TITLE 28.INSURANCE

Part 2. TEXAS DEPARTMENT OF INSURANCE, DIVISION OF WORKERS' COMPENSATION

Chapter 126. GENERAL PROVISIONS APPLICABLE TO ALL BENEFITS

28 TAC §§126.5 - 126.7

The Texas Department of Insurance, Division of Workers' Compensation proposes amendments to §126.5 and §126.6 and new §126.7 concerning required medical evaluations, entitlement and procedure for requesting a designated doctor. The proposed amendments and new section are necessary to implement changes to the Labor Code §§408.004 and 408.0041 as a result of House Bill (HB) 7, enacted by the 79th Legislature, Regular Session, effective September 1, 2005.

HB 7 changed Labor Code §408.004 to limit the use of an insurance carrier selected doctor for a required medical examination (RME) to only the resolution of issues regarding the appropriateness of the health care received by an injured employee (employee). Proposed amendments to §126.5 provide clarification regarding the reasons and timeframes for which an RME may be requested and granted.

Proposed amendments to §126.6 provide clarification regarding rescheduling appointments when there is a scheduling conflict, filing of reports by the RME doctor, suspension and reinstatement of temporary income benefits (TIBs) when the employee fails to attend, without good cause, a required medical exam following a designated doctor exam. Specifically, subsection (b) permits the examining doctor and injured employee to extend the rescheduled date beyond seven days from the originally scheduled appointment by mutual agreement without resort to intervention by the Division, simplifying the process. Proposed subsections (e) - (h) clarify the reporting requirements for allowable RMEs. Proposed subsection (g) clarifies that a return to work determination by an RME, whether pursuant to Labor Code §§408.0041 or 408.151, is a post-designated doctor examination, providing consistency in the RME process. Additionally, proposed subsection (j) tracks the revised circumstances in Labor Code §§408.004 and 408.0041 under which an injured employee's failure to attend an RME, without good cause, permits an insurance carrier to suspend TIBs. Those circumstances are statutorily limited to RMEs following a designated doctor examination. Proposed subsection (j) is further amended to reinitiate TIBs, following an injured employee's attendance at a rescheduled examination, effective upon the date the injured employee contacted the doctor's office to reschedule the examination. This eliminates unnecessary gaps in benefit distribution to the injured employee for administrative delays.

HB 7 also changed Labor Code §408.0041 to expand the issues a designated doctor may be asked to evaluate, and to allow an insurance carrier to have an RME to evaluate maximum medical improvement (MMI) and permanent whole body impairment, the extent of the employee's compensable injury, whether the employee's disability is a direct result of the work related injury, the ability of the employee to return to work, or similar issues, but only after a designated doctor examination for the specific issue(s) has taken place. The Division has determined that existing §130.5 is no longer appropriate in Chapter 130 as the role of the designated doctor has been expanded to address other issues than those related to maximum medical improvement, whole body impairment ratings and Supplemental Income Benefits (SIBs). As such, the general designated doctor procedural aspects of §§130.5 and 130.6 have been moved to proposed new §126.7. Proposed §126.7 provides procedural guidance regarding the request for, and selection of, a designated doctor. The new section also provides procedural guidance regarding the responsibilities of the designated doctor. To harmonize procedures related to the expanded role of designated doctors in the workers' compensation system, subsection (i)(2) of proposed §126.7 permits the marking and highlighting of medical records submitted by the treating doctor and insurance carrier for all determinations made by a designated doctor, including those made pursuant to Labor Code §408.151. Prior rules prohibited the marking of medical records as it pertained to RTW determinations during SIBs. Other changes to past procedures associated with designated doctor examinations are found in subsection (i)(3) and (4), which extend the time treating doctors and insurance carriers have to provide the designated doctor with medical records and analyses, reducing the necessity of rescheduling the examination. The records would now be required to be 'sent' within five working days of the examination, and 'received' at least one working day prior to the examination. Further preventing a delay in resolution of questions presented to the designated doctor is subsection (j), which requires the completion of additional testing by the designated doctor or another provider on referral within seven working days of the designated doctor's physical examination. The 7-day timeframe has been retained from past rules because the timeliness of a designated doctor report has implications for the appropriate delivery of benefits. Delays in receiving the doctor's report can result in overpayment or underpayment of income benefits or a delay in obtaining necessary medical benefits. Additionally, proposed subsection (v) formally permits parties to file a request for clarification of a designated doctor's report with the Division, and requires a copy of the request be provided to the opposing party. The determination to forward the request to the designated doctor remains at the discretion of the Division, but this process provides the opposing party with notice and an opportunity to have its position considered by the Division. Existing §126.7 is proposed for repeal elsewhere in this issue of the Texas Register .

The Division has made changes throughout the proposal to reflect language changes of "commission" to "Commissioner" or "Division" as appropriate.

Brent Hatch, Director, Central Claims Management and Customer Services, has determined that for the first five-years the proposed sections will be in effect, there will be no fiscal impact to state and local governments as a result of the enforcement or administration of the proposed sections. There will be no measurable effect on local employment or the local economy as a result of the proposal.

Mr. Hatch has also determined that for each year of the first five years the proposed sections are in effect the public benefits anticipated as a result of enforcing the sections will be compliance with and implementation of legislative directives and consistency in the rules under which all Texas Workers' Compensation system participants function.

The proposed amendments to the sections are supportive of and consistent with changes being made to other rules as a result of HB 7, and those changes are the larger driver of benefits and costs to be experienced.

The anticipated benefit to employees will be more clearly regulated required medical exams (RMEs). It is anticipated that employees will experience no additional costs.

The anticipated benefit to insurance carriers is faster resolution of disputes, which should reduce the potential for overpayments (thus reducing costs). In addition, the companion changes being made to Chapters 180 and 130 regarding training of designated doctors, certification of MMI/assignment of impairment ratings, and easier access to designated doctors should reduce costs through fewer examinations and fewer disputes. It is anticipated that insurance carriers will benefit from the added clarification that should ensure that employees submit to RMEs when applicable, but only when applicable.

Employers should benefit to the extent that reductions may translate to savings in premiums, and from timely return to work of employees.

Health care providers should benefit from the clarification in the rules. They may experience increased training costs associated with the proposed rules, and the Chapter 180 rules concurrently proposed. The Division estimates that training costs will be approximately $500 to attend the initial required designated doctor training and testing. The bi-annual training costs are also estimated to be approximately $500.

It is anticipated that insurance carriers and employees will benefit from the requirements and prohibitions on initiating and terminating income benefits.

Any additional economic costs currently exist under existing rules or result from the enactment of HB 7 and are not a result of the adoption, enforcement, or administration of the proposed sections. There will be no difference in the cost of compliance between a large and small business as a result of the proposed sections. Based upon the cost of labor per hour, there is no disproportionate economic impact on small or micro businesses. Even if the proposed sections would have an adverse effect on small or micro businesses, it is neither legal nor feasible to waive the provisions of the proposed sections for small or micro businesses because the Labor Code requires equal application of these provisions to all affected individuals.

To be considered, written comments on the proposal must be submitted no later than 5:00 p.m. on March 6, 2006 to Norma Garcia, General Counsel, MS-4D, Division of Workers' Compensation, Texas Department of Insurance, 7551 Metro Center Drive, Suite 100, Austin, Texas 78744. An additional copy of the comment must be simultaneously submitted to Brent Hatch, Director of Central Claims Management and Customer Services, MS-600, Division of Workers' Compensation, Texas Department of Insurance, 7551 Metro Center Drive, Suite 100, Austin, Texas 78744. A request for a public hearing should be submitted separately to the General Counsel.

The sections are proposed under Labor Code §§408.004, 408.0041, 408.151, 402.00111, and 402.061. Section 408.004 provides for required medical examinations. Section 408.0041 provides for designated doctor examinations. Section 408.151 provides for required medical examinations and designated doctor examinations during supplemental income benefits. Section 402.00111 provides that the Commissioner of Workers' Compensation shall exercise all executive authority, including rulemaking authority, under the Labor Code and other laws of this State. Section 402.061 authorizes the Commissioner to adopt rules necessary to administer the Act.

The following statutes are affected by this proposal: Statute Labor Code §§408.004, 408.0041, 408.151

§126.5.Entitlement and Procedure for Requesting Required Medical Examinations.

(a) A doctor who has contracted with or is employed by an authorized workers' compensation health care network established under Chapter 1305, Insurance Code, (network doctor) may not perform a required medical examination, as those terms are used under the Texas Workers' Compensation Act, for an employee receiving medical care through the same network.

(b) The Division [ commission ] may authorize a required medical examination (RME) for any reason set forth in the Texas Workers' Compensation Act (the Act), Texas Labor Code[ , ]§408.004, §408.0041, or §408.151 at the request of the insurance carrier (carrier) [ , or the commission ]. The request shall be made in the form and manner prescribed by the Division [ commission ]. A carrier is not entitled to take action with respect to benefits based on, and the Division [ commission ] shall not consider, a report of an RME doctor that was not approved or obtained in accordance with this section.

(c) [ (b) ] Carriers [ carriers ] are entitled to RMEs by a doctor of their choice in accordance with this subsection as follows:

(1) Pursuant to Texas Labor Code §408.004, once every 180 days, to resolve any questions about the appropriateness of the health care received by the injured employee (employee)[ , or similar issues ]. The carrier's first RME may be requested at any time after the date of injury. A subsequent examination may be requested once every 180 days after the first examination and must be performed by the same doctor unless otherwise approved by the Division. This paragraph only applies to requests for required medical examinations of employees not receiving medical treatment through an authorized workers' compensation health care network. [ commission. For dates of injury on or after September 1, 1997, the commission may approve no more than three RMEs at the carrier's request before the expiration of 180 days in the event that a medical opinion is needed to determine if: ]

[ (A) there has been a change in the employee's condition;]

[ (B) there is a need to change the employee's diagnosis;]

[ (C) the treatment should be extended to another body part or system, or if the extent of injury has changed;]

[ (D) the compensable injury is a producing cause of additional problems or conditions;]

[ (E) disability exists, because of newly discovered information; or]

[ (F) a proposed surgery is necessary to treat the compensable injury.]

(2) For the purpose of evaluating a designated doctor's determination on the issues listed under Labor Code §408.0041, a [ Pursuant to Texas Labor Code §408.0041, for the purpose of evaluating a designated doctor's determination on maximum medical improvement (MMI) and/or permanent whole body impairment rating. A ] carrier is entitled to an examination under this subsection only after [ upon receipt of a Report of Medical Evaluation from ] a Designated Doctor exam under § 126.7 [ 130.6 ] of this title (relating to Designated Doctor Examinations : Requests and General Procedures [ for Maximum Medical Improvement and/or Impairment Rating ]).

(3) For the purpose of evaluating a designated doctor's determination pursuant [ Pursuant ] to Texas Labor Code §408.151, to determine if the employee's medical condition resulting from the compensable injury has improved sufficiently to allow the employee to return to work [ is a direct result of the impairment resulting from a compensable injury ]. For the purposes of this paragraph [ subsection ], the carrier may not require an employee to submit to an RME more than once per year if:

(A) an employee is receiving supplemental income benefits on or after the second anniversary of the date of the employee's initial entitlement to supplemental income benefits, and

(B) in the [ preceding ] year preceding the request for the RME , the employee's medical condition resulting from the compensable injury had not improved sufficiently to allow the employee to return to work during that year.

(d) [ (c) ] The [ On or after September 1, 2003, the ] doctor selected to perform an RME must be on the Division's [ commission's ] approved doctors list and, if the purpose of the examination is to evaluate MMI and/or permanent impairment, be authorized to assign impairment ratings under §130.1(a) of this title (relating to Certification of Maximum Medical Improvement and Evaluation of Permanent Impairment).

(e) [ (d) ] Except for an examination under subsection (b)(2) and (3) of this section, the Division [ commission ] shall not require an employee to submit to a medical examination at the carrier's request until the carrier has made an attempt to obtain the agreement of the employee for the examination as required by subsection (g) of this section . The carrier shall notify the Division [ commission ] in the form and manner prescribed by the Division [ commission ] of any agreement or non-agreement by the employee regarding the requested examination. An examination of an employee by a doctor selected by the carrier shall be requested as follows:

(1) Prior to requesting an RME from the Division [ commission ], the carrier shall send a copy of the request to the employee and the employee's representative (if any) in the manner prescribed by subsection (g) of this section in an attempt to obtain the employee's agreement to the examination.

(2) The carrier shall give the employee ten days to agree to the examination. The ten-day period begins on the fifth day after [ from ] the date the carrier sends the request to the employee and the employee's representative (if any). Though the employee has ten days to respond to the request, the carrier is not prohibited from contacting the employee or the employee's representative (if any) by telephone to discuss the request [ with the employee ] and obtain the employee's or the representative's response.

(3) The carrier shall send the request to the Division [ commission ] after either obtaining the employee's answer to the request or when the employee fails to respond after the ten-day period.

[ (e) The commission shall monitor all carrier requests for medical examinations that are requested before the expiration of the 180-day period subsection (b)(1) of this section through statistical analysis, audits, or other appropriate means.]

[ (f) An unreasonable request for an additional medical examination under subsection (b) of this section includes:]

[ (1) a request for an additional examination for a reason which does not comply with this section,]

[ (2) a request for a different doctor without sufficient grounds;]

[ (3) a request which would result in a violation of subsection (b) of this section; and]

[ (4) a request which provides false, incomplete, or misleading information.]

(f) [ (g) ] The carrier shall send a copy of the request for a required medical examination [ order ] required by subsection (e) [ (d) ] of this section to the employee and the employee's representative (if any) by facsimile or electronic transmission if the carrier has been provided with a facsimile number or email address for the recipient, otherwise, the carrier shall send the request by other verifiable means.

(g) [ (h) ] The carrier shall maintain copies of the request for a required medical examination [ order ] and shall also maintain verifiable proof of successful transmission of the information. For these purposes, verifiable proof includes, but is not limited to, a facsimile confirmation sheet, certified mail return receipt, delivery confirmation from the postal or delivery service, or a copy of the electronic submission.

§126.6.[ Order For ] Required Medical Examination.

(a) When a request is made by the insurance carrier (carrier), or the Division [ commission ], for a medical examination, the Division [ commission ] shall determine if an examination should occur [ be ordered ]. The Division [ commission ] shall grant or deny [ issue an order granting or denying ] the request within seven days of the date the request is received by the Division [ commission ]. A copy of the action of the Division [ order ] shall be sent to the injured employee (employee) , the employee's representative (if any), and the carrier. The notice [ order ] shall explain the circumstances under which an employee may experience [ the potential ] loss of benefits and penalty exposure for failing to attend the examination as well as the need to reschedule a missed examination. An agreement between the parties for an examination under §126.5 of this title (relating to Entitlement and Procedure for Requesting Required Medical Examinations) that the carrier has a right to, has the same effect as the action of the Division [ commission's formal order ].

(b) All examinations required under this section [ ordered ] must be scheduled to occur within 30 days after receipt of the notice [ order ], with at least 10 days notice to the employee and the employee's representative (if any). If a scheduling conflict exists, the employee and the doctor shall contact each other. The doctor or the employee who has the scheduling conflict must make contact at least 24 hours prior to the appointment. The 24 -hour [ hours ] requirement will be waived in an emergency situation (such as a death in the immediate family or a medical emergency). The rescheduled examination shall be set for a date within seven days of the originally scheduled examination, unless an extension is agreed upon by the employee and doctor [ granted by the commission's field office ]. In this event, the examining doctor shall notify the carrier and the 10 days notice requirement does not apply to a rescheduled examination.

