Part 1. TEXAS DEPARTMENT OF INSURANCE
Chapter 5. PROPERTY AND CASUALTY INSURANCE
Subchapter D. FIRE AND ALLIED LINES INSURANCE
Division 4. SMALL INSURER AND NEW INSURER RATE FILING REQUIREMENTS
(Editor's note: The text of the following section proposed for repeal will not be published.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 or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Department of Insurance proposes the repeal of Division 4, §5.3301, concerning rate filing requirements under Insurance Code Article 5.142 for small and new insurers writing residential property insurance. The repeal of this division is necessary because pursuant to §5.3301(i) and Insurance Code Article 5.142 §17, the section expired on December 1, 2004. The Department identified this division for repeal as part of the Department's ongoing review of existing rules pursuant to Government Code §2001.039.
J'ne Byckovski, Chief Actuary, Property and Casualty Division, has determined that during the first five years that the proposed repeal is in effect, there will be no fiscal impact on state or local government. There will be no measurable effect on local employment or the local economy as a result of the proposal.
Ms. Byckovski has also determined that for each year of the first five years that the proposed repeal is in effect, the anticipated public benefit will be the removal of obsolete and potentially confusing provisions from the Texas Administrative Code. There is no anticipated economic cost to persons who are required to comply with the proposed repeal. There is no anticipated difference in cost of compliance between small and large businesses.
To be considered, written comments on the proposal must be submitted no later than 5:00 p.m. on July 30, 2007 to Gene C. Jarmon, General Counsel and Chief Clerk, Mail Code 113-2A, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. An additional copy of the comment must be simultaneously submitted to J'ne Byckovski, Chief Actuary, Property and Casualty Division, Mail Code 105-5F, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. Any request for a public hearing must be submitted separately to the Office of Chief Clerk before the close of the public comment period. If a hearing is held, written and oral comments presented at the hearing will be considered.
The repeal of Division 4, §5.3301 is proposed pursuant to Insurance Code §36.001, which provides that the Commissioner of Insurance may adopt any rules necessary and appropriate to implement the powers and duties of the Texas Department of Insurance under the Insurance Code and other laws of this state.
No statute is affected by the proposal.
§5.3301.Rate Filing Requirements Under Article 5.142 for Small and New Insurers Writing Residential Property Insurance.
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 June 18, 2007.
TRD-200702508
Gene C. Jarmon
General Counsel and Chief Clerk
Texas Department of Insurance
Earliest possible date of adoption: July 29, 2007
For further information, please call: (512) 463-6327
(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 or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Department of Insurance proposes repeal of Subchapter O, §5.9500, defining small and medium-sized insurers as referenced in Insurance Code Article 5.101, concerning the Flexible Rating Program for Certain Insurance Lines. The repeal of this subchapter is necessary because the expiration of Article 5.101 on December 1, 2004, obviates the need for the subchapter. This section defines the terms "small and medium-sized insurers" and "lines of property and casualty insurance" solely for the purpose of Article 5.101. The Department identified this subchapter for repeal as part of the Department's ongoing review of existing rules pursuant to Government Code §2001.039.
J'ne Byckovski, Chief Actuary, Property and Casualty Division, has determined that during the first five years that the proposed repeal is in effect, there will be no fiscal impact on state or local government. There will be no measurable effect on local employment or the local economy as a result of the proposal.
Ms. Byckovski has also determined that for each year of the first five years that the proposed repeal is in effect, the anticipated public benefit will be the removal of obsolete and potentially confusing provisions from the Texas Administrative Code. There is no anticipated economic cost to persons who are required to comply with the proposed repeal. There is no anticipated difference in cost of compliance between small and large businesses.
