Adopted Sections
An agency may take final action on a section 30 days after a proposal has been 
published in the Texas Register. The section becomes effective 20 days after the 
agency files the correct document with the Texas Register, unless a later date 
is specified or unless a federal statute or regulation requires implementation 
of the action on shorter notice.
If an agency adopts the section without any changes to the proposed text, only 
the preamble of the notice and statement of legal authority will be published. 
If an agency adopts the section with changes to the proposed text, the proposal 
will be republished with the changes.
TITLE 22. EXAMINING BOARDS
Part XXI. Texas State Boards of Examiners of Psychologists
Chapter 465. Rules of Practice
22 TAC sec.465.27
The Texas State Board of Examiners of Psychologists adopts new sec.465.27, 
concerning projective techniques without changes to the proposed text as 
published in the October 1, 1991, issue of the Texas Register (16 TexReg 5379).
Psychologists receive an extensive amount of training in their doctoral programs 
to use projective techniques. Clarification was needed to inform the public that 
these techniques are the practice of psychology.
This rule will put the public on notice that projective techniques are the 
practice of psychology and require licensure as a psychologist to use.
Comments were received regarding adoption of the new section. The commenters 
felt that the proposed rule limits the scope of another license in that some 
licensed professional counselors have been trained and are qualified to do 
evaluation techniques of this kind if they are not used in the assessment of 
personality. All psychologists do not necessarily receive extensive training in 
projective techniques in their doctoral programs. There would be a measureable 
effect on state and local government, small businesses, and other individuals in 
other mental health fields.
The Texas Association for Counseling and Development and the Texas State Board 
of Examiners for Professional Counselors commented against adoption of the new 
section.
The Texas State Board of Examiners of Psychologists disagree with the comments 
because psychologists are required to practice within their areas of expertise 
and training. Those psychologists who have received extensive training in 
projective techniques in their doctoral programs in psychology use these 
techniques in their practices. Master's programs do not provide adequate 
training to prepare a person to utilize projective techniques.
The new section is adopted under Texas Civil Statutes, Article 4512c, which 
provide the Texas State Board of Examiners of Psychologists with the authority 
to make all rules not inconsistent with the Constitution and laws of this state, 
which are reasonably necessary for the proper performance of its duties and 
regulations of proceedings before it.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on November 20, 1991.
TRD-9114598
Patricia S. Bizzell Tweedy
Executive Director
Texas State Board of Examiners of Psychologists
Effective date: December 11, 1991
Proposal publication date: October 1, 1991
For further information, please call: (512) 835-2036
       
Part XXIII. Texas Real Estate Commission
Chapter 535. Provisions of the Real Estate License Act
Licensed Real Estate Inspectors
22 TAC sec.535.205
The Texas Real Estate Commission adopts new sec.535.205, concerning real estate 
inspectors licensed under prior law, with changes to the proposed text as 
published in the September 20, 1991, issue of the Texas Register  (16 TexReg 
5176).
The new section is adopted to implement transitional provisions of Senate Bill 
432, 72nd Legislature, 1991. The new section clarifies the status of real estate 
inspectors licensed under the prior law; the inspectors may continue to practice 
and may apply for a license under Senate Bill 432 immediately or in connection 
with the renewal of an existing license. The section addresses fees, experience 
verification, and education required for a new license. Those previously 
licensed inspectors who cannot meet either the education or experience 
requirement will be issued a transitional license which expires after one year 
and cannot be renewed.
At the suggestion of the Texas Real Estate Inspector Committee, an advisory 
committee appointed by the commission under Senate Bill 432, sec.535.205 was 
modified to clarify that the experience required for an inspector to receive a 
new license or to sponsor inspectors-in-training or apprentices will be measured 
in accordance with the provisions of sec.535.212, which provides specific 
guidelines for multi-unit properties, oral inspection reports, and inspections 
limited to either structural items or equipment and systems. No other comments 
were received regarding adoption of the new section.
The new section is adopted under Texas Civil Statutes, Article 6573a, sec.5(h), 
which provide the Texas Real Estate Commission with the authority to make and 
enforce all rules and regulations necessary for the performance of its duties.
sec.535.205. Inspectors Licensed under Prior Law.
(a) A person licensed as a real estate inspector on the effective date of Texas 
Civil Statutes, Article 6573a, sec.23 (the Act), may continue to act as a real 
estate inspector until the person's license expires or is suspended or revoked 
by the commission. The person is eligible to obtain an inspector license under 
the Act if the person does the following:
(1) applies to the commission for issuance of an inspector license prior to the 
expiration of the current license;
(2) pays a license renewal fee of $50 if the application is filed in connection 
with a renewal of the current license;
(3) provides proof on a form approved by the commission that the person has 
completed 75 real estate inspections in the 12 months before filing the 
application; and
(4) provides evidence satisfactory to the commission that the person has 
successfully completed 38 classroom hours of core real estate inspection courses 
as defined by the Act in addition to any courses required for an original 
license prior to the effective date of the Act.
(b) The commission adopts by reference Inspection Log REI 1-1 approved by the 
commission in 1991. This form is published by and available from the Texas Real 
Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
(c) If a person licensed as an inspector on the effective date of the Act 
applies for a license more than 30 days prior to the expiration of an existing 
license and meets all requirements for issuance of an inspector license under 
this section and the Act, the commission shall issue a license valid until the 
expiration date of the current license. If the application is filed in 
connection with a renewal of license and all requirements have been met for 
issuance of a license under the Act, the commission shall issue a license valid 
for one year.
(d) If an applicant fails to satisfy a requirement under this section for 
issuance of a license in connection with a renewal of a current license, the 
commission shall issue a transitional license valid for 12 months. A 
transitional license may not be renewed. A person holding a transitional license 
is eligible to receive an inspector license under the Act if the person 
completes 75 inspections during the 24-month period prior to the expiration of 
the transitional license and satisfies educational requirements set by the Act.
(e) A person licensed as an inspector on the effective date of the Act may not 
sponsor an apprentice inspector or an inspector-in-training until the person has 
certified to the commission that the person has performed at least 200 real 
estate inspections, has performed inspections as a real estate inspector for at 
least 15 months, and has successfully completed 38 classroom hours of core real 
estate courses as provided in this section.
(f) Inspections required to obtain a license or to sponsor apprentices or 
inspectors-in-training shall be measured in accordance with the provisions of 
sec.535.212 of this title (relating to Education and Experience Requirements for 
a License).
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on November 20, 1991.
TRD-9114586
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Effective date: December 11, 1991
Proposal publication date: September 20, 1991
For further information, please call: (512) 465-3900
       
TITLE 28. INSURANCE
Part II. Texas Workers' Compensation Commission
Chapter 42. Medical Benefits
Subchapter B. Medical Cost Evaluation
28 TAC sec.42.105
The Executive Director of the Texas Workers' Compensation Commission adopts an 
amendment to sec.42.105, concerning the medical fee guideline, with changes to 
the proposed text as published in the July 16, 1991, issue of the Texas Register  
(16 TexReg 3933). The purpose of the amendment is to change the commission's 
address, and to make clear that the guideline used to pay for medical services 
and durable medical equipment provided to persons who were injured prior to 
January 1, 1991, shall be the same as that adopted by the commissioners of the 
Texas Workers' Compensation Commission, under 28 TAC sec.134. 201.
The amendment changes the address of the commission from the old Riverside Drive 
location to the current Southfield Building location. It makes clear that copies 
of the guideline must be purchased from the Reprographics Department of the 
commission. Further, to avoid confusion, it makes clear that the incorporated 
guideline in this section is to be the same as that adopted by the commissioners 
of the commission, so that the same guideline will be used for all services 
rendered to injured workers regardless of the date of injury. The guideline 
incorporated herein shall be used to calculate payment for services and durable 
medical equipment provided on and after August 1, 1991, the effective date of 
this section.
The guidelines referred to may be purchased from, or inspected at the address of 
the commission that is set forth in the amended section.
A slight change has been added to proposed subsection (b) of the amendment. The 
change includes a reference to sec.134.201 of this title (relating to Medical 
Fee Guideline), which is the section under which the commissioners may adopt a 
medical fee guideline. In addition, a change has been added to subsection (d) of 
this section indicating that the rule rendered will apply to medical services 
and durable equipment prescribed on or after the effective date of the section.
Concerning the proposed section, one commenter argued that the executive 
director of the commission has no power to make rules, and that only the 
commission can promulgate this section. The commenter further argued that the 
commission could not delegate power to the executive director, and such 
delegation, applied to rule-making power, would be void. The agency responds 
that sec.17.12(b) is a legislative creation of a mandatory delegation to the 
executive director with respect to "appropriate powers" to administer both "old" 
law and the Crime Victims Compensation laws. An appropriate power to administer 
is the power to make rules. As further expression of legislative intent, it is 
noted that the commissioners expressly could not make rules with an effective 
date prior to January 1, 1991; and "old law" rules that needed to be amended 
between April 1, l990, and December 31, 1990, could not have been amended by the 
commissioners. Section 15.41 of the bill which included the new Act amended the 
Crime Victim's Compensation Act to confer all powers, duties, and 
responsibilities of the old Industrial Accident Board onto the executive 
director. Because sec.17.12(b) of the Act equates the executive director's 
administration of old law with administration of the Crime Victims' program, it 
is a clear indication of legislative intent to confer upon the executive 
director the full range of powers to administer old law, including making rules. 
Section 2.09(a) gives authority to the commissioners to carry out the new law 
only. The agency therefore disagrees with the commenter's assertion.
Another commenter commented on the August 1, 1991 guideline currently in effect 
under sec.134.200, and proposed for adoption under sec.134.201. The commenter 
noted that, with respect to ground rules governing reimbursement of Certified 
Registered Nurse Anesthetists, that allowance of reimbursement to CRNAs 
supervised by "licensed health care providers" was wrong, because it would allow 
optometrists and other not familiar with anesthesiology to supervise CRNAs. The 
commenter also strongly supported the differential in reimbursement between 
CRNAs and anesthesiologists. The commenter found support for the differential in 
the different levels of training experienced by these two types of 
practitioners. The commenter asked that the differential of payment be lowered 
to 70% of that given to an anesthesiologist, rather than the 80% currently 
incorporated into the guideline. The commission disagrees that this section 
should be changed. First of all, all the section amendments allow is that 
whatever guideline is adopted by the commissioners for new law purposes should 
be the same one used for old law. This section incorporates only an adopted 
guideline under sec.134. 201; this section does not propose a guideline. A 
guideline has already been adopted under sec.34.200; a guideline under 
sec.134.201 has been proposed for comment, as has a repeal of sec.134.200. 
Comments have been received as to the substance of both guidelines under the 
section. Substantive changes to the guideline will be made through the 
administrative process as sec.134.201. Because the commenter did not comment as 
to matters of substance on the proposed amendments in this particular section, 
no changes will be made.