(c) The employee's treating doctor[ , chosen under the Texas Workers' Compensation Act (the Act), Texas Labor Code, §408.022, ] may be present at an examination scheduled with a doctor selected by the carrier. The employee's treating doctor may observe the conduct of the examination, and may consult with the examining doctor about the course of the employee's treatment. The employee's treating doctor shall not otherwise participate in, impede, or advise the employee not to cooperate with the examination. In initially scheduling the examination, a reasonable attempt shall be made to accommodate the schedule of the treating doctor if the employee wants the treating doctor to attend the examination and the treating doctor is willing to do so. However, once an examination is scheduled based on the treating doctor's availability, the examination shall not be delayed, canceled, or rescheduled due to the treating doctor's scheduling conflicts unless:

(1) - (2) (No change.)

(d) (No change.)

(e) An RME doctor who, selected by the carrier or the Division, conducts an examination regarding the appropriateness of the health care received by the employee, shall complete a medical report that includes objective findings of the examination and an analysis that explains how the medical condition and objective findings lead to the conclusion reached by the doctor. In addition, the RME doctor shall file the report with the insurance carrier by facsimile or electronic transmission, and shall file the report with the employee and the employee's representative (if any) by facsimile or by electronic transmission if the RME doctor has been provided with a facsimile number or email address for the recipient, otherwise, the RME doctor shall send the report by other verifiable means.

(f) [ (e) ] An RME doctor who, subsequent to a designated doctor's examination, determines the employee has reached maximum medical improvement or who assigns an impairment rating, shall complete and file the report as required by §130.1 and §130.3 of this title (relating to Certification of Maximum Medical Improvement and Evaluation of Permanent Impairment and Certification of Maximum Medical Improvement and Evaluation of Permanent Impairment by Doctor Other than the Treating Doctor). Otherwise, the RME doctor shall not certify MMI or assign an impairment rating. If the RME doctor disagrees with the designated doctor's opinion regarding MMI, the RME doctor's report shall explain why the RME doctor believes the designated doctor was mistaken or why the designated doctor's opinion is no longer valid. Other reports shall be completed in the form and manner prescribed by the Division [ according to applicable rules for consultant medical reports as described in §133.104 of this title (relating to Consultant Medical Reports) ] and shall be sent to the carrier, employee, the treating doctor, and Division [ commission ] no later than 10 days after the examination.

(g) [ (f) ] An RME doctor who , subsequent to a designated doctor's examination, determines that the employee can return to work immediately with or without restrictions is required to file a Work Status Report, as described in §129.5 of this title (relating to Work Status Report) within seven days of the date of the examination of the employee. This report shall be filed with the treating doctor and the carrier by facsimile or electronic transmission. In addition, the RME doctor shall file the report with the employee and the employee's representative (if any) by facsimile or by electronic transmission if the RME doctor has been provided with a facsimile number or email address for the recipient, otherwise, the RME doctor shall send the report by other verifiable means.

(h) An RME doctor who, subsequent to a designated doctor's examination, addresses issues other than those listed in subsections (f) and (g) of this section, shall file a report with the Division in the form and manner prescribed by the Division. This report shall be filed with the treating doctor and the carrier by facsimile or electronic transmission. In addition, the RME doctor shall file the report with the employee and the employee's representative (if any) by facsimile or by electronic transmission if the RME doctor has been provided with a facsimile number or email address for the recipient, otherwise, the RME doctor shall send the report by other verifiable means.

(i) [ (g) ] A doctor who conducts an examination solely under the authority of [ an order issued according to ] this rule shall not be considered a designated doctor under the Texas Labor Code[ , ] §408.0041, §408.122 or §408.125. Examinations with a designated doctor are not subject to any limitations under the provisions for RMEs.

(j) [ (h) ] A carrier may suspend temporary income benefits (TIBs) if an employee, without good cause, fails to attend an RME required pursuant to Labor Code §408.0041(f) .

(1) In the absence of a finding by the Division [ commission ] to the contrary, a carrier may presume that the employee did not have good cause to fail to attend the examination if [ : ]

[ (A) ] by the day the examination was originally scheduled to occur the employee has both:

(A) [ (i) ] failed to submit to the examination; and

(B) [ (ii) ] failed to contact the RME doctor's office to reschedule the examination to occur no later than the later of the seventh day after the originally scheduled examination date or the doctor's first available appointment date[ ; or ]

[ (B) after rescheduling the examination as provided in subsection (i)(1)(A)(ii) of this section, the employee failed to submit to the rescheduled examination ].

(2) If, after the carrier suspends TIBs pursuant to this section, the employee submits to the required medical examination, the carrier shall reinitiate temporary income benefits effective as of the date the employee contacted the doctor's office to reschedule the examination [ submitted to the examination ]. The re-initiation shall occur no later than the seventh day following [ the latter of: ]

[ (A) ] the date the carrier was notified that the employee [ had ] attended the examination[ ; or ]

[ (B) the date that the carrier was notified that the commission found that the employee had good cause for not attending the examination].

(3) An employee is not entitled to TIBs for a period during which the carrier was entitled to suspend [ suspended ] benefits pursuant to this section unless the employee later submits to the examination and the Division [ commission ] finds or the carrier determines that the employee had good cause to fail to attend the appointment.

(k) [ (i) ] An employee who, without good cause, fails or refuses to appear at the time scheduled for an examination authorized by this section may be assessed an [ a Class D ] administrative penalty under [ the ] Labor Code §§408.004 and 408.0041 [ Act, 408.004(f) ]. An employee who fails to submit to an examination at the carrier's request when the carrier selected doctor refuses to allow the treating doctor to attend the examination or when the RME doctor cancels the examination does not commit an administrative violation [ and shall not have benefits suspended for failing to attend that particular appointment ].

(l) [ (j) ] The Division [ commission ] shall require [ order ] examinations requiring travel of up to 75 miles from the employee's residence, unless the treating doctor certifies that such travel may be harmful to the employee's recovery. Travel over 75 miles may be authorized if good cause exists to support such travel. The carrier shall pay reasonable travel expenses incurred by the employee in submitting to any required medical examination, as specified in Chapter 134 of this title (relating to Benefits - Guidelines For Medical Service, Charges and Payments) [ by §134.6 of this title (relating to Travel Expenses) ].

§126.7.Designated Doctor Examinations: Requests and General Procedures.

(a) The Division may require a medical examination by a designated doctor at the request of the insurance carrier, an injured employee (employee), the employee's representative (if any), the medical advisor, or on its own motion. A doctor who has contracted with or is employed by an authorized workers' compensation health care network established under Chapter 1305, Insurance Code, (network doctor) may not perform a designated doctor examination, as those terms are used under the Texas Workers' Compensation Act, for an employee receiving medical care through the same network.

(b) The request shall be made in the form and manner prescribed by the Division.

(c) A designated doctor examination shall be used to resolve questions about the following:

(1) the impairment caused by the employee's compensable injury;

(2) the attainment of maximum medical improvement (MMI);

(3) the extent of the employee's compensable injury;

(4) whether the employee's disability is a direct result of the work-related injury;

(5) the ability of the employee to return to work (RTW); or

(6) issues similar to those described by paragraphs (1) - (5) of this subsection.

(d) The report of the designated doctor is given presumptive weight regarding the issue(s) in question and/or dispute, unless the preponderance of the evidence is to the contrary. No action related to income benefits may be taken by the carrier based on the report of the designated doctor that provides a prospective MMI or RTW date.

(e) The Division, within 10 days after approval of a valid request, shall issue a written notice assigning a designated doctor; schedule a designated doctor appointment for a date no earlier than 14 days, but no later than 21 days from the date of the approval; and notify the employee and the insurance carrier that the designated doctor will be directed to examine the employee. The written notice shall:

(1) indicate the designated doctor's name, license number, practice address and telephone number, and the date and time of the examination;

(2) explain the purpose of the designated doctor examination;

(3) require the employee to submit to an examination by the designated doctor on the stated date and time; and

(4) require the treating doctor and insurance carrier to forward all medical records in compliance with subsection (i)(3) of this section.

(f) The designated doctor's office and the employee shall contact each other if there exists a scheduling conflict for the designated doctor appointment. The designated doctor or the employee who has the scheduling conflict must make the contact at least 24 hours prior to the appointment. The 24-hour requirement will be waived in an emergency situation (such as a death in the immediate family or a medical emergency). The rescheduled examination shall be set to occur within 14 days of the originally scheduled examination or, if the doctor is unavailable, on the doctor's next available appointment date. Within 24 hours of rescheduling, the designated doctor shall contact the Division's field office and the insurance carrier with the time and date of the rescheduled examination.

(g) An insurance carrier may suspend temporary income benefits (TIBs) if an employee, without good cause, fails to attend a designated doctor examination.

(1) In the absence of a finding by the Division to the contrary, an insurance carrier may presume that the employee did not have good cause to fail to attend the examination if by the day the examination was originally scheduled to occur the employee has both:

(A) failed to submit to the examination; and

(B) failed to contact the designated doctor's office to reschedule the examination in accordance with subsection (f) of this section.

(2) If, after the insurance carrier suspends TIBs pursuant to this subsection, the employee submits to the designated doctor examination, the insurance carrier shall reinitiate TIBs effective as of the date the employee contacted the doctor's office to reschedule the examination unless the report of the designated doctor indicates that the employee has reached MMI or is otherwise not eligible for income benefits. The re-initiation of TIBs shall occur no later than the seventh day following the date the insurance carrier was notified that the employee attended the examination.

(3) An employee is not entitled to TIBs for a period during which the insurance carrier suspended benefits pursuant to this subsection unless the employee later submits to the examination and the Division finds or the insurance carrier determines that the employee had good cause for failure to attend the examination.

(h) If at the time the request is made, the Division has previously assigned a designated doctor to the claim, the Division shall use that doctor again, if the doctor is still qualified and available. Otherwise, the Division shall select the next available doctor on the Division's Designated Doctor List who:

(1) has not previously treated or examined the employee within the past 12 months and has not examined or treated the employee with regard to a medical condition being evaluated in the designated doctor examination;

(2) does not have any disqualifying associations as described in §180.21 of this title (relating to Division Designated Doctor List); and

(3) has credentials appropriate to the issue in question and the employee's medical condition.

(i) The designated doctor is authorized to receive the employee's confidential medical records to assist in the resolution of a dispute under this section without a signed release from the employee.

(1) The treating doctor and insurance carrier shall provide to the designated doctor copies of all the employee's medical records in their possession relating to the medical condition to be evaluated by the designated doctor.

(2) The treating doctor and insurance carrier may also send the designated doctor an analysis of the employee's medical condition, functional abilities, and return-to-work opportunities. The analysis may include supporting information such as videotaped activities of the employee as well as marked copies of medical records, provided the original record is provided intact and unmarked. If the insurance carrier sends an analysis to the designated doctor, the insurance carrier shall send a copy to the treating doctor, the employee, and the employee's representative (if any). If the treating doctor sends an analysis to the designated doctor, the treating doctor shall send a copy to the insurance carrier, the employee, and the employee's representative (if any).

(3) The treating doctor and insurance carrier shall ensure that the required records and analyses (if any) are sent to the designated doctor no later than the fifth working day prior to the date of the designated doctor examination.

(4) If the designated doctor has not received the medical records or any part thereof at least one working day prior to the examination, the designated doctor shall:

(A) report this violation to the Division's Compliance and Practices section; and

(B) reschedule the examination in accordance with subsection (f) of this section. The doctor shall conduct the rescheduled examination regardless of whether or not the complete medical record has been timely received.

(j) The designated doctor shall review the employee's medical records, including an analysis of the employee's medical condition, functional abilities and return to work opportunities provided by the insurance carrier and treating doctor and shall perform a hands-on examination. The designated doctor shall give the medical records reviewed the weight he/she feels is appropriate.

(k) The designated doctor shall perform additional testing or refer an employee to other health care providers when necessary to determine the issue in question. Any additional testing required for the evaluation is not subject to preauthorization requirements in accordance with the Labor Code §413.014. Any additional testing must be completed within seven working days of the designated doctor's physical examination of the employee. Use of another health care provider under this subsection extends the amount of time the designated doctor has to file the report by seven working days.

(l) To avoid undue influence on the designated doctor:

(1) except as provided by subsection (i) of this section, only the employee or appropriate Division staff may communicate with the designated doctor prior to the examination of the employee by the designated doctor regarding the employee's medical condition or history;

(2) after the examination is completed, communication with the designated doctor regarding the employee's medical condition or history may be made only through appropriate Division staff; and

(3) the designated doctor may initiate communication with any doctor who has previously treated or examined the employee for the work-related injury or with a peer review doctor identified by the insurance carrier who examined the employee's claim.

(m) The insurance carrier, treating doctor, employee, or employee's representative (if any) may contact the designated doctor's office to ask about administrative matters such as whether the designated doctor received the records, whether the exam took place, or whether the report has been filed, or similar matters.

(n) The designated doctor shall complete and file any required report of medical evaluation, along with an appropriate narrative report. The narrative report must include at least the following elements:

(1) a list of records, documents, films, and other information reviewed in reaching the medical opinions rendered;

(2) the date of the examination;

(3) a history of the medical condition or injury;

(4) a summary of the medical care rendered prior to the date of the examination;

(5) objective findings of the examination;

(6) an analysis that explains how the medical condition and objective findings lead to the conclusion reached by the doctor; and

(7) opinion(s) responsive to the questions asked by the Division in the assignment of the examination.

(o) The report of medical evaluation under this section shall be filed by the seventh working day after the latter of:

(1) the date of the examination; or

(2) the receipt of all of the medical information required by this section.

(p) The report of medical evaluation required to be filed under this section shall be filed with:

(1) the insurance carrier by facsimile or electronic transmission;

(2) the Division, in the form and manner prescribed by the Division; and

(3) the employee and the employee's representative, if any, by facsimile or electronic transmission if the doctor has been provided the recipient's facsimile number or email address, or other verifiable means.

(q) The designated doctor shall maintain accurate records, including the employee records, analysis (including supporting information), and narratives provided by the insurance carrier and treating doctor, to reflect:

(1) the date and time of any designated doctor appointments scheduled with an employee;

(2) the circumstances regarding a cancellation, no-show or other situation where the examination did not occur as initially scheduled or rescheduled;

(3) the date of the examination;

(4) the date medical records were received from the treating doctor or any other person or organization;

(5) the date the medical evaluation report, including the narrative report described in subsection (n) of this section, was submitted to all parties;

(6) the name of all referral health care providers, date of appointments and reason for referral by the designated doctor; and

(7) the date the doctor contacted the Division for assistance in obtaining medical records from the insurance carrier or treating doctor.

(r) The insurance carrier shall pay any accrued income benefits, and shall begin or continue to pay weekly income benefits, in accordance with the designated doctor's report for the issue(s) in dispute, no later than five days after receipt of the report or five days after receipt of notice from the Division, whichever is earlier.

(s) The insurance carrier, the employee, and the employee's representative (if any) is not entitled to a subsequent designated doctor examination until the earlier of:

(1) the 60th day after the prior designated doctor examination was held; or

(2) the date the insurance carrier or the employee is found by the Division to have good cause, such as the inclusion of additional body parts (extent of injury).

(t) On or after the second anniversary of the initial award of Supplemental Income Benefits (SIBs), the insurance carrier may not require an employee who is receiving SIBs to submit to a designated doctor examination more than annually, if in the preceding year, the employee's medical condition resulting from the compensable injury has not improved sufficiently to allow the employee to return to work.

(u) If the designated doctor is asked to determine the ability of the employee to return to work, and determines that the employee is not able to return to work immediately, but the prospective date of the employee's ability to return to work is within 60 days after the examination, the designated doctor shall schedule a second examination on or after such prospective RTW date without further action of the Division. This procedure may only be used to schedule one additional examination. The designated doctor will issue any appropriate reports after the first examination and will notify the Division's field office and the insurance carrier within 24 hours, setting out the date and time of the second examination.

(v) If the designated doctor is asked to determine MMI date, and determines that the employee was not at MMI, but the prospective date is within 60 days after the examination, the designated doctor shall schedule a second examination on or after such prospective MMI date without further action of the Division. This procedure may only be used to schedule one additional examination. The designated doctor will issue any appropriate reports after the first examination and will notify the Division's field office and the insurance carrier within 24 hours, setting out the date and time of the second examination.