To be considered, written comments on the proposal must be submitted no later than 5:00 p.m. on July 30, 2007 to Gene C. Jarmon, General Counsel and Chief Clerk, Mail Code 113-2A, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. An additional copy of the comment must be simultaneously submitted to J'ne Byckovski, Chief Actuary, Property and Casualty Division, Mail Code 105-5F, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. Any request for a public hearing must be submitted separately to the Office of Chief Clerk before the close of the public comment period. If a hearing is held, written and oral comments presented at the hearing will be considered.
The repeal of Subchapter O, §5.9500 is proposed pursuant to Insurance Code §36.001, which provides that the Commissioner of Insurance may adopt any rules necessary and appropriate to implement the powers and duties of the Texas Department of Insurance under the Insurance Code and other laws of this state.
No statute is affected by the proposal.
§5.9500.Definition of Small and Medium-Sized Insurers as Referenced in Article 5.101 of the Insurance Code.
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 June 18, 2007.
TRD-200702509
Gene C. Jarmon
General Counsel and Chief Clerk
Texas Department of Insurance
Earliest possible date of adoption: July 29, 2007
For further information, please call: (512) 463-6327
(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 or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Department of Insurance proposes the repeal of Subchapter Q, §5.9700, concerning the fee schedule for the Department's statistical agent, Acxiom Corporation. This subchapter, which provides the fee schedule for this statistical agent contractor to provide collection, maintenance, and reporting of the statistical data reported by insurance companies under each of the Department's statistical plans, is not necessary because the Department no longer contracts with this statistical agent. Insurance Code §38.206, which allows statistical agents to collect fees, further obviates the need for the subchapter. The Department identified this subchapter for repeal as part of the Department's ongoing review of existing rules pursuant to Government Code §2001.039.
Gary Gola, Director, Data Services, Property and Casualty Division, has determined that during the first five years that the proposed repeal is in effect, there will be no fiscal impact on state or local government. There will be no measurable effect on local employment or the local economy as a result of the proposal.
Mr. Gola has also determined that for each year of the first five years that the proposed repeal is in effect, the anticipated public benefit will be the removal of obsolete and potentially confusing provisions from the Texas Administrative Code. There is no anticipated economic cost to persons who are required to comply with the proposed repeal. There is no anticipated difference in cost of compliance between small and large businesses.
To be considered, written comments on the proposal must be submitted no later than 5:00 p.m. on July 23, 2007 to Gene C. Jarmon, General Counsel and Chief Clerk, Mail Code 113-2A, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. An additional copy of the comment must be simultaneously submitted to Gary Gola, Director, Data Services, Property and Casualty Division, Mail Code 105-5S, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. Any request for a public hearing must be submitted separately to the Office of Chief Clerk before the close of the public comment period. If a hearing is held, written and oral comments presented at the hearing will be considered.
The repeal of Subchapter Q, §5.9700 is proposed pursuant to Insurance Code §36.001, which provides that the Commissioner of Insurance may adopt any rules necessary and appropriate to implement the powers and duties of the Texas Department of Insurance under the Insurance Code and other laws of this state.
The proposed repeal affects the following statute: Insurance Code §38.206.
§5.9700.Fee Schedule.
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 June 18, 2007.
TRD-200702510
Gene C. Jarmon
General Counsel and Chief Clerk
Texas Department of Insurance
Earliest possible date of adoption: July 29, 2007
For further information, please call: (512) 463-6327
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Insurance or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Department of Insurance proposes the repeal of Subchapter R, §§5.9800 - 5.9811, concerning temporary rate reductions for certain lines of liability insurance affected by tort reform legislation enacted by the 73rd and 74th Legislatures. The repeal of this subchapter is necessary because the need for the rules has been eliminated. The rules establish the methodology to be followed and provide the loss and ALAE reduction percentages to be used to determine the rate reduction factors for certain lines or sublines of liability insurance affected by the tort reforms such that savings from the tort reforms would be passed to all insurers' policyholders on a prospective basis. The final loss and ALAE reduction percentages were applicable to policies effective on or after January 1, 2000, but before January 1, 2001. The repeal of Insurance Code Article 5.131, effective April 1, 2007, requiring mandatory rate reductions, further obviates the need for this subchapter. The Department identified the subchapter for repeal as part of the Department's ongoing review of existing rules pursuant to Government Code §2001.039.