Another commenter voiced opposition to the August 1, 1991, guideline as applied 
to physical therapists. The commenter asked that the staff "correct" the medical 
fee guideline and make it a workable document, and postpone implementation of 
the August 1, 1991, guideline for old law cases until this was done. The 
commenter incorporated, by reference only, all comments made by the Texas 
Physical Therapy Association on sec.134.201 of this title (relating to Medical 
Fee Guideline). In summary, those comments were that the guideline should be 
changed to eliminate requirement of approval of the physical therapy treatment 
plan by the treating doctor; that the guideline should be changed so that re-
examination requirements are consistent with sec.133.101 of this title (relating 
to Initial Medical Report); that "days of week of treatment provided" should be 
changed to "dates of treatment"; that the limit of four, on any combination of 
modalities, procedures, and physical medicine activities should be liberalized, 
in order to allow sound clinical judgment of the therapist to control the amount 
of services; that the definitions of lower extremity and upper extremity should 
be broadened; that reimbursement for iontophoresis should be raised; that the 
ground rule defining kinetic activity codes 97530 and 97531 is unnecessary and 
redundant; that requiring "DOP" to justify use of kinetic activities and 
activities of daily living codes on the same day is unnecessary (because they 
are two separate and distinct procedures); that the allowable reimbursable hours 
for functional capacity testing should be raised; that reimbursement rates for 
work hardening, and work conditioning should be raised; that the terminology 
"work hardening" be substituted for "return to Work Conditioning"; that the 
allowable reimbursable weeks for both work hardening and work conditioning were 
inadequate and should be increased; that relative value units for codes 97110, 
97112, 97114, 97116, 97122, and 97130 were too low and should be increased; that 
the restriction preventing use of work hardening and work conditioning together 
for a single injury should be eliminated; that "DOP" requirements were excessive 
and added to the cost of care; that CPT codes were inadequate in describing the 
scope of physical therapy; that fees provided for physical therapists were 
inadequate, especially compared to fees allowed for the same procedures when 
performed by doctors; and several general complaints about billing, reporting, 
and payment procedures that are the subject, not of this section or sec.134.201, 
but of other sections already adopted by the commission. The commission does not 
agree with changing this section in response to these comments, and points out 
that the purpose of this section is only to apply to "old law" injuries whatever 
guideline the commissioners adopt under sec.134.201 of this title. Just as the 
commenter incorporated by reference comments made by another organization in 
another section, the commission incorporates the responses to these comments 
that are made in the preamble to that section. The commission notes that it 
agreed with some of the comments and disagreed with others, as those comments 
were filed for sec.134.201 of this title. The guideline incorporated under, 
sec.134.201 was changed in response to some of the foregoing comment. The 
commission does not agree that postponement of a revised guideline is advisable, 
noting that considerable confusion among providers and carriers is caused when 
there are separate fee guidelines for old law injury and new law injuries. The 
additional costs of computer and billing systems to providers and carriers 
should be ended, not prolonged.
The Texas Medical Association, Care Clinic, (incorporating comments made by 
Texas Physical Therapy Association on another Section) and Texas Society of 
Anesthesiologists commented against the proposed section. No comments 
specifically in favor of the proposed section were received.
The amendment is adopted under Texas Civil Statutes, Article 8306, sec.7(b) 
(1990), which specifically authorize the board to adopt rules to implement 
medical cost containment; Article 8308-17.12(b), which authorize the commission 
to delegate appropriate powers and duties to the executive director to 
administer the workers' compensation law in effect prior to the effective date 
of the new Texas Workers' Compensation Act (which delegation was made by the 
commission on April 1, 1990); Article 8308-17.18(d), which state that the 
commission shall process claims for injuries occurring prior to January 1, 1991, 
in accordance with the law in effect on the date of injury; and Article 8307, 
sec.4(a) (1990), which authorize the board to make rules to carry out and 
enforce the Workers' Compensation Act.
sec.42.105. Medical Fee Guideline.
(a) (No change.)
(b)  The commission will publish and adopt by reference herein a relative value 
scale used in conjunction with the 1990 CPT (Physician's Current Procedural 
Terminology) as part of the Medical Fee Guideline for Services Rendered Under 
the Texas Workers' Compensation Act. This guideline is published as the 1991 
Texas Workers' Compensation Commission Medical Fee Guideline which is 
incorporated herein by reference. This shall be the same guideline adopted by 
the Texas Workers' Compensation Commission and incorporated into sec.134.201 of 
this title (relating to Medical Fee Guideline) as it exists on the effective 
date of this section and as it may be amended thereaftere by the commissioners. 
The guideline may be obtained from the Reprographics Department Texas Workers' 
Compensation Commission. The Southfield Building 4000 South I-H 35, [200 East 
Riverside Drive] Austin, Texas 78704.
(c) (No change.)
(d) The guidelines established herein shall be used for services rendered, and 
durable medical equipment prescribed, on and after the effective date of this 
section.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on November 20, 1991.
TRD-9114611
Todd K. Brown
Acting Executive Director
Texas Workers' Compensation Commission
Effective date: December 11, 1991
Proposal publication date: July 16, 1991
For further information, please call: (512) 440-3972
       
Chapter 134. Benefits-Guidelines for Medical Services, Charges, and Payments
Subchapter C. Medical Fee Guidelines
28 TAC sec.134.201
The Texas Workers' Compensation Commission adopts new sec.134.201, concerning 
medical fee guidelines to establish maximum allowable payments for medical 
services provided, and durable medical equipment sold or rented, to injured 
workers under the workers' compensation laws of Texas. The guideline will apply 
to treatments and services rendered to injured workers, and to durable medical 
equipment prescribed, on and after the effective date of this section which 
adopts the Medical Fee Guideline. It is noted that through an amendment to 
sec.42.105 of this title (relating to Medical Fee Guideline), this guideline 
will also apply to services rendered to injured workers who were injured prior 
to January 1, 1991 ("old law" cases), as well as those whose compensation is 
covered under the "new" Texas Workers' Compensation Act (the Act) , Texas Civil 
Statutes, Article 8308-1.01 et seq. The section and guideline are adopted with 
changes to the proposed text as published in the September 10, 1991, issue of 
the Texas Register (16 TexReg 4929).
The Medical Fee Guideline which is adopted by reference in this section is the 
December 1991 version of the Medical Fee Guideline, which has been developed 
through months of public input, including informal input from provider groups, 
input from the Medical Advisory Committee established under the Act, Texas Civil 
Statutes, Article 8308-8.23, staff research of some charges compiled in the 
statewide database of medical charges and actual payments on those charges (as 
that information has been gathered, since late February 1991), other staff 
research, including review of medical charges and fee guidelines from other 
states, or private entities, written comment in response to guidelines proposed 
under this section, and a public hearing held on October 9, 1991. It is noted 
that the predecessor to this adopted fee guideline, adopted under sec.134.200 of 
this title (relating to Medical Fee Guideline), was also developed after 
extensive public comment, informal input, staff research, and public hearings.
The adopted section establishes guidelines for maximum payments made by 
insurance carriers for medical services rendered by health care providers (but 
not including hospitals and ambulatory surgical centers) and for transfers 
(rentals or sales) of certain durable medical equipment. The section adopts by 
reference the publication of a new fee guideline manual, called the 1991 Texas 
Workers' Compensation Commission Medical Fee Guideline (December 1991 Version). 
The Medical Fee Guideline uses a relative value scale in conjunction with the 
1990 CPT (Physicians' Current Procedural Terminology), a publication of the 
American Medical Association. The Medical Fee Guideline manual is divided into 
the following sections: Medicine, Surgery, Anesthesia, Radiology, Pathology, and 
Durable Medical Equipment; the Pharmaceutical Fee Guideline is actually adopted 
as sec.134.501 of this title (relating to Pharmaceutical Fee Guideline), and is 
included at the back of this Medical Fee Guideline manual for reference purposes 
only. Similarly, required billing forms and reports have been adopted through 
other sections of this title, but are included in the guideline for convenience 
and reference purposes only.
The Medical Fee Guideline manual incorporated into this section adds Ground 
Rules not previously included in the 1988 Medical Fee Guidelines used by the 
Industrial Accident Board to administer the workers' compensation laws. The 
section requires that the maximum allowable payment for medical services will be 
the lesser of: the provider's usual fees and charges; or the charge established 
by use of the Medical Fee Guideline for services rendered under the Texas 
Workers' Compensation Act, which is published in the manual incorporated into 
the section. The section states that copies of the guideline may be obtained 
from Reprographics Department, Texas Workers' Compensation Commission, the 
Southfield Building, 4000 South IH:-35, Austin, Texas 78704.
Copies of the December 1991 guideline will be made available through supplements 
to the August 1991 Medical Fee Guideline; the supplement will include all of the 
revisions and amendments made by the commission in the guideline adopted under 
this section. There is no charge for the supplement alone. This will enable 
persons who already own the August 1991 version to obtain the December 1991 
version by obtaining only the supplement. Persons who do not already own the 
August 1991 guideline, and who ask for the December 1991 guideline, will be 
furnished both the August 1991 publication and the supplement, pending final 
printing of the December 1991 single volume. The total charge for these two 
volumes is $15. A copy of the single December 1991 volume will be available for 
inspection at TWCC Austin headquarters, 4000 South I-H 35, Austin, and may be 
copied for the reasonable charge established by the commission for documents, 
which is $.15 per page (this will be higher than the charge for the final 
printed volume, which is estimated to be in the range of $9.00 to $15). The 
charge for copies ordered by mail will be the same as those purchased in person.
The costs to providers and carriers that are incurred in implementing this 
guideline, and the reduction of fees and revenues, will be outweighed by the 
benefits of implementing the Act, Article 8308-1.01 et seq., and by the security 
of payment afforded by the workers' compensation insurance system. Containment 
of medical costs, it is expected, will be reflected in either stabilized, or 
reduced, premiums for workers' compensation insurance. Numerous employers are 
currently leaving the system because of high premiums, which leaves their 
employees without workers' compensation insurance coverage, and without the 
lifetime entitlement to medical treatment of the effects of the work-related 
injuries. It is expected that stabilized, or reduced, premiums will result in 
retention of workers' compensation insurance coverage (or obtaining of coverage 
by employers who previously "opted out"), which in turn results in more 
protection for a greater number of Texas employees.
Numerous oral and written comments were received concerning the required billing 
and medical report forms, the controversion of bills by carriers for minimal 
omissions of information, the medical billing dispute resolution process, 
submission of invoices, the procedure relating to second opinions for spinal 
surgery, the contention that there is too much paperwork relating to handling of 
workers' compensation claims, the fact that second opinion doctors should not be 
allowed to give return-to-work slips, carrier complaints about the system, and 
other issues which are specifically included in this section or the incorporated 
guideline. These comments addressed requirements adopted through other sections 
of this title (several, for example, in Chapter 133, concerning general medical 
provisions, or Chapter 134, Subchapter I, concerning provider billing 
procedures) , or not dealt with at all in the rules. The commission disagrees 
that changes should be made to this section as a result of such comments, and 
notes that such issues may be addressed through petitions for rulemaking (as set 
forth in the Administrative Procedure and Texas Register Act, Article 6252-13a, 
sec.11, and sec.104.1 of this title (relating to Contents of Rule-Making 
Petitions)). The commission notes that staff will note such comments to 
reevaluate existing procedures, or to recommend amendments to existing rules, at 
some future time.