(w) Parties may file a request with the Division for clarification of the designated doctor's report. A copy of the request must be provided to the opposing party. The Division may contact the designated doctor if it determines that clarification is necessary to resolve an issue regarding the designated doctor's report. The Division, at its discretion, may request clarification from the designated doctor on issues the Division deems appropriate. If, in order to respond to the request for clarification, the designated doctor has to reexamine the injured employee, the doctor shall:

(1) make him/herself available to conduct the reexamination within 10 working days of receiving the request (even if it means traveling back to the location of the original examination); and

(2) respond to a request for clarification within five working days of receipt and shall provide copies of the response to the parties specified in subsection (p) of this section.

(x) Upon receipt of a request for a benefit review conference, the Division shall resolve a dispute of the opinion of a designated doctor through the dispute resolution processes outlined in Chapters 140 - 147 of this title (relating to Dispute Resolution).

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 January 23, 2006.

TRD-200600351

Norma Garcia

General Counsel

Texas Department of Insurance, Division of Workers' Compensation

Earliest possible date of adoption: March 5, 2006

For further information, please call: (512) 804-4288

28 TAC §126.7

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Insurance, Division of Workers' Compensation or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Texas Department of Insurance, Division of Workers' Compensation proposes repeal of §126.7 concerning suspension of temporary income benefits based on the opinion of a carrier-selected required medical examination doctor. The repeal is necessary to implement changes to the Labor Code §408.004 as a result of House Bill (HB) 7, enacted by the 79th Legislature, Regular Session, effective September 1, 2005.

HB 7 changed the Labor Code §408.004 by limiting the reasons an injured employee (employee) may be required to attend a required medical examination prior to a designated doctor examination to the issue of appropriateness of the health care received by the employee. HB 7 also removed the provision for the suspension of temporary income benefits for failure to attend the required medical examination on that issue. HB 7 also changed §408.0041 to provide the designated doctor's opinion presumptive weight regarding entitlement and payment of income benefits, and to address the suspension of temporary income benefits only for failure to attend a required medical exam after a designated doctor exam. These statutory changes provide procedural guidance to suspend benefits based on the opinion of the designated doctor or the actions (failure to attend) of the employee, rather than on a report or opinion of a required medical examination doctor. Section 126.7 as written is no longer applicable since there are no situations in which temporary income benefits may be suspended based on the opinion of the required medical examination doctor.

The Divison simultaneously proposes amendments to §§126.5 and 126.6, and new §126.7 regarding required medical exams and designated doctor exams which are published elsewhere in this issue of the Texas Register . Proposed amendments to §126.5 provide clarification regarding the reasons and timeframes for which an RME may be requested and granted. Proposed amendments to §126.6 provide clarification regarding rescheduling appointments when there is a scheduling conflict, filing of reports by the RME doctor, suspension and reinstatement of temporary income benefits when the injured employee fails to attend, without good cause, a required medical exam or a designated doctor exam. Proposed §126.7 provides procedural guidance regarding the request for, and selection of, a designated doctor. The new section also provides procedural guidance regarding the responsibilities of the designated doctor.

Brent Hatch, Director, Central Claims Management and Customer Services, has determined that for each year of the first five years the proposed repeal is in effect, there will be no fiscal impact to state and local governments as a result of the repeal. There will be no measurable effect on local employment or the local economy as a result of the proposed repeal.

Mr. Hatch has also determined that for each year of the first five years the proposed repeal is in effect the public benefits anticipated as a result of the repeal will be compliance with and implementation of legislative directives and consistency in the rules under which all Texas Workers' Compensation system participants function.

The anticipated benefit to the employee and insurance carrier are more clearly delineated situations in which the insurance carrier may suspend payment of temporary income benefits. Employers should benefit to the extent that the reductions in costs may translate to savings in premiums, and from timely return to work of employees. There are no anticipated costs as a result of the proposed repeal.

To be considered, written comments on the proposal must be submitted no later than 5:00 p.m. on March 6, 2006 to Norma Garcia, General Counsel, MS-4D, Division of Workers' Compensation, Texas Department of Insurance, 7551 Metro Center Drive, Suite 100, Austin, Texas 78744. An additional copy of the comment must be simultaneously submitted to Brent Hatch, Director of Central Claims Management and Customer Services, MS-600, Division of Workers' Compensation, Texas Department of Insurance, 7551 Metro Center Drive, Suite 100, Austin, Texas 78744. A request for a public hearing should be submitted separately to the General Counsel.

The repeal is proposed under Labor Code §§408.004, 402.00111 and 402.061. Section 408.004 provides the authority to require an employee to attend a required medical exam. Section 402.00111 provides that the Commissioner of Workers' Compensation shall exercise all executive authority, including rulemaking authority, under the Labor Code and other laws of this State. Section 402.061 provides the Commissioner the authority to adopt rules as necessary to implement and enforce the Texas Workers' Compensation Act.

The following section is affected by this proposal: Statute Labor Code §408.004

§126.7.Suspension of Temporary Income Benefits Based On the Opinion of a Carrier-Selected Required Medical Examination Doctor.

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 January 23, 2006.

TRD-200600349

Norma Garcia

General Counsel

Texas Department of Insurance, Division of Workers' Compensation

Earliest possible date of adoption: March 5, 2006

For further information, please call: (512) 804-4288

28 TAC §126.14

The Texas Department of Insurance, Division of Workers' Compensation proposes new §126.14, regarding a medical examination by the treating doctor to define the compensable injury. The section is necessary as a result of House Bill 7, 79th Legislature, Regular Session, effective September 1, 2005, which established Labor Code §408.0042 for the purpose of identifying an injured employee's compensable injury. Labor Code §408.0042 requires the injured employee to attend one examination per claim with the injured employee's treating doctor at the request of the insurance carrier. This examination is a voluntary option for insurance carriers to utilize as a tool in managing claims. The examination's purpose is to have the injured employee's treating doctor identify the specific injuries that were caused or aggravated by the work-related incident or activities. The insurance carrier will make a determination on whether the injuries and diagnoses identified are accepted as part of the compensable injury.

The Division anticipates that the report from this examination will not likely be the first medical record the insurance carrier receives. The treating doctor will provide the medical records from treatment and work activity capability reports on a regular basis. The doctor is required to indicate the injuries and diagnoses being treated on these other reports and in billing records. As such, the insurance carrier should already be aware of the injuries sustained and be taking steps, in addition to this examination, to address those conditions for which it has concerns.

Pursuant to Labor Code §408.0042(g), this examination does not affect either the injured employee or insurance carrier's ability to request required medical examinations or designated doctor examinations. The insurance carrier may obtain a peer review or request a required medical examination or designated doctor examination to seek additional clarification on the injured employee's injuries in lieu of, or in addition to, this treating doctor examination. This examination does not affect the treating doctor's office visits for the purpose of treatment of diagnoses accepted by the insurance carrier.

Proposed subsection (a) relates to the scheduling of the examination. An insurance carrier electing to utilize this provision must contact the treating doctor and schedule an appointment for the injured employee. To provide the injured employee sufficient notice of the upcoming appointment, the examination should not be scheduled for a date earlier than 15 days from the date the request is sent, and the examination should be scheduled to take place on or before the 30th day after the request is sent. The Division has established a requirement that the examination may not be requested prior to the eighth day after the date of injury. This day was selected because it is the accrual date for indemnity in claims that begin experiencing lost time immediately following an on-the-job injury.

Proposed subsection (b) states the insurance carrier is responsible for ensuring it identifies the correct doctor with which to schedule the examination; therefore it is critical that the insurance carrier verify a doctor's role with the injured employee, the injured employee's Network or the Division prior to scheduling the examination. The examination shall be delayed until the correct doctor is identified should the injured employee indicate the doctor named on the notice is not the treating doctor. If an examination occurs and it is later determined that the doctor was not the treating doctor of record, the insurance carrier will still be liable for reimbursement of the examination and testing, but the results of this examination may not be used for the purpose of defining the compensable injury. An administrative penalty may also be assessed against the carrier for failure to confirm the correct treating doctor before scheduling the examination.

The injured employee should not attempt to change treating doctors after being informed the insurance carrier has scheduled this examination. If a change does occur, the timing of the doctor change will impact how the results of the examination will be considered. If a doctor change is requested prior to the examination request, the results of the examination from the previous treating doctor may not be used to define the compensable injury. The insurance carrier may make a new request for an examination with the correct doctor. If the doctor change is requested after the examination request, the examination results will be valid because the results came from the treating doctor at the time the request was made.

Proposed subsection (g) addresses reporting by the treating doctor. Once the insurance carrier has scheduled the appointment, the treating doctor is required to perform the examination for the purpose of identifying all components of the compensable injury. The doctor is required to report specific diagnoses and to not leave any related diagnoses unreported, even if a condition is not being treated at the time of the examination. Any injury or diagnosis identified by the doctor that is not related to the compensable injury should not be included in the list of compensable injuries and diagnoses in this report. Non-related findings by the treating doctor may be included in the narrative section or in a separate medical report. The narrative section, used to give a brief discussion of the objective findings and how the diagnoses are related to the incident or activities that caused the work related injury or may have been precipitated or aggravated by the incident or activities causing the work related injury, is required for the report to be considered complete and valid.

The treating doctor is required to confirm any injury or diagnosis that may have occurred as a result of the work related incident or activities. The doctor shall not indicate that the injury cannot be diagnosed at the time of the examination, thereby deferring the compensable injury's definition. Should it be necessary to obtain diagnostic testing to rule out or confirm any diagnoses, the doctor shall refer the injured employee. A list of the required tests and the rationale for necessity must be clearly documented in the report's narrative to justify the additional filing days and any reimbursement. The concern about the potential number of early diagnostic tests is a matter the insurance carrier must evaluate before requesting a treating doctor examination to define the compensable injury based on the particular circumstances of the claim. If the insurance carrier requests the examination very early in the claim, it risks having a larger number of tests performed than would be necessary if the examination were to occur later in treatment when some of the possible diagnoses would have been ruled-out clinically. Doctors will also need to weigh the potential emotional effect multiple tests could have on an injured employee's recovery, especially early in the injury. Insurance carriers that are concerned about diagnostic testing not requiring preauthorization by rule should note that initial diagnostic testing generally does not required preauthorization.

Subject to waiver of a contest of compensability for failing to dispute the injury within 60 days pursuant to Labor Code §409.021 and §409.022, if the insurance carrier determines that a specific diagnosis is not related while the insurance carrier is reviewing the case and medical documentation during the course of claim management, this condition may be disputed using a plain language notice, PLN-1 or PLN-11, without utilizing this examination.

Proposed subsection (h) addresses the reimbursement rate for this examination. The reimbursement is $350, equivalent to the reimbursement for a required medical examination. Participants felt that because this examination is for administrative purposes that require additional documentation and its results have significant bearing on the claim, it is deserving of a higher reimbursement than for treatment examinations. Testing necessary to define the compensable injury shall be reimbursed in accordance with the Medical Fee Guideline §134.202. Testing required to confirm or rule out a diagnosis is not subject to retrospective review for the issue of compensability if the tests were documented on the treating doctor's report with a rationale for their performance in defining the injury.

Proposed subsection (i) explains the insurance carrier's responsibilities when it has received notice that the treating doctor has submitted the findings from the examination on TXCOMP. After the doctor has submitted his findings online, the Division will notify the insurance carrier electronically that the report has been filed and the need for the insurance carrier to respond to those findings. The insurance carrier is required to indicate either acceptance or denial of each diagnosis listed by the treating doctor to avoid any future confusion regarding whether conditions were accepted or not.

If the insurance carrier chooses to deny only specific injuries without any additional liability issues, its online response to the treating doctor report is considered an extent of injury denial and will be a substitute for the PLN-11. The insurance carrier's narrative section shall comply with the requirements of §124.2.

Proposed subsection (k) requires preauthorization prior to treatment for a specific diagnosis if the insurance carrier disputes the relatedness of any specific diagnosis identified in the treating doctor examination. Labor Code §408.0042 links the preauthorization requirement to the diagnoses identified in the treating doctor examination report and specifically denied by the insurance carrier. This section will apply differently from network to network due to each network's preauthorization requirements.

Proposed subsections (j) and (l) address dispute resolution to adjudicate extent of injury issues identified when the insurance carrier denies specific diagnoses. An injured employee may initiate dispute resolution by requesting a Benefit Review Conference (BRC) before preauthorization has been denied, as it is likely the injured employee will be advised of the refusal of benefits before preauthorization is sought. The authority to initiate dispute resolution at this point derives from Labor Code §409.0021(a) that states if the insurance carrier refuses to pay benefits it must advise the employee of the right to request a BRC and how to obtain additional information. A benefit is defined in Labor Code §401.011 as medical, income, or death benefits.

The healthcare provider's authority to pursue extent of injury and initiate dispute resolution does not occur until treatment has been rendered and reimbursement denied, as established by Labor Code §409.009, or when the provision of Labor Code §408.0042(d), allowing a healthcare provider to seek dispute resolution after preauthorization has been denied, is met.

Proposed subsection (m) addresses the review of treatment for those injuries accepted as part of the compensable injury after the treating doctor has defined the injury. While §408.0042 does not allow the insurance carrier to reopen the issue of compensability of any diagnosis accepted as a result of this examination for the purposes of medical treatment review, other Labor Code provisions indicate rare circumstances where an insurance carrier may reopen the issue of compensability, ultimately affecting an insurance carrier's liability for treatment.

Once the examination has been performed and the injury is defined, any new diagnoses that arise in the future will be handled as extent of injury issues, which require an insurance carrier to file a PLN-11, and follow that process pursuant to applicable statutory and rule provisions. The doctor shall not withhold any diagnosis identifiable at the time of the examination from the report in order to change the way treatment may be handled.

The process for defining the compensable injury under Labor Code §408.0042 and this rule does not change the insurance carrier's contest/denial requirements under Labor Code §409.021, §409.022, and applicable rules. An insurance carrier waives the right to contest compensability of a claim if it does not file its contest/denial with the Division within 60 days after receiving written notice of the claim under §409.021, §409.022, and applicable rules. An insurance carrier cannot remove as part of the compensable injury those injuries and diagnoses that become established as part of the compensable injury by the carrier's failure to contest compensability of the claim under §409.021 and §409.022. The insurance carrier retains the right to dispute any findings from the report that were not identifiable within the 60-day waiver period.

The Division is developing an online reporting system in TXCOMP. At each phase of the process, the appropriate participant will log into TXCOMP to input the required information. The Division will send out a final summary consisting of the treating doctor's findings and the insurance carrier's response to the injured employee, the injured employee's representative (if any), the treating doctor, and the insurance carrier. The information at each stage of the process will be accessible online to those with appropriate TXCOMP access and will be maintained as part of the historical record of the claim.

Heidi Jackson, Director, Claims Services, has determined that for each year of the first five years the proposed section will be in effect, there will be no fiscal impact to state and local governments as a result of the enforcement or administration of the section. There will be no measurable effect on local employment or the local economy as a result of the proposal.