J'ne Byckovski, Chief Actuary, Property and Casualty Division, has determined that during the first five years that the proposed repeal is in effect, there will be no fiscal impact on state or local government. There will be no measurable effect on local employment or the local economy as a result of the proposal.
Ms. Byckovski has also determined that for each year of the first five years that the proposed repeal is in effect, the anticipated public benefit will be the removal of obsolete and potentially confusing provisions from the Texas Administrative Code. There is no anticipated economic cost to persons who are required to comply with the proposed repeal. There is no anticipated difference in cost of compliance between small and large businesses.
To be considered, written comments on the proposal must be submitted no later than 5:00 p.m. on July 30, 2007 to Gene C. Jarmon, General Counsel and Chief Clerk, Mail Code 113-2A, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. An additional copy of the comment must be simultaneously submitted to J'ne Byckovski, Chief Actuary, Property and Casualty Division, Mail Code 105-5F, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. Any request for a public hearing must be submitted separately to the Office of Chief Clerk before the close of the public comment period. If a hearing is held, written and oral comments presented at the hearing will be considered.
The repeal of Subchapter R, §§5.9800 - 5.9811 is proposed pursuant to Insurance Code §36.001, which provides that the Commissioner of Insurance may adopt any rules necessary and appropriate to implement the powers and duties of the Texas Department of Insurance under the Insurance Code and other laws of this state.
No statute is affected by the proposal.
§5.9800.Purpose and Scope.
§5.9801.Definitions.
§5.9802.Application to Insurers and Monitoring of Insurers.
§5.9803.Rulemaking Procedures for Reductions in Rates.
§5.9804.Loss and ALAE Reduction Percentages by Line.
§5.9805.Calculation and Application of Rate Reduction Factor.
§5.9806.Duration.
§5.9807.Filing Requirements.
§5.9808.Administrative Relief.
§5.9809.Declaration of Inapplicability.
§5.9810.Appeal of Rate Reduction and Severability.
§5.9811.Loss and ALAE Reduction Percentages Applicable in Specified Years.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on June 18, 2007.
TRD-200702511
Gene C. Jarmon
General Counsel and Chief Clerk
Texas Department of Insurance
Earliest possible date of adoption: July 29, 2007
For further information, please call: (512) 463-6327
Chapter 120. COMPENSATION PROCEDURE--EMPLOYERS
The Texas Department of Insurance, Division of Workers' Compensation proposes amendments to §120.2 concerning employer's first report of injury and notice of injured employee rights and responsibility. These amendments are necessary to implement Labor Code §409.005 and to provide for the distribution of the notice of employee rights and responsibilities contemplated by Labor Code §404.109.
The proposed amendments to §120.2 are necessary to clarify that the requirement for the first report of injury in regard to an injury is triggered when the employee is absent from work for more than one day due to the injury, to provide for the distribution of the Notice of Injured Employee Rights and Responsibilities (Notice of Rights and Responsibilities) prepared by the Office of Injured Employee Counsel (OIEC) pursuant to §404.109, and to replace notice language in the rule with a reference to the form number for the notice prepared by OIEC that contains current information, and to update enforcement language. Other changes update legal references and make grammatical corrections.
The proposal changes all references from "commission" to "Division." The proposed amendment to subsection (a) modifies the language of the subsection to improve its clarity and readability; the amendment does not change the substantive requirements under this subsection. The proposed amendments to subsection (b) clarify what the employer's first report of injury shall contain. This includes the information required by §120.1(a), any additional information prescribed by the Division, and the information necessary for an insurance carrier to electronically transmit a first report of injury to the Division.
