) revised to provide that the TWCC commissioners shall consider a case no later than 120 days either from the date the SOAH ALJ provides a proposal for decision or, if any exceptions or replies are filed by the parties, then the date of the ALJ's comments or response to such exceptions or replies. If the ALJ communicates to the commission that no ALJ response will be made to the exceptions or replies of the parties, the date of that ALJ communication to the commission will be the date when the 120 days commences. If the ALJ does not respond after exceptions or replies are filed, the 120-day period commences upon expiration of the 15-day period allowed for the ALJ response in SOAH's rules at §155.59(c)(4) of Title 1 (relating to Proposal for Decision). In addition, notification of the final decision of the Commissions will be made by verifiable means to reflect past and future changes in technology. The last sentence of existing §148.23(h) is not included and is no longer necessary because the applicable provisions are contained in §102.5 of this title (relating to General Rules for Written Communications to and from the Commission).

New subsections (g) and (h) contain the provisions of existing §148.23(i) revised to clarify that no motion for rehearing will be considered. No motion for rehearing will be considered because §401.021(1)(A), Labor Code specifically excludes Subchapter F of the APA as a subchapter that governs a proceeding or hearing under the Act. Subchapter F of the APA includes §§2001.145, 2001.146, and 2001.147 concerning motions for rehearing. Judicial review is in accordance with the Act and the APA §§2001.171, 2001.172, and 2001.174.

Proposed new §148.17 contains the provisions of existing §148.24 revised to : (1) change the term "hearing officer" to "ALJ" consistent with §148.1 of this title (relating to Definitions), (2) correct a reference to proposed §148.15(c) of this title, and (3) to note that the charged party shall file with the TWCC Chief Clerk rather than the commission's executive director.

Proposed new §148.18 contains the provisions of existing §148.25, revised to change the term "hearing officer" to "ALJ" consistent with §148.1 of this title (relating to Definitions).

Proposed new §148.19 contains the provisions of existing §148.26 revised to include videotape, if that method was used in the SOAH hearing.

Proposed new §148.20 revises and clarifies the provisions in existing §148.27.

Subsection (a) specifies the amounts determined under the APA §2001.103 as the maximum amounts of reimbursement for a non-party witness who is subpoenaed or required to participate in a deposition.

Subsection (b) places the responsibility upon the party who is requesting the subpoena, the commission requiring deposition, or otherwise compelling the attendance of a witness, to pay the reasonable and necessary expenses of such witness in accordance with the APA, §2001.103(b).

Subsection (c) specifies that a party's failure to pay required witness expenses shall be deemed a violation of a commission rule.

Subsection (d) contains the documentation and information required by the commission from the party requesting the subpoena or commission requiring deposition, prior to refund of the deposit made under proposed §148.10(b)(3) or §148.11(d)(3). Such documentation and information is needed because: (1) the commission has previously issued the subpoena or commission requiring deposition that commands the witness to appear, (2) the party requesting the subpoena or commission requiring deposition is required to pay the reasonable and necessary costs of the witness, (3) any failure by the party to pay the required witness expenses may result in the witness seeking assistance from the commission for the unpaid but incurred expenses, (4) the commission has not been appropriated funds for payment of such expenses, and (5) the required deposit from the requesting party may be needed to resolve any failure of the party to pay the expenses of a non-party witness.

Proposed new §148.21 contains the provisions in existing §148.28 revised to include the authority in the APA §2001.177 for the commission to require the party requesting judicial review to pay the expenses of preparing a certified copy of the entire record of the case.

Proposed new §148.22 specifies that a person commits an administrative violation by violating a commission rule if that person fails to comply with an order of the ALJ. Persons and parties, either participating in SOAH hearing or required to be witnesses in such hearings, must comply with ALJ orders. If noncompliance occurs, then TWCC may take administrative sanction actions as authorized under the Act.

Proposed new §148.23 specifies that any final order of SOAH is a final order of the commission and may be enforced by the commission under the Act, the APA, or commission rules. In addition, if an interim SOAH order survives the entry of a final order, the sending of a proposal for decision to the commission, or the dismissal or withdrawal of a case, such interim order will be considered an order of the commission and may be enforced by the commission in a manner permitted by the Act, the APA, or the rules of the commission. Examples of such orders are specified as orders to reimburse, orders to pay reasonable and necessary medical costs, orders to pay administrative fines, orders to refund, orders assessing attorney fees, orders assessing costs, and orders imposing discovery sanctions. This new section should provide additional support to ensure compliance with SOAH orders.

