Part 1.
TEXAS DEPARTMENT OF INSURANCE
Chapter 5.
PROPERTY AND CASUALTY INSURANCE
Subchapter E. TEXAS WINDSTORM INSURANCE ASSOCIATION
7.
INSPECTIONS FOR WINDSTORM AND HAIL INSURANCE
28 TAC §5.4607
The Commissioner of Insurance adopts new §5.4607, concerning
the procedures for the appointment by the Commissioner, based on demonstrated
need, of temporary qualified inspectors to conduct windstorm inspections in
designated catastrophe areas pursuant to the Insurance Code Article 21.49 §6A.
The section is adopted without change to the proposed text as published in
the June 9, 2006, issue of the
Texas Register
(31
TexReg 4696).
The purpose of the Texas Windstorm Insurance Association (Association)
is to provide windstorm and hail insurance coverage to residents and businesses
in the designated catastrophe areas along the Texas coast that are unable
to obtain such coverage in the voluntary market. In order to obtain or maintain
windstorm and hail insurance through the Association after an insured's property
has been damaged by a windstorm, a property owner must ensure that the rebuilding
or repair of the property is done in conformance with the applicable windstorm
building code. The purpose of the windstorm building code standards is to
minimize windstorm damage to structures and to thereby minimize loss of life,
property and economic losses caused by catastrophic windstorms.
This new section is necessary to establish procedures for the appointment
of temporary qualified windstorm inspectors in the designated catastrophe
areas, following a natural disaster that results in major windstorm and/or
hail damage, to inspect damaged structures as soon as possible in order that
the repairs or rebuilding may be completed in a timely manner. The Department
in adopting this rule is seeking to prevent potential adverse impact to residents
and business owners who are trying to rebuild or to repair their properties
to meet the windstorm building code requirements following a catastrophe and
to minimize negative economic consequences to the affected catastrophe areas.
The rule will assist in ensuring that an adequate number of temporary qualified
inspectors are available in designated catastrophe areas for windstorm inspections
when the need arises. This rule will enable the Commissioner to make these
inspector appointments in an expedited manner without having to adopt separate
rules for each designated catastrophe area that requires additional inspectors
following a major catastrophe.
To determine if repairs or rebuilding of damaged structures are in compliance
with the applicable building code, a windstorm inspection is conducted before
the final work is completed so that the inspector is able to observe the contractor's
adherence to the applicable building code. A certificate of compliance that
is evidence of insurability by the Association is issued if the rebuilding
or repair is determined to be in compliance with the applicable building code;
this certificate of compliance enables the building owner to obtain or retain
insurance through the Association. It is necessary to have enough inspectors
available in the catastrophe areas so that all damaged structures can be inspected
and repaired or rebuilt as quickly as possible. Insurance Code Article 21.49 §6A
provides that a windstorm inspection may only be performed by a qualified
inspector who must be approved and appointed or employed by the Department
to perform building inspections.
As a result of Hurricane Rita in 2005, the Department found that in the
aftermath of a hurricane or other catastrophe, residents and business owners
in the affected catastrophe areas faced delays in the completion of the rebuilding
or repair of structures because of the overwhelming demand for windstorm inspections
and the lack of qualified inspectors to meet this demand. The delay in completion
of the rebuilding and repair of structures had a negative influence in the
economic stability of the affected area. In the past, the Department has used
various measures to increase the number of windstorm inspectors. Following
Hurricane Rita, the Department temporarily assigned its inspectors from other
areas of the coast to the affected areas, provided by rule for the temporary
appointment of inspectors in the most needed areas, and in cooperation with
the Association, provided additional inspection assistance through independent
contract inspectors. Even with these measures, the Department discovered that
the time required to complete the procedures to appoint temporary inspectors
imposed negative influences in the catastrophe areas. There is a need for
the Department to act earlier and more quickly following any future catastrophe
to address the overwhelming demand for windstorm inspections and the lack
of qualified inspectors to meet this demand.
The adopted rule provides for procedures, qualifications, and requirements
for the appointment of temporary qualified windstorm inspectors on an as-needed
basis. Under the rule, the Commissioner may make appointments of temporary
inspectors if the Commissioner, following notice and a public hearing, determines
that the appointment of additional inspectors is necessary to alleviate or
prevent long delays for inspections of windstorm damaged structures and that
qualified inspectors are not reasonably available. The rule provides that
the issuance of a temporary appointment to a qualified inspector only authorizes
the appointee to inspect structures for the purposes of determining whether
windstorm and hail insurance may be provided by the Association and provides
that no other types of inspections by temporary appointees will be valid for
purposes of the Insurance Code Article 21.49. The rule provides that temporary
appointees will be subject to the provisions of the Department's current rule §5.4604
relating to the appointment of engineers as qualified inspectors, including
oversight by the Department, and will also be subject to the emergency cease
and desist provisions of the Insurance Code Chapter 83. This is necessary
to ensure that improper inspections are halted as quickly as possible to prevent
and deter approval of faulty or inadequate building, re-building, adding to,
or repairing of structures, which could result in certification of structures
that do not meet windstorm building code requirements and also to prevent
additional harm to the property of residents and business owners.