The proposed amendment to subsection (c) clarifies that it is the employee's absence from work for more than one day due to an injury that triggers the employer's requirement to file with the carrier a first report of injury. The proposed amendment to subsection (d) clarifies the requirement that an employer provide the employee a copy of the notice of rights and responsibilities at the time the written report of injury is provided to the employee. The specific language of the notice is removed from §120.2 and replaced with a reference to the Notice of Rights and Responsibilities. The proposed amendment to subsection (e) adds the requirement that if the first report of injury is not required to be filed, the Notice of Rights and Responsibilities must still be provided to the injured employee no later than the eighth day after the employer receives notice of the injury. The proposed amendment to subsection (f) notes that the employer should maintain a record of the date the Notice of Rights and Responsibilities is given to the employee and a record of the date the report of injury is filed with the insurance carrier. The requirement that the employer maintain a record of the date the report is filed with the insurance carrier is not a substantive change, as this requirement is present in the currently enacted version of §120.2. The proposed amendment to subsection (g) modifies the language of the subsection to improve its clarity and readability; the amendment does not change the substantive requirements under this subsection. Proposed subsection (h) notes that failure to comply with this section is an administrative violation, but removes language regarding penalties to comply with amendments to the Labor Code that remove specific classification of such a violation.
Brent Hatch, Policy Advisor, has determined that for each year of the first five years the proposed amendments 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 amended rule. 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 amendments are in effect, the public benefit anticipated as a result of the proposed amended section will be notice to the employee of the injured employee's rights and responsibilities under the Texas worker's compensation system as set out in the Notice of Injured Employee Rights and Responsibilities in the Texas Workers' Compensation System (Notice of Rights and Responsibilities) prepared by the Office of Injured Employee Counsel.
Based on the amendments to the rule, an employer that is not required to file a report based on less than one day of lost time, but is still required to provide the injured employee with a copy of the Notice of Rights and Responsibilities, will have an additional cost not present under the currently enacted version of §120.2. The probable economic cost to persons required to comply with subsection (e) is estimated to be less than 90 cents per workplace injury, disease, or death. The cost estimate is based on the consideration that the Notice of Rights and Responsibilities can be copied for approximately 10 cents per page and, if hand delivery at work is not available, mailed to the employee at the additionally estimated cost of 15 cents per envelope and 41 cents postage. The cost per employer of providing this publication is based on the number of injuries that occur at the workplace.
For an employer that is required to file a report based on more than one day of lost time, the additional cost will be approximately 20 cents. This cost estimate is based on the consideration that the Notice of Rights and Responsibilities can be copied for approximately 10 cents per page and delivered with the report. There is no additional cost for delivery for employers that provide the publication to injured employees with the report because the currently enacted version of the rule requires a copy of the first report of injury to be delivered to an injured employee. There will be no adverse economic impact on small and micro businesses. There is no difference in the cost of compliance per claim between small and large businesses. It is neither legal nor feasible to waive the requirements of the section for small or micro-businesses because compliance with the requirements of Labor Code §409.005 is mandatory for all employers.
To be considered, written comments on the proposal must be received no later than 5:00 p.m. on July 30, 2007. Comments may be submitted via the Internet through the Division's Internet website at http://www.tdi.state.tx.us/wc/rules/proposedrules/toc.html or by mailing or delivering your comments to Victoria Ortega, Legal Services, MS-4D, Texas Department of Insurance, Division of Workers' Compensation, 7551 Metro Center Drive, Suite 100, Austin, Texas 78744. Any request for a public hearing must be submitted separately to the Office of General Counsel by 5:00 p.m. on July 30, 2007. If a hearing is held, written and oral comments presented at the hearing will be considered.