Concerning the wording of sec.134.201 itself, one commenter argued that use of 
the phrase "maximum allowable charge," as written, established an absolute 
amount that a health care provider could bill, and that such a requirement was 
not supported by several statutes of the law. The commenter noted that capping 
the fee charged would skew the statewide database, which should show actual 
charges and actual payments by carriers. The commenter noted that Article 8308, 
sec.sec.8.01, 8.21(a) and (b), and 8.25 all supported its argument that a 
physician could bill in excess of guidelines, although a physician whose 
billings were not in conformity with the guidelines was subject to having such 
charges reduced if he/she could not overcome the presumption, set forth in 
sec.8.25, that the guideline fee was fair and reasonable. The commenter further 
pointed out that sec.10.08, relating to penalties and sanctions for overcharging 
by health care providers, only covered the situation if a physician billed an 
injured worker more than the amount charged to a private pay patient, and not 
the situation where the bill was in excess of fee guidelines. The commenter 
suggested that the section as written be withdrawn, and republished, to speak to 
a limit on the amount of payment, rather than a limit on billings by physicians.
The commission agrees that the commenter's interpretation of the statutes is 
correct, but that the interpretation of the proposed section is not. The 
commission noted that it has been the intent and the interpretation of the 
commission all along that the phrase "maximum allowable charge" refers to the 
maximum amount that a carrier may reimburse for a bill, not a ceiling on the 
amount a health care provider may charge. The exact phrase was used in the 
section which implemented both earlier versions (February 1991 and August 1991) 
of the Medical Fee Guideline. Health care providers have been advised of this 
interpretation. The commission notes that on April 12, 1991, a brochure 
concerning the medical reporting and billing requirement for workers' 
compensation was mailed to approximately 85,000 health care providers; the 
publication expressly states that "All health care providers may continue to 
bill workers' compensation treatments and services according to their usual and 
customary charges, however, insurance carriers will reimburse health care 
providers the lesser of the usual and customary charge or the Medical Fee 
Guideline amount." It is further noted that the language oF the proposed section 
states this, by use of the phrase "maximum allowable charge," indicating that 
the maximum fee established by the guideline is what is reviewed when the payor 
is determining what amount to "allow." The commission further notes, as support 
of its interpretation of this phrase, that the guideline manual contains the 
HCFA 1500 billing form (for reference purposes) to be used by physicians and 
certain other providers; the insurance carrier exception codes listed on the 
instructions clearly indicate that one exception for use is "reduction according 
to fee guidelines." This would have no meaning unless billing in excess of 
guidelines were possible. The title page of the fee guideline manual makes clear 
that the lesser of the provider's usual charge, or the relative value scale used 
in the guideline, is the maximum allowable reimbursement. Finally, this agency 
may only interpret its rule in a manner that comports with the statute, not orle 
that contravenes it, even if words used in a rule could be read in an 
alternative way.
However, to clarify this interpretation, the commission has substituted the word 
"payment" for "charge" in both subsections (a) and (b) of this section; this 
will track the statute and resolve any ambiguity that could be read into the 
phrase "maximum allowable charge." The commission notes that republication of 
the section is not necessary under the Administrative Procedure and Texas 
Register Act and pertinent caselaw, because the section is not being 
substantively changed, the clarification is responsive to comment, and is 
consistent with the current and past interpretation by the agency of the phrase 
"maximum allowable charge" as used in sec.134.200 of this title (relating to 
Medical Fee Guideline).
The Texas Medical Association commented against this aspect of the proposed 
section; comments in favor of the proposed section as a whole were received from 
several individuals, as well as the Texas Association of Business, Odessa 
Physical Therapy, Motorola, Inc., and the Texas Association of Compensation 
Consumers.
The commission, on its own motion, has revised the name of the version of the 
guideline described in subsection (c) of this section, because it has revised 
and amended the proposed August 1991 guideline in response to public comment 
further described in this preamble. To avoid confusion with earlier versions of 
the guideline which have actually been adopted previously by the commission 
under sec.42.105 and sec.134.200 of this title (relating to Medical Fee 
Guideline), the commission adopts this guideline as the December 1991 version.
Further comments, in addition to those listed previously, were received on the 
incorporated Medical Fee Guideline manual, in whole or in part, and are listed 
in greater detail herein.
With regard to matters contained primarily in the Medicine Section, one 
commenter asked that reimbursement for physical therapy CPT-code 97240 (pool 
therapy) be reduced by 50% when not performed as individual one-to-one therapy. 
The commission agrees with reducing the relative value unit (RVU) for this code 
when there is more than one patient in the pool for therapy, at the same time, 
by the same therapist. The reimbursement will be half the listed RVU for the 
code (8), or four RVU's. The commission states that Modifier-52 should be added 
to this code, in order to indicate service for group therapy, rather than 
individual therapy.
Another commenter noted that medicine ground rules should be changed so that 
repeat procedures would use Modifier-76 in place of Modifier-22; the commenter 
recommended adding the wording "Repeat procedure by the same doctor should use 
Modifier-76 in place of 22." The commission disagrees with making this addition 
to the ground rules, noting that this modifier is already in the guideline, and 
adding it in the ground rules would be duplicative. Some commenters recommended 
including the head as a "body part" in Medicine Ground Rule II.C.1. The 
commission agrees with the comment and has included the head as a separate body 
area, noting as justification that a number of physical medicine modalities and 
procedures are performed on the head. Other commenters suggested changes to 
Medicine Ground Rules II.C.3. and 4 to change the classification of extremity to 
be consistent with ICD-9 codes for diagnosis. The commission disagrees with the 
suggested change, noting that the ICD-9 diagnosis manual indicates that for any 
one body area there may be multiple ICD-9 codes listed for injuries to that 
area. (For example, there are at least three ICD-9 codes representing injuries 
to the elbow.) The commission points out that if the fee guideline's allowable 
numbers of modalities and procedures were determined by the use of ICD-9 codes, 
rather than by specific body area, the number of maximum allowable modalities 
and procedures could be 12 for one body area, instead of the present four 
modalities and/or procedures per area. The commission feels that the suggested 
change could lead to over-utilization of such services, beyond medical 
necessity. In a similar vein, several comments were received recommending 
changes in Medicine Ground Rules II.C.3 and 4. The commenters asked that the 
upper extremity be divided into the following areas: hands/fingers; wrist; 
forearm; elbow; and shoulder/scapula, and that the lower extremity be changed 
and broken down to include the following four areas: hip; knee; ankle; and feet 
and toes. The commission disagrees with the suggested changes, noting that staff 
research has determined that over-utilization of services can occur because of 
close proximity of the suggested anatomical divisions. (For example, a heating 
pad would cover the elbow and forearm, but could, under the commenter's 
proposal, be billed as two procedures.) The commission notes that the guideline 
already allows Modifier-22 to be used to denote multiple injury sites and to 
indicate to an insurance carrier that there is more than one injury in a given 
body area. The proposed guideline therefore allows necessary services to be 
rendered, without allowing for the ability to double-charge or over-charge for 
treatment of essentially a single injury. Another commenter recommended that 
medicine ground rules be changed to clarify the number of office visits allowed 
for payment to physical and occupational therapists during the first week of 
therapy. The commission disagrees, noting that the guideline already clarifies 
the number of office visits allowed for physical and occupational therapists in 
Medicine Ground Rule II.E., "Other Physical Medicine Services;" this ground rule 
states that one initial office visit is allowed during the first week. The 
commission points out the Modifier-22 may be used to indicate unusual 
circumstances that require additional services. The commission further notes 
that the number of office visits required during the first week of cale by a 
doctor is determined by medical necessity.
Another commenter asked that the Medicine Ground Rules be revised to clarify the 
differences between "treating" doctor, "referred" doctor, and "consulting" 
doctor. The commission disagrees with the suggesting addition, because the 
guidelines are not the principle vehicle for defining these differences. Other 
provisions of the law and rules address this; Article 8308-4.62 addresses 
selection of the treating doctor by the injured worker. The Act, sec.1.03(46), 
also defines "treating" doctor. Article 8308-4.64 lists the types of services 
that will not constitute selection of an alternate treating doctor. The 
commission further notes that sec.133.3 of this title (relating to 
Responsibilities of Treating Doctor) addresses the scope and responsibilities of 
the treating doctor; sec.134.4 of this title (relating to Definition of 
Consulting Doctor) addresses the scope of consulting doctor, and the medicine 
ground rules, I.G., already define how the consulting doctor becomes the 
referred doctor.
Other commenters asked that the Medicine Ground Rules be revised so that the 
time period allowed for payment for both Return to Work Conditioning and Work 
Hardening is the same. The commission disagrees, because Work Hardening is an 
interdisciplinary program of individualized treatment, where as Return to Work 
Conditioning is a single disciplinary approach using real or simulated work 
activities in conjunction with conditioning tasks. The commission staff's 
research indicates that the two programs are not equivalent; therefore, allowing 
a two-week extension of treatment by the treating doctor is not appropriate for 
Return to Work Conditioning, but is appropriate for Work Hardening.
One commenter recommended changing wording in Medicine Ground Rule II A.2. from 
"specific to the injury" to "specific to the ICD-9 diagnosis." The commission 
disagrees, for the reason that the ICD-9 codes are not consistent with the 
breakdown of body areas proposed and delineated in the medical fee guideline, so 
the language proposed by the commenter would confuse users of the guideline, 
rather than provide a clear definition. Several commenters urged a change in 
Medicine Ground Rule II A.3. to change "submit" to "forward" and to delete "for 
approval;" these commenters disagreed with the proposed requirement that the 
referring physician approve the physical therapist's plan of care. The 
commission disagrees with eliminating this requirement, because eliminating the 
requirement would depart from express wording and intent of the statute. The 
commission points out that Article 8308-4.61(b) states that all health care 
(except in an emergency) must be recommended or approved by the employee's 
treating doctor. The requirement of doctor approval of the treatment plan 
implements and enforces this statutory directive of oversight of care by the 
doctor.
Some commenters asked that physical therapists qualify as "consultants" under 
the ground rules, and be specifically listed as such. The commission disagrees, 
and points out that Medicine Ground Rule F.1. lists the types of visits which 
are commonly considered as consultations. While this does not include specific 
qualifications for consultants, it is noted that the ground rule does define 
levels of services performed by consultants. It is further noted that the ground 
rule is sufficient as written because the qualifications for each health care 
provider are established by the individual provider Practice Act and not 
determined by the commission. Several commenters asked that Medicine Ground Rule 
II A.3. be revised so that it is consistent with sec.133.101 of this title 
(relating to Initial Medical Report). The commission agrees that there was a 
conflict between this section and the ground rule, and has replaced the second 
sentence of the proposed ground rule with the following: "The patient must be 
re-examined by the treating doctor within 60 days of the initiation of physical 
or occupational therapy. Thereafter, if physical or occupational therapy is to 
be continued, then re-examination by the treating doctor shall occur at least 
monthly." Several commenters also asked for a change to Medicine Ground Rule II 
A.4.b. It was asked that "days of week treatment provided" be changed to "dates 
of treatment." The commission agrees with the suggested change, noting that this 
will be consistent with sec.134.105 of this title (relating to Physical or 
Occupational Therapy Report), which requires these providers to include dates of 
treatment on their reports.