Ms. Jackson has determined that for each year of the first five years the section is in effect, the public benefits anticipated as a result of the proposed section will be that when the examination is requested by the insurance carrier, the injured employee is likely to have an earlier and concrete notice of the insurance carrier's acceptance or denial of an injured employee's compensable injury. The costs to an injured employee will be the costs associated with attending the examination, such as transportation costs. The costs to insurance carriers depends on the frequency the carrier requests an examination with a treating doctor. Each time a carrier requests an examination to define the compensable injury, the carrier will incur the $350 treating doctor fee and the costs associated with any necessary diagnostic testing to define the compensable injury. Carriers may also incur administrative costs for someone to coordinate with the treating doctor in scheduling the examination and reviewing the treating doctor's report via TXCOMP. Carriers will also realize a cost for providing the notice of the examination to the injured employee. Carriers may ultimately realize a positive financial impact by utilizing this provision to define the compensable injury to resolve older, problematic claims. Carriers may also benefit from receiving: earlier notice of the injury, more information on the compensable injury, and ultimately more information on their liability. When carriers request this examination, the treating doctor will realize the $350 examination fee and health care providers will have more certainty that treatment rendered will be paid because the insurance carrier has identified in advance those conditions that are compensable. Health care providers may incur additional administrative costs in coordinating with carriers in scheduling this examination. Health care providers may incur additional administrative costs in data entry of the treating doctor's report via TXCOMP. The treating doctor fee has been increased to $350 in anticipation and to help offset this cost. Any additional economic costs currently exist under existing rules or result from the enactment of HB 7 and are not a result of the adoption, enforcement, or administration of the proposed sections. There will be no difference in the cost of compliance between a large and small business as a result of the proposed sections. Based upon the cost of labor per hour, there is no disproportionate economic impact on small or micro businesses. Even if the proposed sections would have an adverse effect on small or micro businesses, it is neither legal nor feasible to waive the provisions of the proposed sections for small or micro businesses because the Labor Code requires equal application of these provisions to all affected individuals. However, since it is within the carrier's discretion as to whether or not to request this examination, the carrier is able to decide when and whether it is appropriate to request the examination.

To be considered, written comments on the proposal must be submitted no later than 5:00 p.m. on March 6, 2006 to Norma Garcia, General Counsel, Mail Stop 4D, Division of Workers' Compensation, Texas Department of Insurance, 7551 Metro Center Drive, Suite 100, Austin, Texas 78744. An additional copy of the comment must be simultaneously submitted to Heidi Jackson, Director, Claims Services, Mail Stop 30, Division of Workers' Compensation, Texas Department of Insurance, 7551 Metro Center Drive, Suite 100, Austin, Texas 78744. A request for a public hearing should be submitted separately to the General Counsel.

The new section is proposed pursuant to Labor Code §§408.0042, 402.00111, and 402.061. Section 408.0042 requires the Division to have an injured employee submit to a single treating doctor examination on request of an insurance carrier. Section 402.00111 provides that the Commissioner of Workers' Compensation shall exercise all executive authority, including rulemaking authority, under the Labor Code and other laws of the State. Section 402.061 provides the Commissioner the authority to adopt rules as necessary to implement and enforce the Texas Workers' Compensation Act.

The following sections are affected by this proposal: Statute Texas Labor Code §§409.021, 409.022, and 408.0042.

§126.14.Treating Doctor Examination to Define the Compensable Injury.

(a) On request of the insurance carrier, an injured employee is required to submit to a single examination per claim for the purpose of defining the compensable injury. The examination:

(1) shall not be requested prior to the eighth day after the date of injury, and

(2) shall be scheduled to occur no earlier than 15 days and no later than 30 days from the date the notice is sent to the injured employee.

(b) The insurance carrier shall verify the injured employee's treating doctor prior to scheduling the examination.

(1) Failure to verify an injured employee's treating doctor or failure to notify the Division in writing of a correction regarding the identity of the injured employee's correct treating doctor shall result in an administrative violation. An insurance carrier that schedules the examination with a doctor other than the injured employee's treating doctor shall be liable for reimbursement of the examination and testing. The results of the improper examination shall not be used for the purpose of defining the injury.

(2) If a request to change treating doctor has been filed by the injured employee, the insurance carrier shall not request this examination until after the treating doctor change has been processed.

(c) The insurance carrier shall send the injured employee a notice of appointment, which at a minimum shall include:

(1) general information identifying the claim;

(2) the name of the treating doctor;

(3) the date, time, and the location of the scheduled examination with the treating doctor named; and

(4) the following statements in a bold font equal to the font size in the main body of the notice:

(A) The insurance carrier may request that you, the injured employee, attend a single examination per claim for the sole purpose of defining the compensable injuries that resulted from the work-related incident or activities.

(B) The law requires this examination be scheduled with your treating doctor. If the doctor named in this notice is not your treating doctor, immediately contact the insurance carrier or the Texas Department of Insurance, Division of Workers' Compensation. You are not required to attend the examination until the correct treating doctor has been identified and the insurance carrier reschedules the appointment with the correct doctor.

(C) You, the injured employee, are responsible for contacting your doctor to reschedule the appointment if you have a conflict with the date and time that has been scheduled for you. If you fail to attend the examination at the time scheduled/rescheduled without good cause, an administrative penalty may be assessed.

(d) Required information for the notice shall be entered online into TXCOMP. The final summary screen shall be printed as the notice of appointment. A copy of the notice shall be sent to the injured employee, the injured employee's representative (if any), and the Division. The notice shall be provided to the injured employee no later than 10 days prior to the examination.

(e) If a scheduling conflict exists, the injured employee shall immediately contact the treating doctor to reschedule the appointment. The appointment must be rescheduled to take place within seven working days of the original appointment.

(f) An injured employee who fails or refuses to appear at the time scheduled for an examination may be assessed an administrative penalty unless good cause exists for such failure. An injured employee who fails to submit to an examination at the insurance carrier's request does not commit an administrative violation if the doctor named on the notice is not the injured employee's treating doctor.

(g) The treating doctor, after conducting the examination, shall submit a report online via TXCOMP no later than 10 days after the conclusion of the examination. To be considered a complete and valid report, the report must contain, at a minimum, general information that identifies the claim; a description of the mechanism of injury; a list of diagnostic testing performed, with the documented rationale for necessity; and specific, confirmed diagnoses that the doctor considers to be related to the compensable injury along with an explanation of how each diagnosis is related. Should additional testing be required to establish a diagnosis:

(1) the filing of the treating doctor's report is extended seven days after the testing is completed to allow for receipt and review of the reports from outside testing sources; and

(2) the testing necessary to define the compensable injury shall be performed no later than 10 working days after the examination and is not subject to preauthorization requirements.

(h) A treating doctor may bill, and the carrier shall reimburse for an examination required under this section. Treating doctors shall bill for the examination using the Healthcare Common Procedure Coding System (HCPCS) Level I code, Evaluation and Management Section, for work-related or medical disability evaluation services performed by a treating physician. A Division modifier of "TX" shall be added to the Level I code. Doctors are not required to submit a copy of the report with the bill if the report was previously provided to the carrier. Reimbursement for the examination shall be $350. Reimbursement for the report is included in the examination fee. Testing necessary to define the compensable injury shall be billed using the appropriate billing codes and reimbursed, in addition to the examination fee, in accordance with §134.202 of this title (relating to Medical Fee Guideline). Reimbursement for testing shall only be retrospectively reviewed on a medical necessity or fee basis.

(i) An insurance carrier shall indicate the injuries and diagnoses identified in the treating doctor's report that are being accepted or disputed within the later of 60 days of the date written notice of the injury is received or within 10 working days of receipt of the treating doctor's report. The insurance carrier will accept or deny the injuries and diagnoses identified in this examination online via TXCOMP. Any notification of denial must include a plain language statement, pursuant to §124.2 of this title (related to Carrier Reporting and Notification Requirements), explaining the insurance carrier's rational for denial.

(1) In addition to the injuries and diagnoses accepted by the insurance carrier as a result of this examination, the compensable injury includes all injuries, diagnoses, symptoms and conditions that could have been reasonably discovered in an investigation by the insurance carrier prior to the expiration of the 60-day waiver period and not denied as required under Labor Code §409.021, §409.022, and applicable Division rules. The insurance carrier may not use this examination to dispute the compensable injury that was defined by the 60-day waiver period.

(2) The insurance carrier shall not deny reimbursement for treatment of any diagnosis listed in the treating doctor's report on the basis of compensability or relatedness in the time between receipt of the doctor's findings and the filing of its denial of the specific diagnosis, until a compensability denial, submitted in accordance with §124.2 of this title, is submitted to the Division and the treating doctor.

(j) The injured employee may initiate a request for a benefit review conference in accordance with Labor Code §410.023(a) and §141.1 of this title (relating to Requesting and Setting a Benefit Review Conference) upon receiving a denial regarding specific injuries or diagnoses.

(k) If the insurance carrier denies an injury or diagnosis identified in this examination, treatment for that injury or diagnosis must be preauthorized prior to treatment occurring, except as provided under Chapter 1305, Insurance Code and applicable Texas Department of Insurance rules. For the treating doctor, the insurance carrier's denial is effective on the date the notice of denial is received by that doctor.

(l) A health care provider may request a benefit review conference, in accordance with §141.1 of this title, to address an extent of injury question if:

(1) a request for preauthorization under this section has been denied;

(2) the injured employee is not pursuing the claim; and

(3) an agreement, filed in accordance with §147.4 of this title (relating to Filing Agreements with the Commission, Effective Dates) has not been entered into by the insurance carrier and injured employee establishing insurance carrier's liability on the disputed issues.

(m) Once the treating doctor has defined the compensable injury and the insurance carrier has accepted injuries or diagnoses as related, the insurance carrier shall not review treatment of the accepted injuries and diagnoses for compensability.

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 January 23, 2006.

TRD-200600346

Norma Garcia

General Counsel

Texas Department of Insurance, Division of Workers' Compensation

Earliest possible date of adoption: March 5, 2006

For further information, please call: (512) 804-4288

Chapter 130. IMPAIRMENT AND SUPPLEMENTAL INCOME BENEFITS

Subchapter A. IMPAIRMENT INCOME BENEFITS

28 TAC §130.2, §130.6

The Texas Department of Insurance, Division of Workers' Compensation, proposes amendments to §130.2 and §130.6 concerning certification of maximum medical improvement (MMI) and designated doctor examinations for MMI. The proposed amendments are necessary to implement changes to the Labor Code §§408.123 and 408.0041 as a result of House Bill (HB) 7, enacted by the 79th Legislature, Regular Session, effective September 1, 2005.

HB 7 changed the Labor Code §408.123 to require the treating doctor to provide information to the injured employee (employee) on how to dispute a certification of maximum medical improvement and the assignment of an impairment rating. The proposed amendments to §130.2 set forth the process for the treating doctor to provide the notification to the employee. Given that these certifications can occur in both network and non-network settings, this additional notification ensures that the employee is provided accurate information to resolve any potential disputes as soon as reasonably possible. In the event that the doctor does not make the certification during the examination, usually due to the need for additional testing or review of the medical records, this notice will be provided to the employee along with the Report of Medical Evaluation through the processes outlined in §130.1.

The proposed amendments to §130.6 address changes made to the Labor Code §408.0041. The proposed amendments to §130.6 delete the procedures set forth in subsections (a) - (c) and (h) - (k) since these have been moved, with modifications as appropriate, to proposed new §126.7 which is published elsewhere in this issue of the Texas Register . New §126.7 addresses designated doctor exams in general. The proposed amendments to subsection (b) require a designated doctor, who determines the employee has not reached maximum medical improvement (MMI) and issues a prospective date of MMI that is less than 60 days from the date of the exam, to reschedule the exam on or after the prospective date of MMI without any action of the Division. The designated doctor is limited to one rescheduled exam. The doctor is also required to notify the Division and the insurance carrier of the rescheduled exam. The proposed amendments to subsection (f) provide that when the designated doctor issues multiple impairment ratings due to an unresolved dispute over the extent of the employee's compensable injury, the carrier shall pay benefits based on the conditions that have been accepted by the carrier or have been finally adjudicated by the Division to be part of the compensable injury. The Division has made changes throughout the proposal to reflect language changes of "commission" to "Commissioner" or "Division" as appropriate. The Division has proposed for repeal §§126.7, 130.5 and 130.110 which are published elsewhere in this issue of the Texas Register .

Brent Hatch, Director, Central Claims Management and Customer Services, has determined that for the first five-years the proposed sections will be in effect, there will be no fiscal impact to state and local governments as a result of the enforcement or administration of the sections. There will be no measurable effect on local employment or the local economy as a result of the proposal.

Mr. Hatch has also determined that for each year of the first five years the proposed sections are in effect the public benefits anticipated as a result of enforcing the sections will be compliance with and implementation of legislative directives and consistency in the rules under which all Texas Workers' Compensation System participants function.

The anticipated benefit to employees will be the consistent manner in which designated doctor exams are to be conducted. Additionally, with automatic rescheduling of designated doctor exams when a prospective date of MMI or return-to-work is issued, the employee will be able to obtain access to the designated doctor easier and faster in an effort to resolve benefit related issues. The employee should benefit due to the early notice of a determination of MMI/IR and the knowledge that he or she may dispute the rating. It is anticipated that employees will experience no additional costs.

The benefit to insurance carriers will be quicker resolution of disputes, which should reduce the potential for overpayments, thus reducing costs. In addition, the companion changes being made to Chapters 180 and 130 regarding training of designated doctors, certification of MMI/assignment of impairment ratings, and easier access to designated doctors should reduce costs through fewer examinations and fewer disputes.

Employers should benefit to the extent that the reductions in costs may translate to savings in premiums, and from timely return to work of employees.

Health care providers should benefit from the clarification in the rules. They may experience increased training costs associated with these proposed rules and the Chapter 180 rules concurrently proposed. Training costs are estimated to be approximately $500 to attend the initial required designated doctor training and testing. The bi-annual training costs are also estimated to be approximately $500. While the new provision in §130.2 places an additional administrative requirement on the treating doctor, the information required in the notice to the employee is structured in a manner to minimize costs and other impacts to the health care provider. Depending on their individual office practices and the volume of workers' compensation patients, the doctor's office could mass-produce this notice for easy distribution at a minimal cost impact. It is anticipated that this extra expense would be no more that $.50 - $1.00 per employee certification based on the cost of the paper/copier supplies and staff time to fill out the notice.

Any additional economic costs currently exist under existing rules or result from the enactment of HB 7 and are not a result of the adoption, enforcement, or administration of the proposed sections. There will be no difference in the cost of compliance between a large and small business as a result of the proposed sections. Based upon the cost of labor per hour, there is no disproportionate economic impact on small or micro businesses. Even if the proposed sections would have an adverse effect on small or micro businesses, it is neither legal nor feasible to waive the provisions of the proposed sections for small or micro businesses because all employees need to receive the required notification and the Labor Code requires equal application of these provisions to all affected individuals.

To be considered, written comments on the proposal must be submitted no later than 5:00 p.m. on March 6, 2006 to Norma Garcia, General Counsel, MS-4D, Division of Workers' Compensation, Texas Department of Insurance, 7551 Metro Center Drive, Suite 100, Austin, Texas 78744. An additional copy of the comment must be simultaneously submitted to Brent Hatch, Director, Central Claims Management and Customer Services, MS-600, Division of Workers' Compensation, Texas Department of Insurance, 7551 Metro Center Drive, Suite 100, Austin, Texas 78744. A request for a public hearing should be submitted separately to the General Counsel.

The amendments are proposed under the Labor Code §§408.0041, 402.061, and 402.00111. Section 408.0041 provides for designated doctor examinations. Section 402.061 requires the Commissioner to adopt rules necessary for the implementation and enforcement of the Texas Workers Compensation Act. Section 402.00111 provides that the Commissioner of Workers' Compensation shall exercise all executive authority, including rulemaking authority, under the Labor Code and other laws of this State.

The following statute is affected by this proposal: Statute Labor Code §408.0041

§130.2.Certification of Maximum Medical Improvement and Evaluation of Permanent Impairment by the Treating Doctor.

(a) A treating doctor shall either examine the injured employee (employee) and determine if the employee has any permanent impairment as a result of the compensable injury as soon as the doctor anticipates that the employee will have no further material recovery from or lasting improvement to the work-related injury or illness, based on reasonable medical probability, or have another authorized doctor do so.

(1) - (2) (No change.)