The amendments are proposed under the Texas Labor Code §§404.109, 409.005, 402.00111, and 402.061. Section 404.109 calls for the Public Counsel to prepare and provides for the Commissioner of Workers' Compensation and the Commissioner of Insurance to distribute by rule a notice of injured employee rights and responsibilities. Section 409.005 provides the procedure for filing a report of injury, the format to be used, and authorizes the adoption of rules regarding the information that must be included in the report and implementation of electronic filing of the reports. Section 402.00111 provides that the Commissioner of Workers' Compensation shall exercise all executive authority, including rulemaking authority, under the Labor Code. 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: Labor Code §404.109 and §409.005.
§120.2.Employer's First Report of Injury and Notice of Injured Employee Rights and Responsibilities .
(a) The employer shall report to the employer's insurance carrier
each death, each occupational disease of which the employer has received notice
of injury or has knowledge, and each injury that results in more than one
day's absence from work for the injured employee. As used in this section,
the term
"knowledge"
includes
[
means
] receipt
of written or
oral
[
verbal
] information regarding diagnosis
of an occupational disease, or the diagnosis of an occupational disease through
direct examination or testing by a doctor employed by the employer.
(b)
[
The report shall contain the information required
by §120.1(a) of this title (relating to Employer's Record of Injuries),
any additional information prescribed by the commission in accordance with
the Texas Labor Code, §402.042(b)(11), and shall contain the information
necessary for an insurance carrier to electronically transmit a first report
of injury to the commission.
] The
Division
[
commission
] shall prescribe the form, format, and manner of the
employer's
first
report
of injury (Report)
.
The report shall contain:
(1) the information required by §120.1(a) of this title (relating to Employer's Record of Injuries);
(2) any additional information prescribed by the Division in accordance with the Labor Code §402.00128(b)(10); and
(3) the information necessary for an insurance carrier to electronically transmit a first report of injury to the Division.
(c) The report shall be filed
with the insurance carrier
not later than the eighth day after
having received notice of
or having
[
the receipt of notice of injury or the acquisition of
] knowledge of an occupational disease, or
death, or not later than
the eighth day after the employee's absence
from work
for
more than one day [
from work
] due to
a work-related
injury
[
or death
]. For purposes of this section, a report is filed when
personally delivered, mailed, reported via tele-claims, electronically submitted
,
or sent via facsimile. [
The employer shall maintain a record
of the date the report of injury is filed with the insurance carrier.
]
(d) The employer shall provide a written copy of the report and a written copy of the Notice of Injured Employee Rights and Responsibilities in the Texas Workers' Compensation System (Notice of Rights and Responsibilities) to the injured employee , or to the employee's last known mailing address, at the time the report is filed with the insurance carrier. The Notice of Rights and Responsibilities shall be in English and Spanish, or in English and any other language common to the employee. The written report may be the report specified in subsection (b) of this section , or at a minimum shall contain the information listed in §120.1(a) of this title (relating to Employer's Record of Injuries).
(e) The Notice of Rights and Responsibilities may be obtained from:
(1) the department's website at www.tdi.state.tx.us;
(2) the Office of Injured Employee Counsel's website at www.oiec.state.tx.us; or
(3) Texas Department of Insurance, Division of Workers' Compensation, 7551 Metro Center Drive, Suite 100, Austin, Texas, 78744-1609.
(f) If a first report of injury is not required to be filed, the employer must still provide the injured employee with a copy of the Notice of Rights and Responsibilities. The Notice of Rights and Responsibilities shall be provided by the employer not later than the eighth day after having received notice of or having knowledge of an injury to the employee. The Notice of Rights and Responsibilities may be personally delivered, mailed, or sent via facsimile.
[(e) The employer shall also provide the employee a summary of rights and responsibilities at the time the report required in subsection (c) of this section is filed with the insurance carrier. The text for the summary shall be in English and Spanish, or in English and any other language common to the employee. This does not preclude the employer or carrier from providing the employee with additional information but such information must be separate from and in addition to the text contained in this subsection and may not infer that the additional information is being provided or required by the Commission. The following English text and the Spanish text provided by the commission must be used without any additional words or changes.]