One commenter asked that Medicine Ground Rules II A.4.d. and e., relating to 
Physical Medicine Ground Rules, should be entirely deleted from the guideline. 
The commission agrees with part of this suggestion, and has deleted Ground Rule 
II A.4.e., which, as proposed, stated that the failure to respond to treatment 
should reflect a change of the treatment plan. (It is noted that this sentence 
implied that there was a need to change the treatment plan every time the 
patient was not responding, or that further use of the same treatment would be 
unnecessary. The commission notes that this implication was not intended and the 
statement, as proposed, was confusing because injured workers respond at 
different degrees to treatment and may reach plateaus.) The commission, by 
contrast, disagrees with deleting GR II A.4.d., because the language 
"progressive overall improvement of symptoms" conveys the intended directive and 
should be retained, because the positive statement towards recovery follows the 
Act, sec.4.61(a)(1), which states the health care should cure and relieve the 
effects naturally resulting from the compensable injury and promote recovery.
Numerous comments were received asking that Medicine Ground Rules II A.S., page 
6, be revised to retain the limit of four for modalities only, after the first 
week, but to allow the number of procedures performed (and billed for) to be 
left to the discretion of the therapist. (The proposed guideline imposes the 
limit of four for any combination of modalities, procedures, and other 
activities performed by the therapist.) The commenters felt that this was overly 
restrictive, and interfered with sound clinical judgment. However, the 
commission disagrees with the comments and has retained restrictions over both 
modalities and procedures that can be reimbursed. As justification, the 
commission notes that staff research found that there is a pattern of over- 
utilization of services if no restrictions are placed on both the number of 
modalities and procedures that can be performed on most cases. (For example, 10% 
of all codes billed for these types of procedures are attributed to hot and cold 
packs alone, which are unattended procedures). Staff research indicates that the 
quality of medical care does not suffer with the imposition of restrictions, 
and, further, individual cases that present unusual needs for additional 
procedures or modalities can be billed under the guideline with use of Modifier-
22, to assure rendering of adequate and appropriate care for these injuries. A 
few commenters recommended revision of Medicine Ground Rule II D.10., to 
increase the reimbursement for iontophoresis supplies from $12 to $20. The 
commission disagrees that this is needed, and notes that the reimbursement for 
such supplies is not specifically addressed in the guideline; the supplies and 
cost may be variable. The commission notes that such supplies should be billed 
using CPT-4 code 99070.
Some commenters recommended that Medicine Ground Rule II D.14. be revised by 
eliminating the statement "kinetic activities are considered one-to-one therapy, 
" because this phrase is unnecessary and redundant. The commission disagrees 
with this suggestion, noting that the phrase was proposed, and is adopted to 
clarify a question that had been addressed to the staff concerning the use of 
kinetic activity with one therapist and more than one patient at a time. It is 
further noted that given the high level of reimbursement allowed for this code, 
that it must be interpreted as applying to therapy performed on only one patient 
at a time. The commission, under this circumstance, cannot agree that the phrase 
is redundant and unnecessary.
A number of commenters suggested a revision to Medicine Ground Rule II D.15. by 
deleting it. The ground rule commented on, provided that both kinetic activity 
procedure codes (97530 and 97531), and activities of daily living therapy codes, 
(97540 and 97541), could not be charged for the same day of therapy to an 
injured worker). The commenters noted that "DOP" is required by the guideline to 
justify the use of kinetic activity codes and activity of daily living codes on 
the same day. The commission agrees and has made the suggested deletion, noting 
that these are separate and distinct procedures that can appropriately be 
performed on the same day.
Several commenters asked that Medicine Ground Rule II E.2.b. (concerning a limit 
of two hours on pre- and post-testing for work hardening therapy) be revised by 
increasing the maximum number of allowable hours for functional capacity 
evaluation (FCE) from two hours to five or six hours at $100 per hour. The 
commenters noted that two hours would not yield adequate information to evaluate 
the patient in order to plan an effective therapy program. The commission agrees 
in part, and has increased hours to five hours for initial FCE, but disagrees in 
part and maintains the limit of two hours for FCE at discharge; the $100 per 
hour level is maintained. The change is based on results of staff research which 
indicated that the number of hours needed to adequately conduct an initial FCE 
do in fact exceed the two hours originally designated; however, two hours for 
discharge FCE was determined to be adequate.
Several commenters urged that a definition be incorporated in the ground rules 
that would limit reimbursement for performance of FCEs to occupational or 
physical therapists. The commission disagrees with this proposal; health care 
providers, other than these therapists, are qualified to perform FCEs and should 
be reimbursed for this service. Staff research has not yielded, and commenters 
have not persuasively demonstrated, a rational basis for incorporating the 
limitation urged by the commenters. Some commenters suggested that a definition 
be incorporated that an FCE should include the following procedures. 
Musculoskeletal Assessment: history-medical, vocational, social; posture 
evaluation: static and dynamic; flexibility tests with specific measurements, to 
include some or all of the following: cervical, upper and lower extremities, 
trunk measurements in all planes; neurological tests, i.e., straight leg raise, 
sensation tests, deep tendon reflexes; manual muscle tests of cervical area, 
upper and lower extremities, trunk and grip/pinch; additional tests, i.e., limb 
circumference, palpation, intervertebral mobility, leg lengths, gait analysis, 
and special testing for specific diagnosis; and submaximal cardiovascular 
endurance test. Functional Abilities Test: lifting-squat, knuckle to shoulder, 
shoulder to overhead; pushing; pulling; carrying; kneeling; crouching; crawling; 
reaching; sitting/standing tolerance; squatting; climbing; balancing; fine/gross 
coordination/handling; functional endurance testing; eye-hand-foot co-
ordination; and bending/stooping. The commission agrees and has incorporated 
these suggestions to give further definition to the description of FCEs.
Some commenters asked that Medicine Ground Rule II E.4. be revised by deleting 
the words "Return to" from the name of the treatment program called "Return to 
Word Conditioning." The commission agrees, due to input received by staff from 
knowledgeable sources, which indicates that "Work Conditioning" is the proper 
terminology for a single disciplinary, program designed to assist the patient in 
regaining his/her function, strength, and endurance, as rapidly and as safely as 
possible, in order to return to the job. The suggested deletion has been made.
One commenter expressed the opinion that Certified Social Workers-Advanced 
Clinical Practitioners should be included as health care providers in the ground 
rules. The commission disagrees with including, expressly, this discipline, 
noting that the medical fee guideline, as adopted, already allows such 
practitioners to treat workers' compensation patients, so long as services are 
performed in accordance with the Act, Article 8308-1.03(20)(c), which defines 
covered health care to include "psychological services, if prescribed by a 
doctor. "Psychological services rendered without such prescription, however, are 
not covered health services under the statute.
A few commenters asked that Medicine Ground Rule II. E.3.b. be changed and 
clarified by including a progression of hours up to the "eight (8) hour days," 
for work hardening. The commission disagrees with the suggested change, noting 
as support that the guideline does not establish a set schedule of progression 
per se for the number of hours of treatment per day, per week, allowed for 
payment in a four-week work hardening program. A progression of treatment from 
the initial week minimum of two hours to the final week allowable of eight hours 
is already included in the guideline. The commission agrees with the progression 
concept of hours, but has left the natural progression, from the initial week to 
the final five days covered by the guideline, to the discretion and integrity of 
the health care provider, on a case-by-case basis.
Some commenters asked that Medicine Ground Rule II E.3.b. and g. be revised to 
increase the allowable weeks for work-hardening programs from four to six weeks 
minimum prior to reevaluation. The commission disagrees that an increase should 
be made, noting that the Medical Fee Guideline already allows for an additional 
two weeks of work hardening in appropriate cases, upon approval of the treating 
doctor; also, an additional two weeks over and above this time may be allowed if 
preauthorized and agreed to by the carrier. Staff notes that this can, in cases 
which call for such additional treatment, result in a total of eight weeks of 
work hardening, which research indicates is an appropriate maximum. The two 
levels of approval work to build in controls to ensure that patients who really 
need additional services get them, while screening out the possibility of over-
utilization of services to workers whose injuries do not require an additional 
four weeks of work hardening treatment.
Various commenters also asked, in a similar vein, that this same ground rule be 
revised to increase allowable work hardening treatment from a minimum of four 
hours per day to a minimum of six hours per day. The commission disagrees, based 
upon staff research which indicates that to set a minimum of six hours per day 
would not be in the best interest of the injured worker, for the reason that all 
workers may not be able to tolerate this much treatment. The commission supports 
the principle that different levels of physical condition of the recovering 
worker should determine the minimum number of hours he/she is able to tolerate. 
The commission supports the four hour minimum because an injured worker should 
be able, after the first week of work hardening, to tolerate a half day of 
activity. Otherwise, the injured worker may have been admitted to the work 
hardening program too early in his/her recovery.
Some commenters sought an increase in the reimbursement allowed for work 
hardening (Medicine Ground Rule II E.3.d.) from $35 per hour up to $50 per hour. 
The commission disagrees and has not made the suggested increase, because staff 
research and input from the Medical Advisory Committee indicates that $35 per 
hour yields a fair and reasonable rate of payment for work hardening programs.
Some commenters asked that Ground Rule II E.3.h. be deleted. The rule states 
that "utilization of both Work Hardening and Return to Work Conditioning 
programs is not allowable. Only one of these programs will be reimbursed per 
injury." One of these also noted that a person who started on one program might 
need to be switched, in mid-therapy, to the other. The commission disagrees with 
changing this limitation, noting that work simulation is an integral part of 
both the work conditioning program and the work hardening program. The work 
hardening program is a multi-disciplinary approach designed to maximize the 
worker's ability to return to work (work conditioning is described in the 
foregoing response to comment). Because both programs contain workplace 
simulation, the commission believes it would be duplication of services to allow 
payment both for work hardening and work conditioning on a single injury.
Some commenters asked for an increase in allowable reimbursements for work 
conditioning from $25 per hour to $40 per hour. The commission disagrees, noting 
that staff research indicates that $25 per hour yields a fair and reasonable 
rate of reimbursement for the service performed.
Some commenters asked that Ground Rule II E.4.g. be changed to revise the 
allowable reimbursable weeks for work conditioning programs from a four week 
maximum to a six week minimum. The commission disagrees with the proposed 
change, noting that the guideline already permits an additional two weeks to be 
allowed in appropriate cases. The commission notes that staff research indicates 
that a four-week period is adequate time for reevaluation of an injured worker.
One commenter asked that the ground rules provide for separation of 
manipulations from office visits, for purposes of payment by carriers. The 
commission disagrees, based upon staff research and input from the Medical 
Advisory Committee, which indicates that the guideline's inclusion of a 
manipulation with the initial office visit is appropriate. The commission 
further notes that the Ground Rules II B. l.b., permit a doctor to bill 
manipulations and office visits either together or separately for services with 
established patients.