(3) At the conclusion of an examination in which the treating doctor, or the certifying doctor in the event that the treating doctor is not authorized to certify MMI and assign an impairment rating, determines that the employee has reached maximum medical improvement and assigns an impairment rating, the doctor shall provide the employee with a written notice that the certification may be disputed. If, based upon the need for additional testing or review of medical documentation, the date of MMI and the impairment rating are not determined and assigned during the examination, the notice shall be sent with the Report of Medical Evaluation provided in accordance with §130.1 of this title. The notice shall include the following information:

(A) the date of maximum medical improvement;

(B) the assigned impairment rating;

(C) a statement that if the employee disagrees with the certification, they may dispute the certification by contacting the Division of Workers' Compensation;

(D) the address and phone number of the local field office of the Division of Workers' Compensation; and

(E) a statement that the employee may contact the Division for more information at 1 (800) 252-7031.

(b) A certification of MMI and assignment of an impairment rating shall be performed and reported in accordance with the requirements of §130.1 of this title.

(c) The Division [ commission ] shall mail a notice to a treating doctor on the expiration of 98 weeks from the date the employee's TIBs began to accrue if the employee is still receiving TIBS. The Division's [ commission's ] notice shall advise the treating doctor of the requirements under Chapter [ chapter ] 408, Subchapter G of the Texas Workers' Compensation Act, and of this rule, and require that an impairment rating report be mailed to the Division [ commission ]no later than 104 weeks from the date temporary income benefits began to accrue. A copy of the notice shall be sent to the employee as well.

(d) Upon receipt of the Division's [ commission's ] notice required in subsection (c) of this section, the treating doctor shall schedule and conduct an examination of the employee in accordance with §130.1 of this title to certify a MMI date (if earlier than the statutory MMI date as defined in §130.4 of this title (relating to Presumption that Maximum Medical Improvement (MMI) has been Reached and Resolution when MMI has not been Certified) and to assign an impairment rating. A treating doctor who is not authorized to certify MMI and assign impairment ratings, shall make a referral to a doctor who is authorized to do so on behalf of the treating doctor.

(e) If the carrier has not received a report of medical evaluation by the date of statutory MMI:

(1) (No change.)

(2) the carrier or the employee may request the appointment of a designated doctor under §126.7 [ §130.5 ] of this title (relating to Designated Doctor Examinations: Requests and General Procedures [ Entitlement and Procedure for Requesting Designated Doctor Examinations related to Maximum Medical Improvement and Impairment Rating ]); and/or

(3) (No change.)

§130.6.Designated Doctor Examinations for Maximum Medical Improvement and/or Impairment Ratings.

(a) [ A designated doctor examination for maximum medical improvement (MMI) and/or permanent whole body impairment shall be conducted in accordance with this section. ]

[ (1) ] Any evaluation relating to either maximum medical improvement (MMI) [ MMI ], an impairment rating or both shall be conducted in accordance with §130.1 of this title [ section ] (relating to Certification of Maximum Medical Improvement and Evaluation of Permanent Impairment).

[ (2) The opinion of the designated doctor is given presumptive weight regarding MMI and impairment but only on the issue(s) in question or dispute. If the report contains the doctor's opinion regarding other issues (even those the commission has requested the doctor to consider), that portion of the opinion does not have presumptive weight.]

[ (b) The designated doctor and the injured employee shall contact each other if there exists a scheduling conflict for the designated doctor appointment. The designated doctor or the injured employee who has the scheduling conflict must make the contact at least 24 hours prior to the appointment. The 24-hour requirement will be waived in an emergency situation (such as a death in the immediate family or a medical emergency). The rescheduled examination shall be set for a date within fourteen days of the originally scheduled examination unless an extension is granted by the commission's field office. Within 24 hours of rescheduling, the designated doctor shall contact the commission's field office and the insurance carrier with the time and date of the rescheduled examination.]

[ (c) An insurance carrier may suspend temporary income benefits (TIBs) if an injured employee, without good cause, fails to attend a designated doctor examination.]

[ (1) In the absence of a finding by the commission to the contrary, an insurance carrier may presume that the injured employee did not have good cause to fail to attend the examination if:]

[ (A) by the day the examination was originally scheduled to occur the injured employee has both:]

[ (i) failed to submit to the examination; and]

[ (ii) failed to contact the designated doctor's office to reschedule the examination to occur no later than the later of the fourteenth day after the originally scheduled examination date or the doctor's first available appointment date; or]

[ (B) after rescheduling the examination as provided in subsection (c)(1)(A)(ii) of this section, the injured employee failed to submit to the rescheduled examination.]

[ (2) If, after the insurance carrier suspends TIBs pursuant to this section, the injured employee submits to the designated doctor examination, the insurance carrier shall reinitiate TIBs as of the date the injured employee submitted to the examination unless the report of the designated doctor indicates that the injured employee has reached MMI. The re-initiation of TIBs shall occur no later than the seventh day following the latter of:]

[ (A) the date the insurance carrier was notified that the injured employee had attended the examination; or]

[ (B) the date that the insurance carrier was notified that the commission found that the injured employee had good cause for failure to attend the examination.]

[ (3) An injured employee is not entitled to TIBs for a period during which the insurance carrier suspended benefits pursuant to this section unless the injured employee later submits to the examination and the commission finds or the insurance carrier determines that the injured employee had good cause for failure to attend the examination.]

(b) [ (d) ] The designated doctor shall address the issue(s) in question and any issues the Division [ commission ] may request the designated doctor to consider and confine the report [ as described in subsection (h) of this section ] to only those issues.

(1) When there has been no prior certification of MMI, the designated doctor shall evaluate the injured employee (employee) for MMI, and if the doctor finds that the [ injured ] employee reached MMI, assign an impairment rating. If the designated doctor finds that the [ injured ] employee has not reached MMI, the doctor shall identify the reason that the designated doctor does not believe the [ injured ] employee to have reached MMI, and estimate the date that the [ injured ] employee will reach MMI.

(2) When there has been a prior certification of MMI and impairment rating and only the MMI date is in question, the designated doctor shall evaluate the date the [ injured ] employee reached MMI and shall not assign an impairment rating. If the certification of MMI in question was the treating doctor's certification and the designated doctor finds that the [ injured ] employee either was not at MMI or reached MMI on a date later than the treating doctor's certification [ doctor ], the designated doctor shall provide an explanation with clinical documentation to support why the [ injured ] employee had not reached MMI as of the date certified by the treating doctor.

(3) When the impairment rating is the only issue in question, the doctor shall assign an impairment rating based on the employee's medical condition on [ without regard to ] the MMI date.

(4) When MMI and permanent whole body impairment are in question and the designated doctor determines that the [ injured ] employee has not reached MMI, the designated doctor shall not assign an impairment rating. If the prospective MMI date is within 60 days of the date of the examination, the doctor shall schedule a second examination in accordance with §126.7 of this title (relating to Designated Doctor Examinations: Requests and General Procedures). [ Otherwise, the doctor shall certify MMI and assign an impairment rating. ]

(5) When the extent of the injury may not be agreed upon by the parties (based upon documentation provided by the treating doctor and/or insurance carrier or the comments of the [ injured ] employee regarding his/her injury), the designated doctor shall provide multiple certifications of MMI and impairment ratings that take into account the various interpretations of the extent of the injury so that when the Division [ commission ] resolves the dispute, there is already an applicable certification of MMI and impairment rating from which to pay benefits as required by the Act [ statute ].

(c) [ (e) ] When performing range of motion testing, if the AMA Guides specify [ specifies ] that additional testing be performed because of consistency requirements, the designated doctor shall reschedule testing within seven days of the first testing unless there is no clinical basis for retesting and then the designated doctor shall document this in the narrative notes with the clinical explanation for not recommending re-examination.

(d) [ (f) ] Range of motion, sensory, and strength testing should be performed by the designated doctor, when applicable. If this testing is not performed by the designated doctor, the health care provider performing the testing must have successfully completed Division [ commission ]-approved training, must not have previously treated or examined the [ injured ] employee within the past 12 months, and must not have [ not ] examined or treated the [ injured ] employee with regard to the medical condition being evaluated by the designated doctor. Use of another health care provider to perform testing under this subsection shall not extend the amount of time the designated doctor has to file the report and the designated doctor is responsible for ensuring that the requirements of this chapter are complied with.

(e) [ (g) ] For testing other than that listed in subsection (d) [ (f) ] of this section, the designated doctor may perform additional testing or refer [ injured employees ] the employee to other health care providers when deemed necessary to assess an impairment rating. Any additional testing required for the evaluation and rating, is not subject to preauthorization requirements in accordance with the Texas Labor Code, §413.014 (relating to Preauthorization) and additional testing must be completed within seven working days of the designated doctor's physical examination of the [ injured ] employee. Use of another health care provider to perform testing under this subsection can extend the amount of time the designated doctor has to file the report by seven working days.

(f) If the designated doctor provided multiple certifications of MMI/impairment ratings by operation of subsection (b)(5) of this section, the insurance carrier shall pay benefits based on the conditions that have not been disputed, or have been finally adjudicated by the Division, to be part of the compensable injury.

[ (h) The designated doctor shall complete and file a Report of Medical Evaluation in accordance with §130.1 of this title (relating to Certification of Maximum Medical Improvement and Evaluation of Permanent Impairment) and 130.3 of this title (relating to Certification of Maximum Medical Improvement and Evaluation of Permanent Impairment by A Doctor Other Than The Treating Doctor).]

[ (i) The designated doctor shall respond to any commission requests for clarification not later than the fifth working day after the date on which the doctor receives the commission's request. The doctor's response is considered to have presumptive weight as it is part of the doctor's opinion. If, in order to respond to the request for clarification, the designated doctor has to re-examine the injured employee, the doctor shall:]

[ (1) make him/herself available to conduct the reexamination within 10 working days of receiving the request (even if it means traveling back to the location of the original examination); and]

[ (2) respond to the request for clarification not later than the fifth working day following the reexamination.]

[ (j) The designated doctor shall maintain accurate records, including the injured employee records, analysis (including supporting information), and narratives provided by the insurance carrier and treating doctor, to reflect:]

[ (1) the date and time of any designated doctor appointments scheduled with injured employees;]

[ (2) the circumstances regarding a cancellation, no-show or other situation where the examination did not occur as initially scheduled or rescheduled;]

[ (3) the date of the examination;]

[ (4) the date medical records were received from the treating doctor or any other person or organization;]

[ (5) the date the medical evaluation report was submitted to all parties in accordance with §130.1 of this title (relating to Reports of Medical Evaluation: Maximum Medical Improvement and Permanent Impairment);]

[ (6) the name of all referral health care providers, date of appointments and reason for referral by the designated doctor; and]

[ (7) the date the doctor contacted TWCC for assistance in obtaining medical records from the insurance carrier or treating doctor.]

[ (k) The insurance carrier shall pay any accrued income benefits, and shall begin or continue to pay weekly income benefits, in accordance with the designated doctor's report for the issue(s) in dispute, no later than five days after receipt of the report or five days after receipt of an order by the commission, whichever is earlier. If the designated doctor provided multiple certifications of MMI/impairment ratings by operation of subsection (d)(5) of this section, the insurance carrier shall pay using the certification/rating assigned based on the conditions that the insurance carrier believes are part of the compensable injury.]

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 January 23, 2006.

TRD-200600350

Norma Garcia

General Counsel

Texas Department of Insurance, Division of Workers' Compensation

Earliest possible date of adoption: March 5, 2006

For further information, please call: (512) 804-4288

Chapter 130. IMPAIRMENT AND SUPPLEMENTAL INCOME BENEFITS

The Texas Department of Insurance, Division of Workers' Compensation proposes repeal of §130.5 and §130.110 concerning impairment and supplemental income benefits. The repeals are necessary to implement changes to the Labor Code §408.0041 as a result of House Bill (HB) 7, enacted by the 79th Legislature, Regular Session, effective September 1, 2005.

HB 7 changed the Labor Code §408.0041 by expanding the list of issues that a designated doctor may be asked to address to include the injured employee's (employee) ability to return to work, the extent of the injury, whether the employee's disability is a direct result of the injury and similar issues. As a result of the change, the designated doctor will now be asked to address issues that may affect the delivery of income benefits in general, rather than just impairment income benefits (IIBs) as is currently the case. In response to this change, §130.5 is proposed for repeal as the process for entitlement to, and request for, a designated doctor, applies to benefits in general, and the process for entitlement to and request for a designated doctor have been moved to proposed new §126.7. Additionally, §130.110 is proposed for repeal due to the changes in §408.0041 regarding designated doctor examinations regarding the ability of the employee to return to work. The process for, entitlement to, and requesting a designated doctor exam regarding the employee's ability to return to work after the second anniversary of entitlement to supplemental income benefits (SIBs) is also addressed in proposed new §126.7. The combination of repealed §§130.5 and 130.110 into proposed new §126.7 will also provide consistency throughout the designated doctor process regardless of the issue being addressed. Amendments to §§126.5 and 126.6 and proposed new §126.7 are published elsewhere in this issue of the Texas Register .

Brent Hatch, Director, Central Claims Management and Customer Services, has determined that for each year of the first five years the proposed repeals are in effect, there will be no fiscal impact to state and local governments as a result of the repeals. There will be no measurable effect on local employment or the local economy as a result of the proposed repeals.

Mr. Hatch has also determined that for each year of the first five years the proposed repeals are in effect the public benefits anticipated as a result of the repeals will be compliance with and implementation of legislative directives and consistency in the rules under which all Texas Workers' Compensation System participants function.

The anticipated benefit to employees, insurance carriers and health care providers is the centralization of direction and guidance regarding entitlement to, requesting, and selection of designated doctors, and consistency in the process for submission of medical documentation and analyses to the designated doctor by the insurance carrier and treating doctor.

Employers should benefit to the extent that the reductions in costs may translate to savings in premiums, and from timely return to work of employees. There are no anticipated costs as a result of the proposed repeals.

To be considered, written comments on the proposal must be submitted no later than 5:00 p.m. on March 6, 2006 to Norma Garcia, General Counsel, Division of Workers' Compensation, MS-4D, Texas Department of Insurance, 7551 Metro Center Drive, Suite 100, Austin, Texas 78744. An additional copy of the comment must be simultaneously submitted to Brent Hatch, Director, Central Claims Management and Customer Services, Division of Workers' Compensation, MS-600, Texas Department of Insurance, 7551 Metro Center Drive, Suite 100, Austin, Texas 78744. A request for a public hearing should be submitted separately to the General Counsel.

Subchapter A. IMPAIRMENT INCOME BENEFITS

28 TAC §130.5

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Insurance, Division of Workers' Compensation or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal is proposed under the Labor Code §§408.0041, 402.00111 and 402.061. Section 408.0041 provides for designated doctor examinations. Section 402.00111 provides that the Commissioner of Workers' Compensation shall exercise all executive authority, including rulemaking authority, under the Labor Code and other laws of this State. Section 402.061 provides the Commissioner the authority to adopt rules as necessary to implement and enforce the Texas Workers' Compensation Act.

The following section is affected by this proposal: Statute Labor Code §408.0041.

§130.5.Entitlement and Procedure for Requesting Designated Doctor Examinations related to Maximum Medical Improvement and Impairment Rating.

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 January 23, 2006.

TRD-200600348

Norma Garcia

General Counsel

Texas Department of Insurance, Division of Workers' Compensation

Earliest possible date of adoption: March 5, 2006

For further information, please call: (512) 804-4288

28 TAC §130.110

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Insurance, Division of Workers' Compensation or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal is proposed under the Labor Code §§408.0041, 402.00111 and 402.061. Section 408.0041 provides for designated doctor examinations. Section 402.00111 provides that the Commissioner of Workers' Compensation shall exercise all executive authority, including rulemaking authority, under the Labor Code and other laws of this State. Section 402.061 provides the Commissioner the authority to adopt rules as necessary to implement and enforce the Texas Workers' Compensation Act.

The following section is affected by this proposal: Statute Labor Code §408.0041.

§130.110.Return to Work Disputes During Supplemental Income Benefits; Designated Doctor.

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 January 23, 2006.