[Figure: 28 TAC §120.2(e)]
(g)
[
(f)
] The employer shall maintain
a record of the date the copy of the report of injury and the
date the
Notice of Rights and Responsibilities
[
summary of rights and responsibilities
] were provided to the employee.
The employer shall also maintain
a record of the date the report of injury is filed with the insurance carrier.
(h)
[
(g)
] If
the insurance carrier
has not received the
[
a
] report [
has not been received
by the insurance carrier
], the employer has the burden of proving that
the report was filed within the required time frame. If the carrier receives
the report by mail, it will be presumed that the report was mailed four days
prior to the date received by the carrier. The employer has the burden of
proving that good cause exists if the employer failed to timely file or provide
the report.
(i)
[
(h)
]
A party who fails to comply
with this section commits an administrative violation.
[
Failure
of an employer to file the report as required with the insurance carrier or
to provide a copy of the report as required to the employee without good cause
is subject to a penalty not to exceed $500, pursuant to Texas Labor Code, §409.005,
and may be subject to a penalty not to exceed $10,000 pursuant to Texas Labor
Code, §415.021, for repeated violation. An employer who fails to file
the report as required by this rule and by the Texas Labor Code, §409.005,
waives the right to reimbursement of voluntary benefits even if no administrative
penalty is assessed.
]
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 June 14, 2007.
TRD-200702424
Norma Garcia
General Counsel
Texas Department of Insurance, Division of Workers' Compensation
Earliest possible date of adoption: July 29, 2007
For further information, please call: (512) 804-4715
Subchapter D. TREATMENT PLANNING
(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 the repeal of §137.300, Required Treatment Planning.
Since publication of the adopted disability management rules, workers' compensation system participants, including insurance carriers, health care providers, and associations, have expressed the need for additional time to establish systems and processes to appropriately address required treatment planning. System participants also expressed a need for additional time to communicate and develop treatment planning parameters that are mutually acceptable.
Due to a concern that system participants would not be able to initiate the treatment planning requirements without some lapses in care for the injured employees, the Division proposes repeal of the requirements. The repeal of this section will allow the Division time to address concerns raised by system participants, and it will allow the Division the opportunity to work further with system participants to develop required treatment planning guidelines that effectively achieve the goals and intent of the Legislature in Labor Code §413.011. Treatment planning is an integral part of disability management and a pilot treatment planning program will be initiated to allow the Division to work with system participants in the development of effective parameters for required treatment planning and to prepare their processing systems and business practices.
Jaelene Fayhee, Policy and Research, Executive Deputy Commissioner, Division of Workers' Compensation, 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. The fiscal impact on the Division is likely to be minimal since the general administration and monitoring requirements for the system remain unchanged. There will be no measurable effect on local employment or the local economy as a result of the proposed repeal.
Ms. Fayhee 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 additional time to establish systems and processes to implement treatment planning.
There are no anticipated costs to system participants as a result of the proposed repeal because the rule being repealed never became effective. However, any potential savings anticipated with the previous adoption of §137.300 will not accrue to system participants at this time. Although overall savings are still anticipated with the implementation of §§137.1, 137.10, and 137.100, it is difficult to extract a specific impact for the repeal of §137.300 due to the overlapping relationships of these disability management rules. Additionally, there may be some realignment of costs to system participants as the treatment planning process identified in §137.300 is supplanted by the use of treatment guidelines in §137.100 and the preauthorization, concurrent review, and voluntary certification process identified in §134.600.
There is no difference in the cost of compliance between a large and small or micro-business as a result of the proposed repeal. Based on the cost of labor per hour, there is no disproportionate economic impact on small or micro-businesses. Economic costs to injured employees are not anticipated.