Numerous commenters asked that the level of payment allowed to physical 
therapists be increased for evaluation of new patients (from CPT code 90015 to 
90017), for limited evaluation (to at least 90010), and for reevaluation of 
patients (from CPT code 90050 to 90070), or by allowing billing for all levels 
of office visits for both new and established patients. Two levels of evaluation 
for the initial visits and two levels for reevaluation visits were suggested, as 
a way of allowing flexibility and minimizing costs. The commission disagrees 
with changing the level or increasing the levels allowed for payment, noting 
that the guideline's level of office visits a]lowed for physical therapy 
services represents careful analysis and study by staff research, as well as the 
recommendation of the Medical Advisory Committee given for the August 1991 
version of the guideline which was adopted in  sec.134.200 of this title 
(relating to Medical Fee Guidelines), and proposed under the present section. 
The commission states that it was thus determined that these levels of office 
visits (CPT codes) which may be charged are fair and reasonable, taking into 
account the increased security of payment afforded by the worker's compensation 
insurance system.
Some commenters recommended increasing reimbursement for office visit CPT-4 
codes for specialists and sub-specialists. The commission disagrees with this 
comment, and points out that the Guideline, Medicine Ground Rule F., addresses 
five levels of consultation, which includes procedure codes for reimbursement of 
in-depth evaluations, as well as uncommonly performed services resulting from 
critical problems presented in particular cases. The commission notes that the 
level of reimbursement adopted was established by using billing data provided by 
general as well as specialty health care providers; based on this, the level of 
reimbursement is fair and reasonable for all health care providers.
One commenter said that the allowable charge for office visits for treatment of 
injured workers should be higher than prevailing rates for non-compensation 
patient-related health care. The commenter pointed out that the doctor had to 
listen to workers' compensation patients complain about why they hate their 
employers, their insurance adjusters, or their wives, which took more time and 
effort. The commission disagrees that more payment should be allowed, noting 
that the Act, sec.10.08 specifically prohibits a health care provider from 
charging workers compensation patients more than private pay patients. The 
commission feels that it would violate the statute by adopting the change 
suggested by the commenter.
One commenter recommended that EEG studies (CPT codes 95819-95823) professional 
component should be reimbursed at 40% of the listed value, which represents an 
increase from the proposed level. The commission disagrees, noting that other 
third-party reimbursers allocate the professional and technical components of 
such services using a 30%-70% division. The commission has chosen to use the 
same division as that deemed appropriate by these other reimbursement programs.
A few commenters recommended the use of the Texas Physical Therapy Association 
(TPTA) guidelines for reimbursement of physical therapy services. One commenter 
pointed out that another state has a separate guideline for physical therapists. 
The commenter noted that providers who were not licensed physical therapist are 
billing "physical therapy" as a means of additional income and raising their 
status. The commission disagrees with, in effect, having a separate fee 
guideline for this particular class of health care provider. The commission 
notes that the adopted Medical Fee Guideline in fact utilizes many of the 
definitions and some of the wording from the TPTA guideline. However, staff 
research indicates that it would not be cost effective for the commission to 
devise a separate fee guideline for each type of provider; taking the course of 
action for physical therapists would start the commission in such a direction.
Some commenters asked for an increase in the level of reimbursement in the RVUs 
for all Inattended physical medicine modalities (codes 97010 to 97039), from 1.5 
to 1.8, and an increase in the RVU for all attended physical medicine procedures 
(codes 97110 to 97139) from 3.0 to 4.8. The commission disagrees, and points out 
that the values for unattended modalities proposed in the August 1991 version of 
the guidelines were decreased from those proposed in the February 1991 version 
because comments were received that asserted that the guideline favored the use 
of unattended modalities over attended procedures. Also as a result, attended 
procedure codes 97110-97039 were increased in the August 1991 guideline. The 
commission is of that opinion that no further adjustment is required.
Some commenters recommended increasing the level of reimbursement for additional 
15-minute codes, 97145 and 97531. The commission disagrees, pointing out that 
codes 97145 and 97531 are, in this guideline, already reimbursed at one half of 
the initial 30-minute fee for the same service. The commission notes that it is 
appropriate to reimburse for 15 minutes in an mount of half of the charge for 30 
minutes.
Some commenters recommended increasing allowable reimbursement for codes 97530 
(kinetic activities) and 97720 (extremity testing). The commission disagrees; 
based upon staff review of actual physical therapy billings from the statewide 
database, and comparing them to other reimbursement guidelines from Texas and 
other states, the commission has determined that the adopted fees are fair and 
reasonable.
One commenter asked that whirlpool treatment charges, CPT code 97022, should be 
increased by at least two-thirds. The commission disagrees, based upon staff 
research in billings in the statewide database and from health care providers 
which indicates that the relative value units established for this code are fair 
and reasonable. Other commenters asked that reimbursement of dermatomal 
somatosensory evoked potentials testing and interpretation (code 95925) be 
changed from a "per extremity" basis to "per nerve" The commission agrees, based 
on staff research which demonstrated that such testing and interpretation is 
more appropriately reimbursed per nerve. The following statement has been added 
to Medicine Ground Rule I J., Somatosensory Testing: "when performing 
somatosensory testing, identify by using procedure code 95925 and bill each 
nerve level separately. No bilateral or base-level testing will be reimbursed. 
The technical and professional components of the study are included in the total 
fee. The interpretation fee, if billed separately, will be reimbursed at a cost 
not greater than 30% of the listed value." The commission has also adjusted the 
relative value unit of code 95925 from 15.8 to 13.5. The current RVU (15.8) 
included one or more nerves, and because research indicates it is more 
appropriate to allow for billing by nerve, the RVU is changed to resolve 
inconsistency, noting that the reduction still results in increased payment to 
the provider.
A few commenters asked for revision of emergency department codes 90570 and 
90580 to more accurately reflect the complexity level of each code where the 
more difficult code matches a higher payment level. The commission agrees that 
more complex services should be paid at a higher relative value rate than less 
complex service, and has made the suggested change. As basis for this action, 
the commission notes that 90580 is a more extensive service than 90570 and 
should have an increased value; the change incorporated, after staff study and 
analysis of other relative value scales, for code 90580 is from 14.45 to 16.50.
In a similar vein, some commenters asked for changes to consultation codes 90620 
and 90630 to accurately reflect complexity level so that the more difficult code 
reflects a higher allowed payment amount. The commission agrees that more 
complex services should be reimbursed at a higher level; staff analyses 
indicates that the two codes were inverted in the August 1991 version. The 
correct relative values have been adopted into this guideline (20.48 for code 
90620, and 23.04 for code 90630). Some commenters also asked that reimbursement 
levels be increased for codes 90610, 90620, and 90630. The commission disagrees, 
noting that the RVUs for these codes in the proposed guideline were those 
recommended by the Texas Medical Association as fair and reasonable, because 
these RVUs correlated with CHAMPUS. The commission concurs that the RVUs are 
fair and reasonable rates.
One commenter asked that RVUs for codes 95833 and 95834, muscle testing, be 
decreased for total evaluation of body excluding hands. The commission 
disagrees, based upon staff research, which compared the proposed levels to 
other workers' compensation fee guidelines, as well as the relative value unit 
in the 1988 Official Medical Fee Guideline adopted by the Industrial Accident 
Board; by comparison, the adopted rates herein result in fair and reasonable 
reimbursement for services.
One commenter stated that physical therapists should be allowed to bill for 
manipulations using CPT codes 97260 and 97261, instead of 97139. The commission 
disagrees with making this express directive a part of the guideline, noting 
that the guideline does not specifically state that physical therapists must use 
code 97139 for manipulations. Primarily, the commission points out that the 
adoption and use by the commission of the CPT-4 codes and nomenclature of the 
American Medical Association (AMA) do not allow the commission to change AMA's 
descriptions of codes 97260 and 97261, which clearly state that they are used to 
indicate services "performed by a physician;" the change suggested by the 
commenter would violate the AMA designations and copyright authorization to TWCC 
to use these codes. One commenter asked that certain codes be changed back to 
the relative value units used in the February 1991 version of the guideline; the 
codes are 90040, 90200, 90215, 90220, 90240, 90250, 90600, 99070, and 90782. The 
commission disagrees, noting that the change made to these codes in the August 
1991 version resulted from recommendations made by the Medical Advisory 
Committee. Further, code 99070 is used to bill all supplies, so the commission's 
opinion is that there should be no set relative value for this. The commission 
staff has researched and compared these codes to other states' fee guidelines 
and determines those adopted here to be fair and reasonable. One commenter asked 
that the fee guideline include a value for the review of medical records. The 
commission disagrees that this is necessary, and points out that code 99080 
already covers review of medical records.
Numerous commenters asked that the conversion factors for both the Medicine 
Section and the Surgery Section be increased; some commenters preferred 
conversion factors used in the February 1991 version of the guideline. Further, 
some commenters wanted across-the-board increases in relative value units as 
well. The commission disagrees with all of these comments, for these reasons: 
the conversion factors were adjusted in the August 1st version to reflect the 
overall rates of growth of medical costs, and provide for fair and reasonable 
outline for reimbursement. The commission notes that Article 8308-8.01 et seq. 
states that the commission shall establish medical policies and fee guidelines 
to assure quality of medical care and achieve effective medical cost 
containment; the commission feels that the balance has been struck to assure 
such by providing a tool which assures that providers are reimbursed fair and 
reasonable rates. The rates adopted do not exceed the overall growth of medical 
costs; the commission points out that it is required to review and revise the 
guidelines at least every two years in order to be current with medical costs 
and treatments.
With regard primarily to items in the Surgery Section of the Medical Fee 
Guideline, one commenter recommended that Surgery Ground Rule I A. (Global Fee 
Concept) be clarified to specify how many follow-up visits will be allowed for 
certain procedures. The commission disagrees, pointing out that the current 
ground rule states that the number of follow-up days depends on the unit value 
assigned to each code; medical necessity should determine the number of visits 
during the follow-up days. Another commenter asked that Surgery Ground Rule I G. 
S., for lumbar spinal instrumentation and fusion, be revised to require coding 
of instrumentation to always be listed as the secondary procedure. The 
commission agrees with the suggestion, based upon the fact that instrumentation 
is not the primary procedure, and has changed the Ground Rules to ensure that it 
is not reimbursed as the primary procedure. A few commenters asked that relative 
value units be increased, when bilateral procedures are performed, for codes 
63030 and 22630. The commission disagrees, noting that while the February 1991 
version did not address the bilateral procedure, the August version was adopted 
(and as sec.134.200 has here been proposed), with a clarification of the payment 
of bilateral procedure. The commission notes further that bilateral procedures 
require no additional operative site; however, some additional time is required 
by the surgeon when the procedure is performed bilaterally. Consequently, the 
commission has determined that two additional RVUs will be allowed when the 
procedure is bilateral. One commenter recommended deleting follow-up visits from 
the global fees such as for debridement and injection codes. The commission 
agrees and has taken the following action for the reasons stated: the minimal 
service codes (for example injection of tendon sheath) is a "starred" procedure. 