The proposed new section was considered in a public hearing on June 21,
2006, under Docket Number 2642. No comments on the proposal were submitted
either during the comment period or at the hearing.
New §5.4607(a) specifies that the purpose of the section is the establishment
of the procedures for the appointment of temporary inspectors for a limited
period on an as-needed basis, the qualifications of temporary inspectors,
and the requirements for the appointment of persons to perform such inspections.
Subsection (b) provides that temporary inspector appointments may be made
only upon a determination by the Commissioner after notice and a hearing that
qualified inspectors are not reasonably available in the first tier coastal
counties specified in the Insurance Code Article 21.49 and/or in designated
catastrophe areas as defined by Article 21.49 §3(h), and further provides
that an order by the Commissioner shall specify the reasons for the temporary
appointments, the designated catastrophe areas in which the temporary inspector
appointments are authorized, the types of inspections the temporary inspectors
are authorized to perform, the period of time for which the appointments are
effective, and any other requirements necessary to properly ensure the availability
of qualified inspectors as needed in the designated catastrophe areas. Subsection
(c) specifies the qualifications, including necessary experience and training,
of persons eligible to apply for a temporary appointment. It provides that
the following persons are eligible to apply for an appointment as a temporary
qualified inspector: a certified coastal inspector who has at least two years
of construction, design or inspection experience on building or structures
located in high wind areas; a Texas registered architect with construction,
design or inspection experience on buildings or structures located in high
wind areas; and any person with experience, education or training in programs
at an accredited university which shall include at a minimum successful completion
of at least two years of technical or university training in the field of
civil or architectural engineering, the field of architecture, or the field
of construction technology or construction science and at least two years
of construction, design or inspection experience on buildings or structures
located in high wind areas. Subsection (c) also specifies the necessary forms,
affidavits and other documents needed for application. Subsection (d) defines
terms used throughout the section. Subsection (e) outlines the application
process for an appointment. Subsection (f) specifies the training an appointee
must undergo, which is a two-hour orientation and training session provided
by the Department at one of its field offices or in Austin, Texas. Subsection
(g) specifies prohibited financial interests for applicants and temporary
appointees. Subsection (h) requires that temporary appointees comply and utilize
certain specified windstorm inspection forms. Subsection (i) provides that
temporary appointees will be subject to the provisions of the Department's
current §5.4604 relating to the appointment of engineers as qualified
inspectors, including oversight by the Department. Subsection (j) prohibits
temporary appointees from delegating any duties that are part of the authorization
of their temporary appointment. Subsection (k) provides that the issuance
of a temporary appointment to a qualified inspector only authorizes the appointee
to inspect structures for the purposes of determining whether windstorm and
hail insurance may be provided by the Association and provides that no other
types of inspections by temporary appointees will be valid for purposes of
the Insurance Code Article 21.49. It further provides that a temporary appointment
issued under this section shall be valid only for the areas and period of
time specified by the Commissioner in the order of temporary appointment;
at the end of such period or upon action by the Department, the appointment
will expire. Subsection (l) provides that temporary appointees will be subject
to the provisions of the Department's current §5.4604, relating to the
appointment of engineers as qualified inspectors, including oversight by the
Department, and will also be subject to the emergency cease and desist provisions
of the Insurance Code Chapter 83. Subsection (m) contains a severability clause
which provides for the continuation of non-affected provisions of the rules
if any provisions are declared invalid.
The Department did not receive any comments on the published proposal.
The new section is adopted pursuant to the Insurance Code Article
21.49 §6A and §36.001. Article 21.49 §6A(d) provides that a
windstorm inspection may only be performed by a qualified inspector who must
be approved and appointed or employed by the Department to perform building
inspections. Section 6A(d) also provides that a qualified inspector includes
a person determined by the Department to be qualified to perform building
inspections because of training or experience and/or an inspector who is certified
by the International Code Council, the Building Officials and Code Administrators
International, Inc., the International Conference of Building Officials, or
the Southern Building Code Congress International, Inc. (all now known as
the International Code Council) who has certifications as a buildings inspector
and coastal construction inspector, and who also complies with other requirements
specified by rule by the Commissioner. Section 36.001 provides that the Commissioner
of Insurance may adopt any rules necessary and appropriate to implement the
powers and duties of the Texas Department of Insurance under the Insurance
Code and other laws of this state.
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 August 1, 2006.
TRD-200603995
Brenda Caldwell
Assistant General Counsel
Texas Department of Insurance
Effective date: August 21, 2006
Proposal publication date: June 9, 2006
For further information, please call: (512) 463-6327
Chapter 276.