To be considered, written comments on the proposal must be received no later than 5:00 p.m. on July 30, 2007. Comments may be submitted via the Internet through the Division's Internet website at http://www.tdi.state.tx.us/wc/rules/proposedrules/toc.html or by mailing or delivering your comments to Victoria Ortega, Legal Services, MS-4D, Texas Department of Insurance, Division of Workers' Compensation, 7551 Metro Center Drive, Suite 100, Austin, Texas 78744. Any request for a public hearing must be submitted separately to the Office of General Counsel, MS-1, Texas Department of Insurance, Division of Workers' Compensation, 7551 Metro Center Drive, Austin, Texas 78744 before the close of the public comment period. If a hearing is held, written and oral comments presented at the hearing will be considered.
The repeal is proposed under the Labor Code §§413.011(e), 413.011(g), 401.011, 413.021, 409.005, 408.023, 408.025, 413.017, 413.018, 413.013, 408.021, 402.00111, and 402.061. Section 413.011(e) provides that the Commissioner by rule shall adopt treatment guidelines and return-to-work guidelines and may adopt individual treatment protocols with specific criteria for such adoption. Section 413.011(g) provides that the Commissioner may adopt rules relating to disability management that are designed to promote appropriate health care at the earliest opportunity after the injury to maximize injury healing and improve stay-at-work and return-to-work outcomes through appropriate management of work-related injuries or conditions. Section 401.011 contains definitions used in the Texas workers' compensation system (in particular, §401.011(18)(a), the definition of "evidence-based medicine," §401.011(22)(a), the definition of "health care reasonably required" and §401.011(42), the definition of "treating doctor"). Section 413.021 requires an insurance carrier to provide the employer with return-to-work coordination services as necessary to facilitate an employee's return to employment. Section 409.005 provides the procedure for filing a report of injury, the format to be used, authorizes the adoption of rules regarding the information that must be included in the report, and requires the employer to notify the employee, the treating doctor, and the insurance carrier of the existence or absence of opportunities for modified duty or a modified duty return-to-work program available through the employer. Section 408.023 requires the Division to develop a list of doctors licensed in Texas who are approved to provide health care services under the Workers' Compensation Act and authorizes the Commissioner to adopt rules to define the role of the treating doctor and to specify outcome information to be collected for a treating doctor. Section 408.025 authorizes the Commissioner by rule to adopt requirements for reports and records, and provides that the treating doctor is responsible for maintaining efficient utilization of health care. Section 413.017 provides that certain medical services are presumed reasonable. Section 413.018 provides that the commissioner by rule shall provide for the periodic review of medical care provided in claims in which guidelines for expected or average return to work time frames are exceeded and the Division shall review the medical treatment provided in a claim that exceeds the guidelines and may take appropriate action to ensure that necessary and reasonable care is provided. Section 413.013 authorizes the Commissioner by rule to establish programs for prospective, concurrent, and retrospective review and resolution of disputes regarding health care treatments and services, for the systematic monitoring of the necessity of treatments administered and fees charged and paid for medical treatments to ensure that the medical policies or guidelines are not exceeded, to detect practices and patterns by insurance carriers, and to increase the intensity of review for compliance with the medical policies or fee guidelines. Section 408.021 provides that an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed (specifically health care that enhances the ability of the employee to return to or retain employment) and provides that, except in an emergency, all health care must be approved or recommended by the employee's treating 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 that the Commissioner of workers' compensation has the authority to adopt rules as necessary to implement and enforce the Texas Workers' Compensation Act.
The following sections are affected by this proposal: Labor Code, §§413.011(e), 413.011(g), 401.011, 413.021, 409.005, 408.023, 408.025, 413.017, 413.018, 413.013, and 408.021.
§137.300.Required Treatment Planning.
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 June 18, 2007.
TRD-200702495
Norma Garcia
General Counsel
Texas Department of Insurance, Division of Workers' Compensation
Earliest possible date of adoption: July 29, 2007
For further information, please call: (512) 804-4715