Starred procedures, set for in Surgeon, Ground Rule II A. page 4, states that 
pre- and post-operative services are not included in the service listed. In 
order to clarify a misinterpretation of these provisions, this line has been 
cross-referenced under Global Fee Concept, Surgeon, Ground Rule page 1, I A. One 
commenter asked that the multiple procedure Surgeon, Ground Rule for trauma 
patients be deleted, rather than operating on a declining scale. The commission 
disagrees, and notes that the multiple procedure rule, as herein proposed and 
adopted, allows for 100% reimbursement rate of each primary, procedure at each 
injured site. It is noted that subsequent procedures performed in separate body 
areas, as may occur with trauma cases, are reimbursed according to the multiple 
procedure rule (100%, 50%, 50%) as addressed in Surgery Ground Rule I G.2., 
staff research failed to find justification for wholly deleting this rule in 
trauma cases. Some commenters asked that Surgery, Ground Rules Section F., 
concerning payment of multiple procedures, be revised. The commission disagrees, 
noting that these commenters were pointing to a ground rule contained in the 
February 1991 version of the guideline, which is not incorporated into this 
section. The commission notes that reimbursement of multiple procedures is 
covered in Surgeon, Ground Rule Section G. of the adopted guideline incorporated 
herein; this rule states that the major procedure will be reimbursed at 100% of 
the reasonable charge, and each subsequent procedure will be reimbursed at 50%. 
One commenter recommended 100% reimbursement for each surgeon, including co-
surgeons, involved in a primary procedure. The commission disagrees, noting that 
the 75% rate for co-surgeons performing laminectomy and fusion is consistent 
with the 1988 guideline adopted by the IAB. The commission's position is that 
leaving this percentage intact allows for consistency with regard to any and all 
changes in the established maximum allowable fees or the physician's usual and 
customary charges; additionally, a co-surgeon may also be paid 20% of the listed 
value of a surgical procedure when acting as an assistant surgeon.
One commenter recommended an expanded definition of physician's assistant (PA) 
and use of modifier-85, for a PA who is a non-physician. The commission agrees 
that clarification is needed as to who can serve as assistant to the surgeon and 
be paid for services, and has changed the Modifier-85 "PA as Assistant Surgeon; 
(in lieu of Assistant Surgeon)" to read "Certified Physician Assistant (PA as 
Assistant to Surgeon; (in lieu of Assistant Surgeon);" in situations where 
Modifier-85 is indicated, the assistant to the surgeon should be a certified 
physician assistant, as defined by the Board of Medical Examiners.
Some commenters asked for revision of codes 12055, 12054, and 12056 in the 
Surgery Section. The commission disagrees based on a review of the codes, which 
allow a graded increase in reimbursement for gradually larger wound closures. 
The commission declines to revise these, based on its stated intent to allow 
increased reimbursement rates for increased complexity of certain procedures 
relative to other, lower-rated and less complex procedures. One commenter asked 
that code 16020 be "starred" in the Surgery Section of the fee guideline to 
allow payments for follow-up care. The commission agrees that this is 
appropriate, and has added an asterisk to code 16020, as indicated in the CPT 
Book. Another commenter asked to increase reimbursement for anterior lumbar 
fusion, code 22558, from $3,108 to $3,500. The commission disagrees, based upon 
an analysis by staff of actual billing data contained in TWCC's statewide 
database; the charges reflect the usual and customary charges of Texas doctors, 
and indicate that the allowable amount in the guideline is a fair and reasonable 
level of payment. One commenter sought increases in the conversion factors codes 
90642, 90782, 27328, and 27680. The commission notes that the commenter had 
inaccurately computed the amount of payments that the adopted guideline would 
allow in his comment letter; the actual payment would be higher under the 
guideline. The commission agrees that the RVU for code 27328 should be increased 
from 2.2 to 2.4, based upon analysis of fee guidelines from other states and the 
listed levels of difficulty in the McGraw-Hill Relative Value Scale. However, 
the commission disagrees with adjusting the conversion factors for any of these 
codes, noting that the structure of the guideline is to maintain a consistent 
conversion factor through a section of the manual, rather than unique factors 
for specific codes; the commission's position is that the adopted conversion 
factors have been established to maintain a system which reflects fair and 
reasonable payment levels to providers.
One commenter recommended increasing code 20974, application of the non-invasive 
bone stimulation (external) from $37 to a one-time, non-invasive, maintenance 
fee of $1,700. The commission disagrees, based upon the fact that the relative 
value for procedure code 20974 is an adequate reimbursement for the application 
of a non-invasive bone stimulation (external); follow-up care to monitor this 
device may be charged with the appropriate codes in the fee guideline.
One commenter sought to increase the reimbursement levels for surgery codes 
63030, 63042, 22630, and 29880. The commission disagrees with the need to adjust 
these codes, noting that research and analysis of reimbursement patterns for the 
surgical codes in question as compared to similar services, indicate the current 
levels of reimbursement are fair and reasonable.
Several commenters asked to address and revise the RVUs for injection procedure 
codes. The commission agrees, and, using as a baseline for relative values the 
established ASA level of difficulty, has adjusted the following codes upward:
 [graphic]
One sought allowance of multiple injection levels for discography. The 
commission disagrees, based upon the fact that nomenclature for codes 62290 and 
62291 as developed by the AMA indicates these codes are to be used for single or 
multiple levels. Hence, since the nomenclature defines the codes to be used for 
single or multiple levels, one reimbursement amount for the single or multiple 
levels is appropriate.
One recommended including "subacromial bursectomy" in the description of 
services for code 29825. The commission disagrees with the comment; the CPT 
Codes and nomenclature are copyrighted by the AMA. The Texas Workers' 
Compensation Commission may not change the description of a code, because of 
these copyright laws.
One asked for creation of a code for redo laminectomy. The commission disagrees, 
noting that (as in the previous comment) the codes in the Medical Fee Guideline 
are a copyright of the AMA. TWCC is unable to add a code to the Surgical Section 
for Redo Laminectomy, without violation of copyright.
A few commenters asked that reimbursement be increased for shoulder arthroscopy 
codes 29815, 29825, and 29826. The commission agrees that the level for code 
29825 is too low, and should be increased from 4.00 to 7.00, based upon a staff 
survey of orthopedic surgeons through Texas. However, based upon the same 
survey, the commission disagrees with the commenters as the codes 29815 and 
29826; the survey revealed that the adopted reimbursement for these codes is a 
fair and reasonable fee for services. The commenters also asked to increase 
reimbursement for the following knee arthroscopy codes: 29870, 29871, 29874, 
29875, 29879, 29880, 29881, 29882, 29883, 29884, 29885, 29887, and 29889. The 
commission agrees with increasing the RVUs for codes 29884 and 29885, based upon 
staff research of McGraw-Hill Surgery Relative Values and a survey of orthopedic 
surgeons throughout Texas. These studies revealed that due to the relative 
difficulty of the procedures, the value for code 29884 should be increased from 
3.2 to 6.50 and the value for code 29885 should be increased from 8.8 to 9.76. 
The commission disagrees with the adjustments to the other knee arthroscopy 
codes; staff research of Orthopedic Surgeons throughout Texas and comparison of 
workers compensation fee guidelines in other states, reveal that reimbursement 
for the other 11 codes is fair and reasonable.
Concerning primarily the Anesthesia Section of the Medical Fee Guideline, 
several commenters recommended reinstatement of code 99140 in Anesthesia for 
anesthesia performed under emergency conditions. The commission disagrees, 
noting that procedure code 99140, Anesthesia complicated by emergency 
conditions, is already addressed in the Medical Fee Guideline, Anesthesia Ground 
Rules, page 4. In addition, it is addressed on page 37 of the Medicine Section.
Several commenters asked that the conversion factor for the anesthesia section 
be increased from $37 per unit to $50 per unit. The commission disagrees; staff 
researched other workers' compensation fee guidelines and the anesthesia 
conversion factors ranged from $23.27 to $32.97. The current Texas conversion 
factor level of $37 is higher than those researched and has been determined fair 
and reasonable. Additionally, when the surgical codes in the 1988 Official 
Medical Fee Guideline were replaced with the ASA Relative Value Units, the 
reimbursement level to the anesthesiologists remained comparable. However, the 
commission has assigned a new and separate conversion factor of $32 to certified 
registered nurse anesthetists (CRNA).
Various commenters recommended that the American Society of Anesthesiologists 
"Relative Value Guide" be used in the Medical Fee Guideline. The commission 
disagrees, and points out that the RVUs used in the Anesthesia Section are from 
the ASA Relative Value Scale, but since the commission is using the CPT-4 codes, 
medicine and surgical codes used in the ASA Relative Value Guide should remain 
in the appropriate section of the Medical Fee Guideline.
One recommended deletion of Anesthesia Ground Rule I.H.1.c. 1-4. The commission 
disagrees; according to the Texas Association of Nurse Anesthestist's (TANA) 
Facts About Certified Nurse Anesthetists: "Because Registered Nurses do not have 
prescriptive authority in Texas, CRNA's function under the general supervision 
of a provider who has prescriptive authority", i.e., a physician, podiatrist or 
dentist. TWCC has been mandated by the Act under Article 8 to "...establish by 
rule medical policies and fee guidelines governing the provision and payment of 
medical services that are designed to assure the quality of medical care and 
achieve effective medical cost control." The commission feels that these goals 
are furthered by the ground rule in question. The same commenter asked that 
Ground Rule I.H.2. be deleted. The commission agrees, with removal of statement 
I.H.2. regarding reimbursement of CRNAs. After further research staff revised 
their recommendation from the one submitted to the commission on October 30, 
1991. No other primary health care provider in the Medical Fee Guideline 
receives a percentage of another health care provider. CRNAs should be afforded 
the same privilege to stand on their own merits. Hence, the percentage should be 
removed and a separate conversion factor given to CRNAs.
A few commenters argued that adoption of the proposed guideline would constitute 
an endorsement by the commission of: imposing on a medical practice certain 
restrictions, for purposes of reimbursement, that are not otherwise required; 
reimbursing on the basis of the identity of the practitioner, rather than the 
service rendered; and adopting a practice of reimbursing providers as a 
percentage of what other providers may be reimbursed, rather than allowing 
reimbursement of providers in their own right. The commenter concluded that such 
policy determinations would represent a departure from the long-standing 
practice of the commission (i.e., the Industrial Accident Board). The commission 
disagrees with the commenter that the commission would be adopting the policies 
suggested. Consideration of different practices, rather than just the service, 
has been made in other areas of the guideline through the requirement that 
certain practices use particular CPT-4 codes. However, the commission agrees to 
the establishment of separate conversion factor for CRNAs of $32. Difference of 
training, and scope of practice, for the various persons defined as health care 
providers justify and support some differences in reimbursement ground rules and 
guidelines. The commission notes as further justification, that no other primary 
health care provider in the Medical Fee Guideline is reimbursed a percentage of 
another health care provider. CRNAs should be afforded the same privilege to 
stand on their own merits. Hence, the percentage should be removed and a 
separate conversion factor given to CRNAs.