GENERAL ADMINISTRATION
Subchapter B. OMBUDSMAN PROGRAM
The Office of Injured Employee Counsel (OIEC) adopts the repeal of §276.10
and §276.11, new §276.10, and amendments to §276.12, concerning
ombudsman training and education and private meetings with unrepresented injured
employees. The adopted repeal of §276.10 and §276.11, new §276.10,
and amendments to §276.12 are necessary to implement OIEC's ombudsman
education and training program pursuant to Labor Code §404.152 as amended
by House Bill (HB) 7, 79th Texas Legislature, Regular Session, 2005. The repeal
of §276.10 and §276.11 is adopted without changes, and new §276.10
and the amendments to §276.12 are adopted with changes to the proposed
text as published in the June 23, 2006, issue of the
Texas Register
(31 TexReg 5053).
The adopted repeal of §276.10 is necessary to reduce confusion as
necessary definitions are adopted in new §276.10(a). The repeal of §276.10
provides for future OIEC rulemaking initiatives, particularly in providing
a single location for Chapter 276 definitions.
The adopted repeal of §276.11 and adopted new §276.10 are needed
to provide an extensive ombudsman education and training program for an ombudsman's
assistance to an unrepresented injured employee in the Texas Workers' Compensation
System. The adopted repeal of §276.11 and new §276.10 are necessary
to implement a detailed process and procedure to deliver workers' compensation
education to ombudsmen, provide a system for continuing education for ombudsmen,
and to assure that injured employees of Texas are provided with assistance
in both informal and formal dispute resolution proceedings in the workers'
compensation system.
The adopted amendments to §276.12 are necessary to complete the transfer
of the ombudsmen education and training program from the former Texas Workers'
Compensation Commission to OIEC. The adopted amendments to §276.12 are
necessary to provide clarity to ombudsmen and injured employees in preparing
for informal and formal proceedings.
Section 276.10(a) provides for definitions for the section. Subsections
(b) provides for OIEC to establish and maintain an education and training
program that ensures consistent, quality, and thorough training of ombudsman
staff. Subsection (c) delineates between the Injured Employee Services and
ombudsmen training and education responsibilities. The amendments to §276.12
establishes requirements for ombudsmen to meet privately with unrepresented
injured employees for a minimum of 15 minutes prior to a proceeding. Subsection
(c) has been changed from proposal to clarify that an ombudsman shall request
a recess from the proceeding if an ombudsman becomes aware that the unrepresented
injured employee has not met with an ombudsman for a minimum of 15 minutes
prior to the proceeding. Subsection (d) establishes ombudsman procedures for
when an unrepresented injured employee refuses ombudsman assistance.
The public benefits anticipated as a result of the adoption shall be a
more comprehensive ombudsman education and training program. Injured employees
shall benefit from an ombudsman program where ombudsmen provide assistance
to injured employees in both informal and formal workers' compensation proceedings.
Both injured employees and ombudsmen will benefit from the existence of regional
staff attorneys who will provide legal research and advice to ombudsmen assisting
injured employees.
It is anticipated that all system participants will benefit from a workers'
compensation system where unrepresented injured employees receive a higher
level of assistance in benefit review conferences and contested case hearings.
An increased level of ombudsmen education and training is likely to result
in a workers' compensation system that provides increased access to assistance,
narrows the information disparity in proceedings where an injured employee's
right to benefits is at stake, and provides additional information and education
on the injured employee's rights and responsibilities in the workers' compensation
system. Further, an increased ombudsmen education and training program is
anticipated to provide ombudsmen with the skill set and resources to provide
a more efficient level of assistance for Texas' injured employees.
The following is a summary of the public comment received during the comment
period and OIEC's response to the comment:
Comment: One commenter suggested prescribing additional procedures in §276.12(d)
regarding the meeting between an injured employee and ombudsman prior to a
proceeding. The commenter requested a procedure to resume the proceeding in
situations when an injured employee chose not to meet with an ombudsman prior
to a proceeding, unless the ombudsman did not have sufficient material to
go forward with the proceeding.
Agency Response: OIEC appreciates the commenter's suggestion but declines
to make the requested change. OIEC's ombudsmen are charged with assisting
unrepresented injured employees to protect their rights in the workers' compensation
system pursuant to Labor Code §404.101(b)(2)(C) and §404.151(b)(4).
The ombudsman's role is to assist, not represent (ie. serve as an attorney),
injured employees at the administrative level of the workers' compensation
system. As such, an ombudsman cannot proceed at a benefit review conference
or a contested case hearing without the injured employee, who is considered
the party in the proceeding, because the ombudsman is not representing the
injured employee. Further, Labor Code §404.151(b)(5) requires ombudsman
to meet with unrepresented claimants privately for a minimum of 15 minutes
prior to any informal or formal hearing. OIEC does not have the statutory
authority to either provide exceptions or waive this requirement.
The following are the names of those who submitted public comment:
For, with changes: The Boeing Company
Part 6.
OFFICE OF INJURED EMPLOYEE COUNSEL