TRD-200600352

Norma Garcia

General Counsel

Texas Department of Insurance, Division of Workers' Compensation

Earliest possible date of adoption: March 5, 2006

For further information, please call: (512) 804-4288

Chapter 133. GENERAL MEDICAL PROVISIONS

Subchapter G. ELECTRONIC MEDICAL BILLING, REIMBURSEMENT, AND DOCUMENTATION

28 TAC §133.500, §133.501

The Texas Department of Insurance, Division of Workers' Compensation proposes new Subchapter G, §133.500 and §133.501, concerning electronic medical billing, reimbursement, and documentation. The sections are necessary to support the electronic exchange of medical billing and reimbursement data and documentation in the workers' compensation system.

Currently the majority of medical bills in the workers' compensation system are submitted by health care providers on paper forms to insurance carriers, third-party administrators, or medical bill review vendors. Minimal electronic billing occurs in the system. Insurance carriers report professional and hospital bill payment data to the Division in electronic file formats developed specifically for Texas' workers' compensation. The Division is transitioning from a Texas specific format to a national standard format that will collect pharmacy and dental data as well as professional and hospital data.

House Bill (HB) 2511, enacted by the 76th Legislature, added Texas Labor Code §401.024, which set goals for paper reduction in the workers' compensation system. Paper medical bills and related medical documentation account for the majority of paper exchanged in the Texas workers' compensation system. Provisions of HB 2511 allow the Division to adopt rules to permit or require electronic transmission in place of established forms, manner, or procedures that require paper processing. HB 7, enacted by the 79th Legislature, Regular Session, added Texas Labor Code §408.0251, which requires the Division to adopt rules regarding the electronic submission and processing of medical bills from health care providers to insurance carriers.

Approximately six to eight million paper medical bills are processed annually in the Texas workers' compensation system. Initial estimates indicate a potential for significant reductions in the administrative costs and handling time for medical bill processing. The proposed new sections are part of the Division's Electronic Billing and Reimbursement (eBill) project initiated to identify and implement an electronic billing solution for the Texas workers' compensation system. eBill processing includes the method of transmission; components of the transactions being transmitted; and the structure, organizations, systems, or applications enabling the transmissions. The eBill project is a component of the Division's Business Process Improvement initiative; a coordinated set of projects that use technology to streamline agency processes to meet the goals set out in HB 2511.

Proposed Subchapter G encompasses the processes and methods for transmitting electronic medical bill data and documentation related to electronic medical bills between the Division, health care providers, and insurance carriers. The proposed rules establish the method of transmission and the required elements in an electronic transaction. The format and data collected improve the data integrity of the data collected by the Division and exchanged by system participants. The data collected is used to administer statutory mandates, such as compliance and practices, fee guideline development, and monitor the effect of networks in the workers' compensation system. The proposed rules are subject to the specific provisions of Chapters 133 and 134 to determine medical bill processing and reimbursement.

Proposed §133.500 specifies the use of specific national standard formats, national implementation guides, and Division implementation guides for transmitting electronic medical bill data and associated transactions between the Division, health care providers, and insurance carriers. This allows the Division to define the elements required in a transaction, the applicable code sets, and data edits by reference to the national and Division implementation guides. The proposed section provides flexibility to exchange data in non-prescribed formats when mutually agreed upon by a health care provider and an insurance carrier. The data elements, code sets, and edits in non-prescribed formats must conform to requirements in Division prescribed formats which will allow flexibility to respond to participants needs while ensuring consistency.

Proposed §133.501 establishes the exclusive process to exchange medical bill and reimbursement data between the Division, health care providers, and insurance carriers. This proposed section establishes applicability, the effective date for electronic billing, and includes provisions that allow health care providers and insurance carriers to contract with other entities to process electronic medical bill data. The proposed section also includes waiver provisions for health care providers and insurance carriers. The waiver provision exempts health care providers or insurance carriers from the requirement to exchange medical bill data exclusively by electronic means if implementing electronic medical bill processing would cause an unreasonable financial burden. A health care provider whose workers' compensation business constitutes less than 10 percent of their practice and employs 10 or fewer full time employees qualifies for a waiver. The intent of the provision is to quantify 10 percent of a practice to include patient volume, bill volume, and dollar volume. This section does not establish an administrative process for health care providers to obtain a waiver. If a health care provider uses the paper billing process, their billing practices may be reviewed by the Division for compliance with the waiver provision. Insurance carriers may qualify for a waiver on a case-by-case basis as determined by the Division. The intent of the insurance carrier waiver provision is to ensure that an insurance carrier is waived from the electronic billing requirements if implementing electronic medical bill processing causes an unreasonable financial burden.

Proposed §133.501 defines an electronic medical bill and the components of a complete electronic medical bill. The proposed section limits the submission of duplicate electronic medical bills by health care providers. This section also establishes an acknowledgment process for the receipt of an electronic medical bill. The acknowledgment process is not an admission of insurance carrier liability. The acknowledged acceptance of a complete medical bill does not prohibit an insurance carrier from subsequently rejecting an accepted electronic medical bill based on limited or contested liability.

Proposed §133.501 also includes provisions for electronic remittance notification from insurance carriers to health care providers that comply with Division rules regarding payment or denial of a medical bill, recoupment request, or acknowledgment of receipt of a refund. An electronic remittance notification must be issued no later than 45 days after receipt of a complete electronic medical bill or within 5 days of generating a payment. The Division recognizes that in an electronic process, a payment and the electronic remittance notification may not be issued at the same time. The intent is to ensure that there is not an unreasonable delay between the payment and the electronic remittance notification.

Proposed §133.501 establishes a process for electronically exchanging documentation associated with electronic medical bills by defining the method of transmission and adopting a standard electronic format. This section does not designate documentation as a component of a complete electronic medical bill because the proposed prescribed electronic billing formats do not support electronic documentation in the same billing transaction. Chapter 134 and previous subchapters of Chapter 133 establish documentation requirements related to health care services provided.

Joseph Montoya, Acting Program Manager, Business Process and Improvement, has determined that for each year of the first five years the proposed sections will be in effect, there will be no fiscal impact to state and local governments as a result of the enforcement or administration of the rule. There will be no measurable effect on local employment or the local economy as a result of the proposal.

Mr. Montoya has also determined that for each year of the first five years the sections are in effect, the public benefit as a result of the proposed sections will be a reduction in the amount of paper exchanged related to medical bill processing, an overall decrease in the administrative costs to health care providers and insurance carriers, a shorter turn around time frame for receiving and processing medical bills, an increase in data integrity, and a decrease in certain types of billing disputes.

Insurance carriers reported 4.5 million bills to the Division of Workers' Compensation in calendar year 2005, which represents an estimated $3.2 million in total annual postage cost to the system, with $1.6 million annually allocated to health care providers for submissions of bills and $1.6 million allocated to insurance carriers to mail explanation of benefits (EOBs). The California Commission on Health and Safety and Workers' Compensation White Paper on Cost/Benefit of Implementing Electronic Deposit for Unemployment and Disability Benefits in the State of California, July 2004 references the Ohio state workers' compensation analysis of costs to process a payment by check ($2.50) versus an electronic transfer (4.5 cents). The analysis also indicates that the state of California Department of Health and Human Services estimates that the state might save more than $1 on every state warrant that is converted to electronic funds transfer. Based on discussions with insurance carriers in the Texas workers' compensation system, the Texas Department of Insurance Research and Evaluation Group estimates that insurance carrier's cost to process a medical bill through payment is $8 per bill (from receipt of bill through generation of payment/EOB). Based on California and Ohio estimates, the cost for insurance carriers to generate and distribute payments for medical bills is conservatively estimated at more than $5 million dollars annually, $2.50 per payment for half of the 4.5 million bills. Based on the California study, if Texas insurance carriers submit 20 percent (450,000) of their payments by electronic funds transfer rather than paper checks the total savings can be an estimated at $450,000 annually.

In addition to reduction in postage and check generation costs, it is further expected that insurance carriers will obtain savings in the following areas by implementation of electronic medical billing and funds transfer: eliminate manual screening and processing of mail to return bills to the provider; eliminate Optical Character Recognition (OCR) and/or imaging system scanning and data correction; eliminate manual data entry; eliminate paper EOBs; reduce the number of incomplete and duplicate bill submissions; and reduce paper storage, recycling, and disposal costs. Start up costs to implement electronic billing solutions by health care providers and insurance carriers is estimated to be $500,000. This includes hardware costs, programming costs, and vendor implementation fees. The estimated cost is comparable to the implementation costs for similar electronic interfaces initiated by insurance carriers and other organizations. The implementation cost is expected to be offset by the savings achieved within the first two years after implementation. A goal of the Electronic Billing and Reimbursement Project is that the electronic billing model adopted and implemented ensures the cost to system participants to exchange electronic transactions is between 6 and 25 cents per transaction. Generally, at least four transactions are associated with a complete electronic medical bill: health care provider sends electronic medical bill to a clearinghouse, clearinghouse sends acknowledgment to the health care provider, clearinghouse sends electronic medical bill to the insurance carrier, and insurance carrier sends electronic EOB to the health care provider or clearinghouse. An average cost to an insurance carrier to receive a paper medical bill is between $2 and $5 per bill, which results in a total cost between $9 and $22.5 million annually to the Texas workers' compensation system. The ongoing administrative costs to insurance carriers for electronic billing and reimbursement is expected to be 60 to 80% less than the average cost of paper processing and save $5.4 million annually.

Health care providers who are not already exchanging data electronically may experience an initial cost to implement electronic interface. It is expected that any start-up costs will likely be offset by a decrease in overall administrative costs for generating and processing paper medical bills and documentation. Health care providers are expected to experience a decrease in the administrative costs of medical bill processing based on savings achieved in existing electronic billing models in the Medicare, group health environments, and other workers' compensation jurisdictions. It is expected that national standard formats, standard code sets, and national standard edits paired with Division-established edits will result in a higher medical bill acceptance rate and a decrease in certain types of billing disputes. Other benefits expected for health care providers as a result of electronic medical billing and reimbursement are shorter time frames for bill processing and reimbursement.

Insurance carriers, including certified self-insured employers, which are not already exchanging data electronically, may experience start-up costs to implement their electronic interface. It is expected these initial costs will be offset by a decrease in overall administrative costs for generating and processing paper medical bills and documentation. Insurance carriers, including certified self-insured employers, are expected to experience a decrease in the administrative cost of medical bill processing by eliminating: paper processing, screening and scanning processes; manual return to provider bill processing; manual data entry; and data validation. Electronic billing also provides an increase in automation potential, increased efficiency, and data integrity. It is expected that electronic billing will also decrease the time frame to receive medical bills and associated documentation and increase compliance with medical bill payment requirements.

Employers that purchase workers' compensation insurance may experience some positive economic impact from these proposed rules as a result of an overall decrease in the administrative costs to insurance carriers and health care providers related to medical bill processing. There will be no economic costs to employees, as these sections do not impose any requirements on injured employees.

There will be no difference in the cost of compliance between a large and small business as a result of the proposed sections. Based upon the cost of labor per hour, there is no disproportionate economic impact on small or micro businesses. The proposed rule does have a provision for waiver for those carriers that compliance with the rule will cause a financial burden. There is also a waiver provision for health care providers. To the extent that a small business does not qualify for a waiver, it is neither legal nor feasible to waive the provisions of the proposed sections for all small or micro businesses because the Labor Code requires the Division to implement a process for the electronic transmission of information to replace established forms and procedures that require paper processing and these rules accomplish that goal. To the extent that a waiver of application of the rules to small employers needs to occur, provisions have been included in the proposed sections.

Some of the costs described may be based on the cost to the Division to implement electronic billing interfaces. The purpose is to determine an estimated cost to the system and does not imply that an electronic billing model has been selected.

To be considered, written comments on the proposal must be submitted no later than 5:00 p.m. on March 6, 2006 to Norma Garcia, General Counsel, Mail Code 4-D, Division of Workers' Compensation, Texas Department of Insurance, 7551 Metro Center Drive, Suite 100, Austin, TX 78744. An additional copy of the comment must be simultaneously submitted to Joseph Montoya, Acting Program Manager, Business Process and Improvement Manager, Mail Code 4-D, Division of Workers' Compensation, Texas Department of Insurance, 7551 Metro Center Blvd., Austin, Texas 78744. A request for public hearing should be submitted separately to the General Counsel.

The sections are proposed under Texas Labor Code §§402.024, 408.025, 408.0251, 408.027, 413.007, 413.008, 413.053, 402.0011, and 402.061. Section 401.024 provides the Commissioner the authority to permit or require by rule the use of facsimile or other electronic means to transmit information in the system. Section 402.042 authorizes the Commissioner to enter orders as authorized by the statute as well as to prescribe by rule the form, manner, and procedure for transmission of information to the Division. Section 408.025 requires the Commissioner to specify by rule the reports a health care provider is required to file. Section 408.0251 gives the Commissioner the authority to adopt rules regarding the electronic submission and processing of medical bills by health care providers to insurance carriers. Section 408.027 provides for payment of health care providers by insurance carriers. Section 413.007 directs the Division to maintain a statewide database of medical billing information. Section 413.008 authorizes the Division to collect certain medical bill and payment information from the insurance carrier. Section 413.053 gives the Commissioner the authority to establish standards of reporting and billing governing both form and content by rule. Section 402.0011 provides that the Commissioner of Workers' Compensation shall exercise all executive authority, including rulemaking authority under the Labor Code and other laws of this state. Section 402.061 provides the Commissioner the authority to adopt rules as necessary to implement and enforce the Texas Workers' Compensation Act.

Statute

Texas Labor Code §§402.024, 408.025, 408.0251, 408.027, 413.007, 413.008, 413.053

§133.500.Electronic Formats for Electronic Medical Bill Processing.

(a) The Division prescribes standard electronic formats by adopting the following implementation guides for the medical billing transactions:

(1) Billing:

(A) Professional Billing--ANSI x12 837(P) Version 4010.

(B) Institutional/Hospital Billing--ANSI x12 837(I) Version 4010.

(C) Dental Billing--ANSI x12 837(D) Version 4010.

(D) Pharmacy Billing--NCPDP Telecommunications Standard Version 5.1

(2) Acknowledgment:

(A) Functional Acknowledgment--ANSI x12 997 Version 4010.

(B) Detail Acknowledgment--ANSI x12 824 Version 4010.

(3) Remittance--ANSI x12 835 Version 4010.

(4) Reporting--IAIABC 837 Version 4010.

(5) Documentation--ANSI x12 275 Version 4050.

(b) An implementation guide is a:

(1) specification document for national standard electronic formats as defined in subsection (a) of this section and published by a national standard setting organization that defines data requirements, data transaction sets, and data mapping; or

(2) published specification document that defines specific data requirements, data set transactions, data mapping, or data edits and is intended to accompany national standard implementation guides.

(c) Medical billing transactions must:

(1) contain all fields required in the applicable format implementation guide as set forth in subsection (a) of this section and associated Division implementation guides; and

(2) be populated with current and correct values defined in the applicable implementation guide as set forth in subsection (a) of this section and associated Division implementation guides.

(d) Insurance carriers and health care providers may exchange electronic data in a non-prescribed format by mutual agreement. All data elements required in the Division prescribed formats must be present in a mutually agreed upon format.

§133.501.Electronic Medical Bill Processing.

(a) Applicability.

(1) Electronic medical bill processing is the exclusive process to exchange medical bill data in accordance with §133.500 of this chapter (relating to Electronic Formats for Electronic Medical Bill Processing) for professional, institutional/hospital, pharmacy, and dental services.

(2) Insurance carriers must be able to exchange electronic data by January 1, 2008 unless the insurance carrier is excepted from the process in accordance with paragraph (6) of this subsection.

(3) Health care providers must be able to exchange electronic data by January 1, 2008 unless the health care provider is excepted from the process in accordance with paragraph (5) of this subsection.