Allen McDonald, director of the commission's Medical Review division, has determined that for the first five-year period the proposed sections are in effect there will be fiscal implications for state or local governments as a result of enforcing or administering the new sections. While the dollar amounts of the fiscal implications cannot be determined because of the uncertainty of the number of hearings to be held in the future, costs for the hearings held by the State Office of Administrative Hearings will be reimbursed by the commission as required by law.

Allen McDonald, director of the commission's Medical Review division, has also determined that for each year of the first five years the new sections as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be to provide fair and efficient procedures for the conduct of those commission contested case hearings which will be conducted by State Office of Administrative Hearings administrative law judges.

The anticipated economic costs to persons who are required to comply with the rule as proposed cannot be accurately estimated. There may be economic costs to persons who are required to comply with the sections as proposed due to filings of contested case documents being made at SOAH as well as with the TWCC Chief Clerk. There also may be economic costs to persons who request the commission to issue subpoenas or commissions requiring depositions due to the requirements to make a deposit of costs with the commission and the requirement to pay witness expenses. The amount of any additional costs to persons due to the filing requirements cannot be accurately estimated because the number of filings in a case varies depending on many factors. The amount of any economic costs due to the commission's process and requirements for issuing subpoenas and commissions requiring depositions cannot be accurately estimated because the number of such requests and the costs that may be incurred by the witnesses could vary substantially. In addition, the cost of mailing a filing is generally dependent on the weight of the mailed documents. There may, also, be reduced costs in hearings for many parties in hearings involving issues of medical fees and services because of the procedures allowing for the commission to correct clerical errors in medical dispute decisions. There will be no adverse economic impact on small or micro-businesses. There will be no difference in anticipated costs of compliance for small businesses as compared to large businesses.

Comments on the proposal must be received by 5:00 p.m., April 4, 2005. You may comment via the Internet by accessing the commission's website at www.twcc.state.tx.us and then clicking on "Rules" and then clicking on "Proposed Rules for Comment." 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 Linda Velasquez, Legal Services, Mailstop #4-D, Texas Workers' Compensation Commission, 7551 Metro Center Drive, Suite 100, Austin, Texas 78744.

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 rules as proposed for repeal, may be repealed or may be repealed only in part. Persons in support of the rules repeal, as proposed, in whole or in part, may wish to comment to that effect.

A public hearing on this proposal will be held at the Austin central office of the commission (7551 Metro Center Drive, Suite 100, Austin, Texas) on a date to be announced. 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 Texas Workers' Compensation Commission (the commission) proposes new §§149.1 - 149.10 concerning an interagency agreement between the commission and the State Office of Administrative Hearings (SOAH) for administrative law judges of SOAH to conduct certain contested case hearings under the Workers' Compensation Act (the Act). The commission also proposes simultaneous repeal of current §§149.1-149.10. New commission procedural rules for such hearings have simultaneously been proposed in Chapter 148 of this title (relating to Hearings Conducted by the State Office of Administrative Hearings). The interagency agreement between the commission and SOAH is required by §402.073(a) of the Texas Labor Code.

The proposed new rules include elimination of provisions of existing Chapter 149 rules that have been preempted by SOAH in accordance with §2003.050(b), Texas Government Code and SOAH's adoption of its procedural rules in Chapter 155 of Title 1 (relating to Rules of Procedures). SOAH declined to adopt any specific procedural rules of the commission. (22 TexReg 12721). SOAH has stated that its procedural rules are not intended to affect agency rules that pertain to events that occur before SOAH takes jurisdiction or after SOAH loses jurisdiction over a case and that agencies may have their own procedural rules in areas not covered by SOAH procedural rules. (22 TexReg 12720). SOAH has stated that its procedural rules were established "...to continue with the general, established practice at SOAH that the referring agencies initially issue subpoenas and commissions. ...The general procedure has worked efficiently for SOAH, and referring agencies have been able to handle the task as a ministerial matter without confusion. ...the SOAH ALJ will rule on motions to quash the subpoena or commission based on lack of a showing of good cause or for other alleged deficiencies." (22 TexReg 12728).