As support for the differential in the conversion factor compared to 
anesthesiologists, the commission notes that the respective training and 
clinical backgrounds of anesthesiologists and CRNAs are different; to become an 
anesthesiologist, a minimum of approximately eight years of post-graduate 
education and clinical instruction must be completed, on top of a four-year 
undergraduate education. By contrast, a CRNA's minimum educational and clinical 
training encompasses less time. Further, an anesthesiologist does not have to be 
supervised by a physician, as a CRNA must. Finally, the care rendered by an 
anesthesiologist involves more than the administration of anesthesia, including 
pre-operative and post-operative medical care, diagnosis, and treatment, 
sometimes involving other medical problems or medical emergencies. The 
commission notes that the differential is justified, while the separate 
conversion factor recognizes the services of the independent CRNA. The 
commission feels that the level of reimbursement is fair and reasonable (for 
example, it substantially exceeds the conversion factor used by Medicare).
Some commenters noted that lower reimbursement for CRNAs will have a negative 
impact on availability of their services in rural areas. The commission 
disagrees that the guideline alone will have this affect, noting that comments 
submitted by TANA list numerous reasons for an across-the-board deficit of 
health care practitioners in rural areas. The commission notes that the problems 
of availability of health care in rural areas preceded its proposed guidelines.
Some commenters recommend a change in wording in Anesthesia GR H.1.c.3. 
regarding supervision of CRNAs from "licensed health care provider" to "under 
direction of a physician." The commission disagrees, noting that the ground rule 
allows supervision, not by an licensed health care provider, but by such a 
provider who has prescriptive authority.
Concerning primarily the Radiology section of the Medical Fee Guideline, one 
recommended eliminating the use of modifiers for radiology. The commission 
disagrees, because of the fact that use of the copyrighted AMA CPT-4 Codes and 
nomenclature in the Medical Fee Guideline incorporates the usage of their 
modifiers as well. Modifiers delineate technical from professional components 
which may be billed by separate health care providers and reimbursed separately. 
Modifiers also identify levels of service and establish reimbursement.
Another recommended the normal number of slices for CAT scans be changed from 
"up to 35 slices" to "up to 45 slices." The commission agrees to make the 
suggested change, because staff research indicates that the normal number of 
slices for CAT scans and MRI is greater than that listed in the fee guideline. 
The staff recommends the removal of the requirement for documentation for 
medical necessity for greater than 36 slices for CAT scans and greater than 26 
slices for MRIs.
A few commenters recommended adjusting the reimbursement for the following 
radiology codes: 70010, 70011, 70110, 70260, 71101, 71110, 72040, 72050, 72052, 
72070, 72100, 72125, 72126, 72131, 72132, 72240, 72241, 72255, 72256, 72265, 
72266, 72270, 72271, 73050, 73100, 73110, 73510, 73560, 73620, 73660, 74240, 
74241, 74400, 74415, 75606, 75650, 75651, 75653, 75655, 75657, 75669, 75678, 
75682, 75687, 75775, 75895, 75990, and 76361. The commission disagrees with the 
need for an increase in some codes, based on a staff survey of usual and 
customary fees of radiologists throughout Texas, staff research of other 
reimbursement programs from other states, and a study of relative difficulties 
from McGraw-Hill. These studies revealed that the current reimbursement levels 
for the following codes result in fair and reasonable payment for services: 
72052, 72125, 72126, 72131, 72132, 73510, 73560, 73110, 73620, 73660, 75669, 
75678, 75682, 75650, 75651, 76361, 75990, 74241, 74415, 72265, 72270, 72271, 
75653, 75655, 75657, 75606, 75775, 75895, 72100, and 75687. However, the 
commission agrees that these same studies indicated that professional and/or 
technical components should be adjusted upward for the following codes: 70010, 
7001 1, 71 101, 72040, 72070, 72100, 72240, 72241, 72255, 72256, 72266, 73050, 
and 73100; additionally, the commission agrees that these same studies indicated 
that professional and/or technical components should be adjusted downward for 
the following codes: 70110, 70260, 71101, 72050, 74240, and 74400.
Concerning primarily the pathology section of the Medical Fee Guideline, a few 
commenters asked to change the conversion factor form $0.95 to $1.50 per unit, 
based upon their analysis of 65 procedure codes from Pathology RVS. The 
commission disagrees with increasing the conversion factor; the current fee 
guideline incorporates a professional component, which is a new factor to cover 
pathology services. An increase in conversion factors would serve to "increase 
an existing increase." The commission notes that examples given by the 
commenters to support the argument for an increase in the conversion factor are 
not commonly used CPT codes in workers' compensation claims (e.g., Code 88130, 
sex chromatin and Code 88248, chromosome analysis).
Concerning primarily the Durable Medical Equipment Section of the guideline, a 
few commenters asked that the requirement of a TENS invoice be removed. The 
commission agrees with revising the ground rule on this, noting that the invoice 
requirement is unnecessary because the guideline has one maximum allowable 
charge for TENS units. Another asked that TENS supplies not be included in the 
allowable rental price. The commission agrees, based upon a review of actual 
bills, catalog prices, and quoted prices for rental TENS which indicates that 
the inclusion of supplies with TENS rentals should not be included with the 
rental price. The DME Ground Rule pg. 1 is changed to read:
A. Rentals:
1. Limited to 30 day trial period.
2. Supplies submitted for reimbursement must be itemized and the charges may not 
exceed the maximum allowable per month.
3. In unusual circumstances, where additional supplies are necessary, use 
modifier-22 and "DOP" is required.
Several commenters asked that the maximum allowable charge for four lead TENS 
units be increased to $705 (particularly for Nuwave TENS unit by Staodyn). The 
commission, however, disagrees; staff reviewed actual bills, catalog prices, and 
quoted prices from distributors of over 20 different TENS units and wholesale 
catalog prices for 12 TENS units, including Nuwave TENS. Specifically, Nuwave 
TENS had a wholesale price of no more than $300. This research indicates that 
the $495 as a maximum allowable reimbursement provides a fair and reasonable 
reimbursement rate to the providers. Additionally, the commission notes that the 
Medical Guideline cannot endorse specific brand names.
One wanted the guideline to establish separate electrode charges, not just in 
relation to TENS treatment. The commission disagrees with adding the separate 
charge, however, because the staff has not determined either the appropriateness 
of a separate charge or what a fair and reasonable charge would be.
Some commenters suggested adding new equipment items to the DME section for the 
guideline. The commission agrees to add the following:
[graphic]
The commission notes that the reimbursement allowed is derived from a staff 
survey of various DME suppliers to assess a fair and reasonable fee. The 
commission disagrees, however, with adding the following equipment suggested by 
the commenter: Family Style Electric Bed, king size w/mattress; Bed Board, 
Gatch, hospital bed; Air Flow Mattress w/pump, low pressure, critical care; Rib 
Belt, elastic; Dorso-Lumbar Corset w/steel stays (custom); Body Jacket, LSO; 
Body Jacket, TLSO; Shoulder Orthosis, Acromio/Clavicle; Airplane Splint; Cock Up 
Wrist Splint, canvas; Wrist Firearm Splint; Resting Pan Hand Splint; Function 
Hand Splint; Knee Immobilizer, all lengths; Knee Brace, hinged w/condylar pads; 
Knee Brace, spiral elastic/neoprene; Knee Brace, spiral w/condylar pads, 
elastic/neoprene; Knee Brace, Lenox Hill/CTI; Ankle Foot Orthosis, custom 
molded; Ankle Foot Orthosis, custom fitted; Hose, below knee, 20-30MM; Hose, 
below knee, 30-40MM; Hose, thigh length, 20-30MM; Hose, thigh length, 30-40MM; 
Hose, leotard/panty, 20-30MM; Hose, leotard/panty, 30-40-MM; Hose, custom made; 
Cervical Brace, semi; and Cervical Brace, four post. The fees and charges across 
the state were too variable to ascertain a specific fair and reasonable fee for 
inclusion in the fee guideline.
The same commenters also sought to delete equipment items listed as D0230, 
D0342, D0363, D0376, D0610, and D0614. The commission agrees with deleting D0462 
and D0342 (which are duplicates to other codes already in the DME schedule) and 
D0376 and D0363 (which are being replaced with comparable equipment at a lower 
payment level). However, the commission disagrees with deleting D0230, D0610, 
and D0614; the stated no basis for deletion, and the commission has not been 
able to independently ascertain why they should be removed. The same commenters 
recommended an increase in reimbursement for the following 16 codes: D0200, 
D0204, D0222, D0223, D0242, D0525, D0611, D0336, D0318, D0337, D0701, D0517, 
D0522, D0523, D0338 and D0712. The commission, based upon staff surveys of 
various dealers of durable medical equipment, agrees to adjust five codes as 
follows: D0200 (to $55); D0204 (to $45); D0242 (to $175); D0701 (to $75.50, 
rental); and D0712 (to $282, rental). However, the commission, based on staff 
research, disagrees with adjusting the other codes as suggested, because it is 
indicated that those items are reimbursed through the guideline at a fair and 
reasonable rate.
The commenters also asked that code DOS19 be moved to a different area of the 
DME section. However, the commission notes that the commenters failed to 
demonstrate the necessity for this, and it disagrees with the suggestion. The 
commenters also asked that the designation "N/A" on codes D0525, D0565, and 
D0575 be replaced with a reimbursement amount for a rental. The commission 
agrees with the suggestion for two of the codes: D0565, Rehabilitative Quality 
Exercise Bicycle; and D0575, Turbo Spa whirlpool, and establishes a rental rate 
of $40 for each, based upon research. However, the commission disagrees with 
replacing N/A for code D0525, fracture frame, as staff research could not 
establish a fair and reasonable charge for this item. The same commenters asked 
that the guidelines delete a rental reimbursement amount and replace it with 
"N/A" on five codes: D0772, D0773, D0774, D0780, and D0782. The commission 
agrees to do this, noting that these codes designate pads and cushions that 
would not ordinarily be used on a rental basis.
Many comments were received on the Medical Fee Guideline manual generally. 
Several commenters took issue with "fair and reasonable" fees when documentation 
of procedure (DOP) is required, noting the excessive documentation required by 
carriers. The commission disagrees with changing the guideline as a result of 
these comments; it is the commission's response that DOP is justified when the 
code is too variable to assign a relative value. Additionally, the "unlisted 
procedure codes" can be used for many different procedures in a section. (For 
example, 64999, unlisted procedure for nervous system, could be used for a 
spinal surgery or a nerve repair that is not listed in the CPT codes.) Since the 
procedures are so different, the amount of documentation necessary to 
substantiate the need for the procedure or to define the procedure can vary.
One asked that the guideline clarify how reimbursement for DOP is established. 
The commission disagrees, noting that DOP reimbursement is determined by the 
carrier based on its analysis of the fair and reasonable charges for each 
service or supply in a given geographical area.
Some commenters recommended the use of a multiplier so that health care 
providers may bill and be reimbursed for supplies. The commission disagrees, 
noting that supplies are too variable in quality and price to establish an 
equitable multiplier. A few commenters recommended a uniform coding for orthotic 
and prosthetic services. The commission disagrees with changing the guideline at 
this point, although staff generally agrees that a uniform coding system should 
be developed; staff was unable to adequately research and develop one for the 
present guideline but will consider one for the future.
Some commenters recommended alternative reimbursement schedules to the Medical 
Fee Guideline including: Resource Based Relative Value Scale (RBRVS), TMA Usual 
& Customary, and McGraw Hill Fee Guideline. The commission disagrees with the 
comments; research has indicated that at the present time, the majority of 
health care providers use the nationally recognized CPT-4 codes and nomenclature 
which are implemented in the TWCC Medical Fee Guideline.