(4) Health care providers and insurance carriers may contract with other entities for electronic medical bill processing. Insurance carriers and health care providers are responsible for the acts or omissions of its agents executed in the performance of services for the insurance carrier or health care provider.

(A) Health care provider agent is a person or entity that the health care provider contracts with or utilizes for the purpose of fulfilling the health care provider's obligations for electronic medical bill processing under the Texas Labor Code or Division rules.

(B) Insurance carrier agent is a person or entity that the insurance carrier contracts with or utilizes for the purpose of providing claims service or fulfilling the insurance carrier's obligations for electronic medical bill processing under the Texas Labor Code or Division rules.

(5) A health care provider is waived from the requirement to submit medical bills electronically to an insurance carrier if:

(A) the health care provider employs 10 or fewer full time employees, and

(B) workers' compensation constitutes less than 10% of their practice.

(6) An insurance carrier is waived from the requirement to receive medical bills electronically from health care providers on approval from the Division. The Division may grant an exception on a case-by-case basis.

(b) Electronic medical bill.

(1) An electronic medical bill is a medical bill submitted electronically by a health care provider or an agent of the health care provider.

(2) A complete electronic medical bill is an electronic medical bill that:

(A) is submitted in accordance with this chapter, and

(B) identifies the:

(i) injured employee;

(ii) employer;

(iii) insurance carrier;

(iv) health care provider; and

(v) service, supply, or medication.

(3) The received date of an electronic medical bill is the date the bill is electronically transmitted in accordance with §102.4(p) of this title (relating to General Rules for Non-Division Communication). An electronic medical bill is considered received if it meets the criteria of a complete electronic medical bill.

(c) Acknowledgment.

(1) A Functional Acknowledgment is an electronic notification to the sender of an electronic file that the file has been received and:

(A) accepted as a complete, correct file, or

(B) rejected with a valid rejection code.

(2) A Detail Acknowledgment is an electronic notification to the sender of an electronic transaction within an electronic file that the transaction has been received and:

(A) accepted as a complete, correct submission, or

(B) rejected with a valid rejection code.

(3) An insurance carrier must acknowledge receipt of an electronic medical bill by returning a Detail Acknowledgment within 24 hours of receipt of the electronic submission.

(A) Notification of a rejection is transmitted in a Detail Acknowledgment when an electronic medical bill does not meet the definition of a complete electronic medical bill or does not meet the edits defined in the applicable implementation guide or guides.

(B) A health care provider may not submit a duplicate electronic medical bill earlier than 45 days from the date submitted if an insurance carrier has acknowledged acceptance of the original complete electronic medical bill. A health care provider may submit a corrected medical bill electronically to the insurance carrier after receiving notification of a rejection. The corrected medical bill is submitted as a new, original bill.

(4) Acceptance of a complete medical bill is not an admission of liability by the insurance carrier. An insurance carrier may subsequently reject an accepted electronic medical bill if it is determined that the employer listed on the medical bill is not a policyholder of the insurance carrier.

(A) The subsequent rejection must occur no later than 7 days from the date of receipt of the complete electronic medical bill.

(B) The rejection transaction must clearly indicate the reason for the rejection is due to denial of liability.

(d) Electronic remittance notification.

(1) An electronic remittance notification is an explanation of benefits (EOB), submitted electronically regarding payment or denial of a medical bill, recoupment request, or receipt of a refund.

(2) An insurance carrier must provide an electronic remittance notification no later than 45 days after receipt of a complete electronic medical bill or within 5 days of generating a payment.

(e) Electronic documentation.

(1) Electronic documentation consists of medical reports and/or records submitted electronically that are related to an electronic medical bill.

(2) Complete electronic documentation related to an electronic medical bill:

(A) is submitted by fax, electronic mail, or in an electronic format and

(B) identifies the:

(i) injured employee,

(ii) insurance carrier,

(iii) health care provider;

(iv) related medical bill(s), and

(v) date(s) of service.

(3) When a health care provider submits electronic documentation related to an electronic medical bill, the documentation must be submitted within 7 days of submission of the electronic medical bill.

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 January 23, 2006.

TRD-200600345

Norma Garcia

General Counsel

Texas Department of Insurance, Division of Workers' Compensation

Earliest possible date of adoption: March 5, 2006

For further information, please call: (512) 804-4288

Chapter 180. MONITORING AND ENFORCEMENT

Subchapter B. MEDICAL BENEFIT REGULATION

28 TAC §§180.21, 180.22, 180.28

The Texas Department of Insurance, Division of Workers' Compensation proposes new §180.28 and amendments to §180.21 and §180.22 concerning peer reviewers and designated doctors. These proposed sections are necessary to implement new statutory provisions contained in House Bill (HB) 7, enacted by the 79th Legislature, Regular Session.

HB 7 requires standards for an insurance carrier (carrier) to use peer reviews to determine the appropriateness of treatment related to an injured employee's compensable or job-related injury. The proposed amendments and new section are necessary to implement the Labor Code §408.0231, which sets forth the requirements for the Commissioner to adopt rules regarding providers performing peer review functions for insurance carriers, peer review standards, imposition of sanctions on doctors performing peer review functions, and other issues related to the quality of peer reviews. This proposal reflects the Division's efforts to address the following objectives regarding benefits of peer reviews as a result of stakeholder input: ensure the use of peer reviews for health care service of a workers' compensation claim; curtail the carrier's ability to request multiple peer reviews of the same health care services/issues for a favorable decision; require the use of current, evidence-based treatment parameters; facilitate timely and appropriate medical treatments and services; control utilization of medical treatments and services; and control medical costs where appropriate. The intent of this proposal is to improve the quality of health care provided to injured employees and to monitor peer reviews in the workers' compensation system. The implementation of peer review standards helps to ensure that health care providers performing peer reviews consider evidence-based medicine prior to making any determinations related to the review of medical care. The implementation of peer review standards may reduce excessive or inappropriate medical care while safeguarding the delivery of necessary medical care by requiring the treating doctor to identify, prescribe, and provide only appropriate health care. Proposed §180.22 contains health care provider roles and responsibilities, including peer reviewers. Proposed §180.28 sets forth the peer review requirements, reporting, and sanctions, which includes parameters for the request and use of peer review reports.

Amendments to §180.21 and §180.22 are also proposed to implement the expanded role of designated doctors under HB 7, including requirements for additional training to ensure proficiency in determining the injured employee's extent of injury, ability to return to work, and whether the injured employee's disability is the direct result of a work-related injury. Correspondingly, the Division proposes new and additional qualifications that a doctor must meet to be admitted to the Division's Designated Doctor List (DDL) pursuant to Labor Code §408.0041 and §408.1225.

The proposed amendments to subsection (a) of §180.21 identify two new disqualifying associations that prevent a designated doctor from rendering an opinion: having a contract with the same health care network responsible for providing medical care to the examinee; and having any other association with the employee, employer, or insurance carrier that may give the appearance of preventing the designated doctor from rendering an unbiased opinion. Proposed amendments to §180.21 further specify the requirements for admission to the Division's DDL, distinguishing between existing requirements in subsection (c) that remain in effect prior to September 1, 2006, and the revised requirements of subsection (d), effective after September 1, 2006. The revised requirements place greater emphasis on professional competencies in disciplines relevant to treating workers' compensation claimants. The proposed amendments to subsection (e) require reapplication to the DDL every two years and completion of 12 additional hours of relevant training. Importantly, this section also proposes to add the requirement that DDL applicants must confirm with the Division the doctor's training and ability to address the additional issues set forth in Labor Code §408.0041. The proposed amendments to subsection (m) add language related to failure to notify the Division of conflicts caused by the doctor's and injured employee's association with the same workers' compensation network to the list of reasons a doctor may be deleted or suspended from the DDL.

The proposed amendments to subsection (f) of §180.22 specify the authority under which a RME may be conducted and provide the list of issues the RME doctor may not address unless there has been a prior designated doctor exam on the specific issue, or specific direction from the Division.

Additionally, the proposed amendments to §180.21 and §180.22 remove unnecessary language to increase the clarity of the sections, reduce confusion, and address new statutory requirements of HB 7. The term "Commission" has been changed to either "Division" or "Commissioner," as appropriate for consistency.

Allen McDonald, Director, Medical Review, has determined that for each year of the first five years the proposed sections will be in effect there will be a minimal fiscal impact to state and local governments as a result of the enforcement or administration of the sections. With a structured peer review process and the adoption of standard and universally applied treatment guidelines, the volume of requests to the Division for medical dispute resolution regarding medical necessity of treatments and services is anticipated to decrease. There will be no measurable effect on local employment or the local economy as a result of the proposal.

Mr. McDonald has determined that for each year of the first five years the proposed sections are in effect, the public benefits anticipated as a result of the proposed sections will be an improved system of monitoring health care for injured employees and the reduction of the administrative burdens introduced through the frequent use of peer reviews to deny entitlement to reasonable and necessary treatment. The adoption of standards related to peer reviews helps ensure that an appropriately licensed doctor considers evidence-based medicine prior to making any determinations related to the review of medical care. Allowing the continued use of peer reviews with these parameters will reduce excessive or inappropriate medical care while safeguarding the delivery of necessary medical care. Health care providers should benefit from the clarification in the rules. They may experience increased training costs associated with the proposed rules and the Chapter 126 and 130 rules concurrently proposed. The Division estimates that training costs will be approximately $500 to attend the initial required designated doctor training and testing. The bi-annual training costs are also estimated to be approximately $500. Insurers will realize a positive financial impact from savings resulting from the elimination of unnecessary medical services or treatments. Employers may also realize a positive financial impact through a reduction of insurance premiums. Injured employees will be positively impacted in a structured peer review process, which minimizes interruptions in receipt of medical treatment. No economic costs are anticipated for injured employees to comply with the requirements of the sections.

Any additional economic costs currently exist under existing rules or result from the enactment of HB 7 and are not a result of the adoption, enforcement, or administration of the proposed sections. Based upon the cost of labor per hour, there is no disproportionate economic impact on small or micro businesses. Even if the proposed sections would have an adverse effect on small or micro businesses, it is neither legal nor feasible to waive the provisions of the proposed sections for small or micro businesses because the Labor Code requires equal application of these provisions to all affected individuals.

To be considered, written comments on the proposal must be submitted no later than 5:00 p.m. on March 6, 2006, to Norma Garcia, General Counsel, MS 4D, Division of Workers' Compensation, Texas Department of Insurance, 7551 Metro Center Blvd., Suite 100, Austin, Texas 78744. An additional copy of the comment must be simultaneously submitted to Allen McDonald, MS 40, Director of Medical Review, Division of Workers' Compensation, Texas Department of Insurance, 7551 Metro Center Blvd., Suite 100, Austin, Texas 78744. A request for a public hearing should be separately submitted.

The new section and amendments are proposed under the Labor Code §§408.023, 408.0231, 408.004, 408.0041, 408.1225, 402.00111, and 402.061. Section 408.023 governs the Division's Approved Doctor List (ADL) and requires the Division to establish criteria for sanctions and removal of doctors from the ADL. Section 408.0231 requires the Commissioner of Workers' Compensation to adopt rules regarding doctors who perform peer review functions for insurance carriers, which may include standards for peer reviews, imposition of sanctions on doctors performing peer reviews, and other issues important to the quality of peer reviews. Section 408.004 provides for required medical examinations to resolve questions about the appropriateness of health care received by injured employees. Section 408.0041 sets out requirements for designated doctors and their examinations and requires the Division to order a medical examination to resolve any question about an injured employee's impairment caused by the compensable injury or the attainment of maximum medical improvement at the request of an insurance carrier or injured employee. Section 408.1225 requires the Commissioner of Workers' Compensation to develop qualification standards and administrative polices regarding eligibility to serve as a designated doctor. Section 402.00111 provides that the Commissioner of Workers' Compensation shall exercise all executive authority, including rulemaking authority, under the Labor Code and other laws of this State. Section 402.061 provides the Commissioner the authority to adopt rules as necessary to implement and enforce the Texas Workers' Compensation Act.

The following statutes are affected by this proposal: Texas Labor Code §§408.023, 408.0231, 408.004, 408.0041

§180.21. Division [ Commission ] Designated Doctor List.

(a) The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

(1) Active practice--A doctor has an active practice if the doctor maintains routine office hours of at least 20 hours per week for the treatment of patients.

(2) Disqualifying association--Any association that may reasonably be perceived as having potential to influence the conduct or decision of a doctor, which may include:

(A) receipt of income, compensation, or payment of any kind not related to health care provided by the doctor;

(B) shared investment or ownership interest;

(C) contracts or agreements that provide incentives, such as referral fees, payments based on volume or value, and waiver of beneficiary coinsurance and deductible amounts;

(D) 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;

(E) personal or family relationships;

(F) a contract with the same workers' compensation health care network that is responsible for the provision of medical benefits to the injured employee; or

(G) any other financial arrangement that would require disclosure under the Labor Code or applicable Division rules, or any other association with the injured employee, the employer, or insurance carrier that may give the appearance of preventing the designated doctor from rendering an unbiased opinion.

(b) [ (a) ] In order to serve as a designated doctor, a doctor must be on the Designated Doctor List (DDL).

[ (b) To be on the DDL prior to September 1, 2003, the doctor shall at a minimum:]

[ (1) be currently active on the Approved Doctor List (ADL) as set forth in Texas Labor Code §408.023 and §180.20 of this title (relating to Commission Approved Doctor List);]

[ (2) have maintained for the past three years and continue to maintain an active practice;]

[ (3) have filed a request to be on the DDL in the form and manner prescribed by the commission and been approved by the commission; and]

[ (4) 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) have successfully completed commission-approved training at least every two years from the date of the last training; and]

[ (C) have passed the commission-approved written examination for impairment rating training within the timeframe specified by the commission.]

(c) To be on the DDL prior to September 1, 2006, [ on or after September 1, 2003, ] the doctor shall at a minimum:

(1) be currently active on the Division's Approved Doctor List (ADL) [ ADL ] with a Level 2 Certificate of Registration with no condition(s) or restriction(s)[ , ] or have a temporary exception to the requirement to be on the ADL[ , ] as set forth in [ Texas ] Labor Code §408.023 and §180.20 of this title[ ; ] (relating to Commission Approved Doctor List);

(2) have had an active practice for one year during their career;

(3) be fully authorized to assign impairment ratings and certify maximum medical improvement (MMI) under §180.23(i) of this title (relating to Commission Required Training for Doctors/Certificate of Registration Levels);

(4) have filed a request in the form and manner prescribed by the Division [ commission, ] and have been approved by the Commissioner [ commission ] to be included on the DDL; and

(5) either maintain an active practice or successfully complete Division-approved [ commission-approved ] supplemental training on medical issues relevant to workers' compensation and/or serving as a designated doctor. Supplemental training shall be completed between 18 and 30 months following the doctor's passing the test required to obtain and retain full MMI/impairment authorization.

(d) To be on the DDL on or after September 1, 2006, the doctor shall at a minimum:

(1) meet the registration requirements, or the exceptions thereto, of subsection (c)(1) of this section or, upon expiration or waiver of the ADL in accordance with Labor Code §408.023(k), comply with all successor requirements, including but not limited to financial disclosure under Labor Code §413.041;

(2) have filed an application to be on the DDL, which must be renewed biannually;

(3) be at least board eligible to sit for an American Board of Medical Specialties examination and have at least one year of additional clinical experience treating injured employees in the Texas Workers' Compensation System or hold a Texas Doctorate of Chiropractic (D.C.) license and have three years of clinical experience, including treating injured employees in the Texas Workers' Compensation System. (D.C. Designated Doctor opinions shall be limited to injured employees with conditions of the musculoskeletal system); and

(4) have successfully:

(A) attained "Fellow" status with the American Academy of Disability Evaluating Physicians, or

(B) completed Division-approved training and examination on the assignment of impairment ratings using the currently adopted edition of the American Medical Association Guides, medical causation, extent of injury, functional restoration, return to work, and other disability management topics.