Proposed new §149.1 includes definitions of terms contained in current §149.2, with revisions to the definition of "contested case" to include additional references to hearings in the Act, and would add new definitions for the acronyms "APA" (the Administrative Procedure Act) and "IRO" (an Independent Review Organization).

Proposed new §149.2 includes the "General Statement" in existing §149.1, with clarifying changes. The general statement sets out the purpose of the Memorandum of Understanding between the commission and SOAH.

Proposed new §149.3 contains the provisions in current §149.3, updates reference to forms used by system participants to request SOAH hearings, and contains guidelines for the length of time for hearings to be set. Subsection (c) has been added to provide commission policy relating to the need for prompt hearings depending on the type of contested case referred to SOAH.

Proposed new §149.4 sets out and clarifies the contents of a notice of hearing in a SOAH case and the time period for providing such notice.

Proposed new §149.5 references the statutes and rules governing SOAH hearings. The rule does not include the "Filing Requirements" currently contained in §149.6 because these provisions are preempted by SOAH's procedural rules.

Proposed new §149.6 contains updated and clarifying provisions concerning statutory confidentiality requirements.

Proposed new §149.7 allows withdrawal of a findings and decision of the commission's medical review division or an IRO decision within 15 working days of the date the request for hearing is received by the Commission. Procedures for accomplishing this withdrawal and subsequent dismissal are also addressed in this section.

Proposed new §§149.8, 149.9, and 149.10 contain the provisions of existing §§149.7, 149.8 and 149.9 with minor modifications. The current requirement to utilize the Texas Rules of Form is deleted to allow use of other citation formats. Language is included to allow for changes that have occurred and will occur in technology for verifiable means of transmittal, and to allow amendment of a proposal for decision by an ALJ or comments by an ALJ. A requirement has been added that SOAH find in a proposal for decision whether the commission is authorized by the Act or commission rules to take disciplinary or sanction action against the Petitioner in the SOAH hearing.

Existing provisions in current §149.10 are deleted because those provisions concern the 1995-1996 transfer of hearings to SOAH and are no longer needed.

Allen McDonald, director of the commission's Medical Review division, has determined that for the first five-year period the proposed sections are in effect there will not be fiscal implications for state or local governments as a result of enforcing or administering the new proposed amendments. The procedures currently utilized by parties to SOAH contested case hearings are those contained in the existing rules of the commission and SOAH and those procedures have not been revised to cause any significant fiscal implications.

Allen McDonald, director of the commission's Medical Review division, has also determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be to provide fair and efficient procedures for both the commission and SOAH to handle requests for certain contested case hearings under the Texas Workers' Compensation Act. While the anticipated economic costs to individuals, who are required to comply with the new proposed amendments, cannot be accurately estimated, because the complexity, duration and number of future hearings is unknown, the new proposed amendments are not anticipated to increase the average, procedural costs of a contested case hearing. There may be economic costs to persons who are required to comply with the proposed new amendments due to filings of contested case documents being made at SOAH as well as with the TWCC Chief Clerk especially after a proposal for decision is made by an ALJ at SOAH. There will be no difference in anticipated costs of compliance for small businesses as compared to large businesses.

The commission staff posted a pre-proposal draft rule for informal public input on the commission's website from January 11, 2005 through January 21, 2005. The commission reviewed the input and other available information, sought clarification, and now proposes these rule amendments.

Comments on the proposal must be received by 5:00 p.m., April 4, 2005. You may comment via the Internet by accessing the commission's website at www.twcc.state.tx.us and then clicking on "Rules" and then clicking on "Proposed Rules for Comment." 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 Linda Velasquez, Legal Services, Mailstop #4-D, Texas Workers' Compensation Commission, 7551 Metro Center Drive, Suite 100, Austin, Texas 78744.

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 rules as proposed for repeal, may be repealed or may be repealed only in part. Persons in support of the rules repeal, as proposed, in whole or in part, may wish to comment to that effect.

A public hearing on this proposal will be held at the Austin central office of the commission (7551 Metro Center Drive, Suite 100, Austin, Texas) on a date to be announced. 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 .