(e) A doctor shall renew an application status biannually and shall have completed and submitted to the Division information verifying 12 additional credit hours of training in accordance with subsection (d)(4)(B) of this section with each renewal application.

(f) [ (d) ] An incomplete application for registration to be admitted to the DDL pursuant to this section and other applicable rules [ Rules ] shall be rejected and shall not be processed.

(g) A complete application shall include:

(1) general contact information including, but not limited to: name, mailing address, telephone [ voice ] and facsimile numbers, and an email address;

(2) the training certificate indicating the level of training completed;

(3) Impairment Rating Skills Examination score;

(4) verification of licensure;

(5) information on the doctor's training and experience in various types of health care and injury areas; [ and ]

(6) disciplinary actions or practice restrictions by an appropriate licensing or certification authority, if any ; and [ . ]

(7) other information required by the Division to confirm the doctor's training and ability to determine:

(A) the extent of the injured employee's compensable injury;

(B) whether the injured employee's disability is the direct result of a work-related injury;

(C) the ability of the injured employee to return to work; or

(D) issues similar to those described in Labor Code §408.0041(a)(1) - (6).

(h) [ (e) ] The Commissioner [ commission ] may utilize members of the Medical Quality Review Panel (MQRP) for evaluating DDL applications and making recommendations to the Medical Advisor to approve or deny admission to the DDL. The Commissioner [ commission ] may also utilize members of the MQRP regarding deletion, suspension, or other sanction of a designated doctor as provided in this section.

(i) [ (f) ] Doctors shall be denied admission to the DDL:

(1) if the doctor does not meet the requirements of subsection (c)(1) of this section prior to September 1, 2006 or subsection (d)(1) of this section on or after September 1, 2006 ;

(2) if the doctor has not completed required training in accordance with §180.23(i) of this title and passed the Division- [ commission ] approved test;

(3) for failing to submit a complete application in accordance with this section;

(4) for having a relevant restriction on their practice (including, but not limited to, prior deletion from the ADL or DDL , or a prior ADL restriction); or

(5) for other activities that [ which ] warrant denial of the application to be on the DDL, [ denial ] such as grounds that would require the Medical Advisor to recommend deletion of a doctor from the ADL or other sanction of a doctor as specified in §180.26 of this title (relating to Doctor and Insurance Carrier Sanctions) or other applicable statutes or rules [ the Statute and Rules ].

(j) [ (g) ] The Division [ commission ] shall notify a doctor of the Commissioner's [ commission's ] approval or denial of the doctor's application to be on the DDL.

(1) Denials shall include the reason(s) for the denial.

(2) Within 15 days after receiving the notice, the doctor may file a response, which addresses the reasons given for the denial.

(A) If a response is not received by the 15th day after the date the doctor received the notice, the denial shall be final effective the following day. No further notice shall be sent.

(B) If a response which disagrees with the denial is timely received, the Division [ commission ] shall review the response and shall notify the doctor of the Commissioner's [ commission's ] final decision. If the final decision is a denial, the Division's [ commission's ] final notice shall provide the reason(s) why the doctor's response did not convince the Commissioner [ commission ] to admit the doctor to the DDL. The denial shall be effective the day following the date the doctor receives notice of the denial unless otherwise specified in the notice.

(3) Notwithstanding other provisions of this subsection, for denials pursuant to subsection (i)(1), (2), (3) and (5) of this section, the doctor may within five working days of receipt of notice, [ §§180.21(f)(1)-(3) of this title (relating to Commission Designated Doctor List), and for denials pursuant to §180.21(f)(5) of this title wherein the subsection of §180.26 of this title relied upon is subsection (b), and within five working days (as defined by §102.3(b) of this title (relating to Computation of Time) after receiving the notice, the doctor may ] file a response which addresses the reason(s) given for the denial.

(A) If a response is not received by the fifth working day after the date the doctor received the notice, the action shall be final effective the following day. No further notice shall be sent.

(B) If a response which disagrees with the action is timely received, the Division [ commission ] shall review the response and shall notify the doctor of the Commissioner's [ commission's ] final decision. A final decision denying the doctor admission to the DDL shall provide the reason(s) why the doctor's response did not convince the Commissioner [ commission ] to grant the doctor admission to the DDL. The denial shall be effective the day following the date the doctor receives notice of the denial unless otherwise specified in the notice.

(4) All notices under this subsection shall be delivered by a verifiable means. Date of receipt for notices shall be determined in accordance with §102.5(d) of this title (relating to General Rules for Written Communication to and from the Commission).

(5) The fact that the Commissioner [ commission ] did not take action to deny or restrict admission to the DDL does not waive the Commissioner's [ commission's ] right to review or further review a doctor and take action at a later date.

(k) [ (h) ] When necessary because the injured employee is temporarily located or is residing out-of-state, the Division [ 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.

(l) [ (i) ] Doctors on the DDL shall provide the Division [ commission ] with updated information within 30 days of a change in any of the information provided to the Division [ commission ] on the doctor's DDL application.

(m) [ (j) ] In addition to the grounds for deletion or suspension from the ADL or for issuing other sanctions against a doctor under §180.26 of this title, the Commissioner [ commission ] shall delete or suspend a doctor from the DDL, or otherwise sanction a designated doctor for noncompliance with requirements of this section or any of the following:

(1) four refusals within a 90-day period, or four consecutive refusals to perform within the required time frames, a Division [ commission ] requested appointment for which the doctor is qualified;

(2) misrepresentation or omission of pertinent facts in medical evaluation and narrative reports;

(3) having a pattern of practice of unnecessary referrals to other health care providers for the assignment of an impairment rating or determination of MMI;

(4) submission of inaccurate or inappropriate reports as a pattern of practice due to insufficient examination and analysis of medical records;

(5) [ willful ] failure to timely respond as a pattern of practice to a request for clarification from the Division [ commission ] regarding an examination [ or failure to timely respond as a pattern of practice ];

(6) assignments of MMI and/or impairment ratings overturned in a contested case hearing, appeals panel decision and/or court decision;

(7) any of the factors listed in subsection (i) [ (f) ] of this section that would allow for denial of admission to the DDL;

(8) failure to [ timely ] successfully complete training and testing requirements as specified in subsections [ (b) or ] (c) or (d) of this section;

(9) failure to notify the Division [ commission field office ] of any disqualifying association, including conflicts caused by the doctor's and the injured employee's association with the same workers' compensation heath care network, within 48 hours of receiving notice of being selected as a designated doctor as a pattern of practice or conducting an examination when there is a disqualifying association;

(10) failure to maintain an active practice or failure to maintain the alternate training requirements outlined in subsection (c)(5) of this section;

(11) self-referring, including referral to another health care provider with whom the designated doctor has a disqualifying association, for treatment or becoming the employee's treating doctor for the medical condition evaluated by the designated doctor; or

(12) other [ significant ] violation of applicable statutes or rules [ Statute and/or Rules ] while serving as a designated doctor.

(n) [ (k) ] The process for notification and opportunity for appeal of a sanction is governed by §180.27 of this title (relating to Sanctions Process/Appeals) except that suspension, deletion, or other sanction relating to the DDL shall be in effect during the pendency of any appeal.

(o) [ (l) ] The Division [ commission ] shall make available through its [ Internet ] website the names of:

(1) doctors on the DDL;

(2) doctors deleted or suspended from the list or otherwise sanctioned by the Commissioner [ commission ] (including a description of the sanction); and

(3) doctors reinstated to the list or whose sanctions were lifted by the Commissioner [ commission ].

(p) [ (m) ] When a doctor is added to the DDL or readmitted following a suspension or deletion, the doctor shall be placed at the bottom of the list for rotation purposes under [ Texas ] Labor Code §408.0041.

[ (n) The following definitions apply to this section:]

[ (1) Active practice--a doctor has an active practice if the doctor maintains routine office hours of at least 20 hours per week for the treatment of patients.]

[ (2) 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 health care provided by the doctor;]

[ (ii) shared investment or ownership interest;]

[ (iii) contracts or agreements that 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;]

[ (v) personal or family relationships; or]

[ (vi) any other financial arrangement that would require disclosure under §180.24 of this title (relating to Financial Disclosure).]

[ (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 a disqualifying association.]

[ (3) 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.]

[ (4) 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.]

§180.22.Health Care Provider Roles and Responsibilities.

(a) Health care providers shall provide reasonable and necessary health care that:

(1) cures or relieves the effects naturally resulting from the compensable injury;

(2) promotes recovery; and/or

(3) enhances the ability of the employee to return to or retain employment.

(b) In addition to the general requirements of this section, health care providers shall timely and appropriately comply with all applicable requirements under the statutes [ Statute ] and rules [ Rules ], including, but not limited to:

(1) reporting required information;

(2) disclosing financial interests;

(3) impartially evaluating an employee's condition; and

(4) correctly billing for health care provided.

(c) The treating doctor is the doctor primarily responsible for the efficient management of health care and for coordinating the health care for an injured employee's (employee) compensable injury. The treating doctor shall:

(1) except in the case of an emergency, approve or recommend all health care rendered to the employee including, but not limited to, medically reasonable and necessary treatment or evaluation provided through referrals to consulting and referral doctors or other health care providers, as defined in this section;

(2) maintain efficient utilization of health care;

(3) communicate with the employee, employer, and insurance carrier (carrier) about the employee's ability to work or any work restrictions on the employee;

(4) make available, upon request, in the form and manner prescribed by the Division [ commission ]:

(A) work release data;

(B) cost and utilization data;

(C) patient satisfaction data, including comorbidity, "Short Form 12" outcome information (sf 12) [ also known as"sf 12") ], and recovery expectations.

(d) The consulting doctor is a doctor who examines an employee or the employee's medical record in response to a request from the treating doctor, the designated doctor, or the Division [ commission ]. The consulting doctor shall:

(1) perform unbiased evaluations of the employee as directed by the requestor including, but not limited to, evaluations of:

(A) the accuracy of the diagnosis and appropriateness of the treatment of the injured employee;

(B) the employee's work status, ability to work, and work restrictions;

(C) the employee's medical condition; and

(D) other similar issues;

(2) submit a [ the ] narrative report [ required by §133.104 of this title (relating to Consultant Medical Reports) ] to the treating doctor, the employee, the employee's representative (if any), the carrier, and[ , ]the Division [ commission ] (if the requestor was the Division [ commission ]);

(3) not make referrals without the approval of the treating doctor and[ , ] when such approval is obtained, ensure that the provider to whom the consulting doctor is making an approved referral knows the identity and contact information of the treating doctor;

(4) initiate or provide treatment only if the treating doctor approves or recommends the treatment; and

(5) become a referral doctor if the doctor begins to prescribe or provide health care to an employee.

(e) The referral doctor is a doctor who examines and treats an employee in response to a request from the treating doctor. The referral doctor shall:

(1) supplement the treating doctor's care; [ and ]

(2) report the employee's status to the treating doctor and the carrier at least every 30 days; and

(3) not make referrals without the approval of the treating doctor and[ , ] when such approval is obtained, ensure that the provider to whom the referral doctor is making an approved referral knows the identity and contact information of the treating doctor.

(f) The Required Medical Examination (RME) doctor is a doctor who examines the employee's medical condition in response to a request from the carrier or the Division pursuant to [ commission under Texas ] Labor Code § §408.004 , 408.0041, or 408.151. The RME doctor shall:

(1) perform unbiased evaluations of the employee as directed by the RME notice issued by the Division [ order including, but not limited to, evaluations of: ]

[ (A) the accuracy of the diagnosis and appropriateness of the treatment of the injured employee;]

[ (B) the employee's work status, ability to work, and work restrictions;]

[ (C) the employee's medical condition; and]

[ (D) other similar issues];

(2) not make referrals without the approval of the treating doctor and when such approval is obtained, ensure that the provider to whom the RME doctor is making an approved referral knows the identity and contact information of the treating doctor;

(3) initiate or provide treatment only if the treating doctor approves or recommends the treatment; and

(4) not evaluate [ the employee's maximum medical improvement (MMI) status or permanent whole body impairment ], except following an examination by a designated doctor, or as otherwise directed by the Division [ commission and when performing such an examination, shall do so in an unbiased manner. ] :

(A) the impairment caused by the employee's compensable injury;

(B) the attainment of maximum medical improvement;

(C) the extent of the employee's compensable injury;

(D) whether the employee's disability is a direct result of the work related injury; or

(E) the ability of the employee to return to work.

(g) A peer reviewer is a health care provider who, at the insurance carrier's request, performs a review of the health care of a workers' compensation claim. The peer reviewer must not have any known conflicts of interest with the injured employee or the health care provider who rendered any health care being reviewed. [ The peer or utilization reviewer evaluates medical and health care services, including evaluation of the qualifications of professional health care practitioners and of health care provided by those practitioners. Peer or utilization reviews generally include the evaluation of the: ]

(1) A peer reviewer who performs a prospective, concurrent, or retrospective review of the medical necessity or reasonableness of health care services is subject to the requirements of Insurance Code Article 21.58A and Chapter 1305 and applicable provisions of the Labor Code. [ accuracy of a diagnosis; ]

(2) A peer reviewer who performs a review for any issue other than medical necessity, such as compensability or an injured employee's ability to return to work, must hold an appropriate professional license in Texas. [ quality of the care provided by a health care practitioner; and/or ]

[(3) the reasonableness and medical necessity of health care provided or proposed to be provided to an employee.]

(h) The designated doctor is a doctor assigned [ appointed ] by the Division [ commission ] to recommend a resolution of a dispute as to the medical condition of an employee. The qualifications and responsibilities of a designated doctor are governed by §180.21 of this title (relating to Division [ Commission ] Designated Doctor List) and other rules [ Rules ] providing for use of a designated doctor.

(i) A member of the Medical Quality Review Panel (MQRP) is a health care provider chosen by the Division's [ commission's ] Medical Advisor under Texas Labor Code §413.0512. All eligibilities, terms, responsibilities, and prohibitions shall be prescribed by contract, and the MQRP members shall serve on the MQRP as prescribed by contract. A provider must meet the performance standards specified in the contract to be eligible for selection by the Medical Advisor to serve on the MQRP. Doctors seeking [ who seek ] membership on the MQRP are required to be on the Division's Approved Doctor List [ ADL ].

§180.28.Peer Review Requirements, Reporting, and Sanctions.

(a) A peer reviewer's report shall document the objective medical findings and evidence-based medicine that supports the opinion and include:

(1) the peer reviewer's name and professional license number;

(2) a summary of the reviewer's qualifications;

(3) a summary of the clinical history; and

(4) an analysis and explanation for the peer review recommendation, including the findings and conclusions used to support the recommendations.

(b) The insurance carrier shall not request subsequent peer reviews regarding the medical necessity of health care for dates of services for which a peer review report has already been issued.

(c) The insurance carrier shall submit a copy of a peer review report to the treating doctor and the health care provider who rendered the health care when the insurance carrier uses the report to negatively impact or reduce income or medical benefits of an injured employee.

(d) A peer reviewer shall maintain copies of all peer review reports written and make them available to the Division upon request. The Division will monitor peer review reports, which may result in the initiation of medical quality reviews.

(e) The Commissioner may impose sanctions on doctors performing peer reviews pursuant to Labor Code §408.0231 and other applicable provisions of the Labor Code and Division rules. The Commissioner may prohibit a doctor from conducting peer reviews for any of the following:

(1) non-compliance with the provisions of §180.22 of this subchapter (relating to Health Care Provider Roles and Responsibilities);

(2) failure to consider all records available for review;

(3) a history of improper or unjustified decisions regarding the medical necessity of health care reviewed; or

(4) any other violation of the Labor Code or Division rules.

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 January 23, 2006.

TRD-200600347

Norma Garcia

General Counsel

Texas Department of Insurance, Division of Workers' Compensation

Earliest possible date of adoption: March 5, 2006

For further information, please call: (512) 804-4288