One asked that the present guideline be postponed, and a 1992 Medical Fee 
Guideline be developed using 1992 CPT codes, by May 1992. The commission 
disagrees that the adopted guideline in sec.134.201 should be delayed for this 
reason; the Act,  sec.8.24, mandates "The medical policies and fee guidelines 
shall be reviewed and revised at least every two years to reflect fair and 
reasonable charges and amended to reflect current reasonable or necessary, 
medical treatment or ranges of treatment." Since the 1992 CPT codes will contain 
major revisions in content and concept from the 1990 CPT, the commission will 
begin reviewing and considering these codes in the first half of 1992.
One asked that physicians should be surveyed to determine usual and customary, 
fees, which should be used in the guideline. The commission disagrees, and 
points out that health care providers across the state have, in fact, been 
surveyed for levels of relative difficulty for services in the fee guideline. 
The Texas Medical Association recommended (and the RVUs were changed) on over 
100 codes for the August 1st version of the fee guideline. Additionally, the fee 
guideline, in various versions, has been open for public comment three times 
this year. Each time the Medical Review Division studied, researched, and 
recommended changes to ensure equity to the health care providers as well as the 
workers compensation system. The same asked for inclusion in the guideline of an 
automatic cost of living adjustment for fees. The commission disagrees, noting 
that the Act mandates a review and revision of the fee guidelines at least 
every, two years. The commission notes that the Act also mandates the staff to 
analyze the actual Texas health care provider billing data to determine 
necessity of adjustments in relative value units and conversion factors. These 
procedures will accommodate adjustments so that a built-in cost of living factor 
in the current guideline is not necessary.
Some commenters asked that the conversion factors used in the February 1991 
version of the Medical Fee Guideline be reinstated (which would constitute an 
increase in those proposed). The commission disagrees, noting that the adopted 
conversion factors reflect the level of cost containment expressed by 
legislative mandate, while operating to ensure a fair and reasonable rate of 
reimbursement, while assuring quality of medical care. The commission notes that 
testimony brought forth at the public hearing concerning a survey of doctors 
indicated that doctors do not object to the rates of reimbursement established 
under these guidelines as they do to paperwork requirements (established by 
other sections of this title) or the disputes with some carriers over matters 
not related to guidelines. The commission notes that the adopted conversion 
factors have been in effect since August 1, 1991, and health care participation 
remains stable.
The commission, in addition to changes made previously, also had adopted the 
following items in the guideline for purposes of clarification, correction, or 
consistency.
Medicine Section. The commission has added, in Medicine Ground Rule p. 1 (B), 
the word "treating" to qualify the word "doctor," in the sentence beginning 
"doctors co-ordinating medical management with other health care providers. . . 
"
The commission, Ground Rules p. 6 of proposed manual, has reversed #5 and #6, 
because #6 defines words used in #5; the order of the rules should be reversed 
for clarity.
The commission has added, Ground Rules p.6, #5, a last sentence which reads 
"Code 97145 may be used a maximum of four times for each session. " The 
commission has deleted Modifer-51 from the Medicine modifiers, because it is 
appropriate for calculating reimbursement for surgical procedures only; this 
caused misinterpretation in use of the August 1991 version.
The commission adopts increased payment relating to additional 15 minute code 
97541; the RVU is revised from 1.0 to 2.9, to make this consistent with payment 
for other 15 minute service codes (which are paid at half of the 30-minute 
rate). The commission adds to the Medicine Ground Rules the statement "90500 
through 90580 are to be used by doctors in a hospital setting. When a doctor's 
office is a minor emergency center, the doctor should use codes 90000 through 
90080 to bill for appropriate office visits." The commission has also reduced 
RVUs for codes 97012, 97014, and 97024 to 1.5, to be consistent with those 
assigned for other passive modalities.
Surgery Section. The commission has added an "asterisk" to the following 
procedures, listed at CPI-4 codes: 16020,16025,19000, 36405, 54050, 54200, 
57450, 57511, 61210, 62274, 65800, 66030, and 68820. The commission had added, 
to clarify payment for multiple surgical procedures, the following language to 
Ground Rules p.3, Rule G. Multiple Procedures: "8. Procedures which are 
performed only as additions to other procedures are already reduced accordingly 
in the fee guideline and should not be further reduced as per the multiple 
procedure rule. The following codes should not be reduced by the multiple 
procedure rule:"
[graphic]
Radiology Section. The commission, to avoid confusion, had substituted in the 
Ground Rules, p. 3, on Rule C.(2)(a), for the language "slices up to 26, 
reimbursed at listed RVUs", the following statement: "slices up to 25, 
reimbursed at listed RVUs." The commission has also revised rule C.(2)(b), to 
substitute the number "25" for "26." This makes the slices references that 
follow after this make more sense; as originally proposed, it was unclear where 
an examination involving 26 slices would be considered. The commission has also 
deleted Ground Rule, p. 7, Section IV, Radiology Definitions, noting that the 
definition of Complete Examination under Section IV. A. duplicates what is 
already in rule I.E., and IV. B., Vascular System, should be deleted because 
this definition is not included in the 1990 CPT-4 book.
Regarding Radiology CPT codes, the commission has corrected a printing error in 
the August 1991 version; the relative value units for code 70450 are: 
professional 77.40, technical 232.30.
All of the commission-initiated amendments are made to correct or clarify 
mistakes, or confusions and contradictions, that were brought to the attention 
of the medical review staff as the general public used the August 1991 version 
of the Medical Fee Guideline as adopted under sec.134.200 of this title 
(relating to Medical Fee Guideline).
Comments against adoption of the Medical Fee Guideline as incorporated in the 
proposed section were received from many people who commented as individuals. 
The following groups and associations also commented against the adoption of the 
proposed section and incorporated fee guideline: Texas Academy of Family 
Physicians, Texas Medical Association, Texas Nurses Association, Texas 
Occupational Therapy Association, Texas Neurological Society, Texas Association 
of Physical Therapists, Texas Association of Orthotocists & Prosthestists, 
Medical Association (Workers' Compensation Task Force), American Academy of 
Orthotocists & Prosthestists, Texas Osteopathic Medical Association, Texas 
Psychological Association, Texas Society of Anesthesiologists, National 
Association of Social Workers of Texas, Texas Association of Nurse Anesthetists, 
Texas Bexar County Medical Society, Association of Medical Equipment Dealers, 
Baylor College of Medicine, Texas Society of Pathologists, Texas Radiological 
Society, Texas Physicial Therapy Association (Task Force on Workers' 
Compensation), Health Benefits Management, Physical Therapy Services, Care 
Clinic, Associated Health Focus, Dallas Central Physical Therapy, North Dallas 
Physical Therapy Association, Rehabilitation Associates of Northeast Texas, 
Lubbock Hand & Rehabilitation Center, Houston Hand Rehabilitation Center, Austin 
Physical Therapy Clinic, American Rehabilitation Center, Hedwig Village Physical 
Therapy, Baytown Back-To-Work Center, Pain and Rehabilitation Center, Texas 
Women's University (School of Physical Therapy), Pittman Creek Physical Therapy, 
University of Texas Health Science Center (San Antonio), Industrial & Family 
Practice Clinic of Hugo R. Gonzales and Associates, Campbell & Associates, Firra 
Therapeutics, Midland Physical Therapy, Northrock Paramedical Services, Inc., 
Southwest Physical Therapy Associates, Rehabilitative Care Systems of America, 
Waco Rehabilitation Institute, Dallas Central Physical Therapy, Brownsville 
Physical Therapy & Sports Medicine, The Center for Physical Therapy & Athletic 
Rehabilitation, Network for Physical Therapy, University of Texas Medical Branch 
at Galveston (Dept. of Physical Therapy), Vida Rehab Care, Inc., Orthopedic 
Rehabilitation Services, Workabilities, Center for Industrial Rehabilitation, 
Moerman & Associates, Back Wercs, Odessa Physical Therapy, P.C., Amarillo 
Physical Therapy Services, Texas Tech University HC, Texas Back Institute, KSF 
Orthopaedic Center, The Hand Center, South Texas Specialist Center (Internal 
Medicine), Sports Medicine Clinic of Southeast Texas, Scurlock Orthopedic 
Associates, Alamo Orthopedic Arthroscopic Surgery Association, Orthopedic Clinic 
of Richardson, Accu Pro Medical Billing & Services, Inc., Southwest Medical 
School (Baylor Hospital/Clinical Faculty), Orthopedic Specialty Associates, 
Dallas Anesthesiology Association, Pain Management Clinic, Dallas Pain Center, 
Pain Management Consultants of C.A.A., Diagnostic Neuroradiology, P.A., Witt 
Chiropractic Clinic, AC Medical, Biomedical Marketing, Staodyn, Inc., Wichita 
Medical Supply Company, Wilson Medical, Neuro Skeletal Center, Brazosport 
Surgical Clinic Association, Family Healthcare Center, Koch Physical Therapy, 
Sanger Physical Therapy, Memorial City Surgical Associates, South Texas 
Specialist Center, Vita Rehabilitation Care, Inc., Network for Physical Therapy, 
Cameron Family Medical Clinic, Plano Orthopedic & Sports Medicine Clinic, Texas 
Pain Management Associates, and Severence & Associates.
Comments in favor of adoption of this section and the incorporated guideline 
were received from Odessa Physical Therapy, Texas Association of Business, 
Motorola, Inc., and the Texas Association of Compensation Consumers as well as 
individuals.
The new section is adopted under Texas Civil Statutes, Article 8308, sec.2. 
09(a), which authorize the commission to adopt rules necessary to administer the 
Act; and sec.8.01(a), which authorize the commission to establish by rule 
medical policies and fee guidelines governing the provision and payment of 
medical services; and sec.8.21(a) and (b), which authorize the commission to 
establish rules that include fair and reasonable guidelines relating to the 
payment of fees for specific medical treatments or services.
sec.134.201. Medical Fee Guideline For Medical Services and Equipment Provided 
Under The Texas Workers' Compensation Act.
(a) The maximum allowable payment for medical services rendered to injured 
employees in accordance with the Texas Workers' Compensation Act is the Medical 
Fee Guideline, which is the lesser of:
(1) the provider's usual fees and charges; or
(2) the fees and charges established by use of a relative value scale under 
subsection (c) of this section.
(b) The maximum allowable payment for the purchase or rental of durable medical 
equipment is the lesser of:
(1) the provider's usual fees and charges; or
(2) the fees and charges established in the durable medical equipment section of 
the Medical Fee Guideline.
(c) The commission adopts by reference herein, a relative value scale used in 
conjunction with the 1990 CPT (Physicians' Current Procedural Terminology) as 
part of the Medical Fee Guideline for services rendered under the Texas Workers' 
Compensation Act. The guideline is published as the 1991 Texas Workers' 
Compensation Commission Medical Fee Guideline (December 1991 version), which is 
adopted herein by reference. The guideline shall be effective for all medical 
services rendered on and after the effective date of this section, and durable 
medical equipment prescribed. Copies of the guideline may be obtained from the 
Reprographics Department of the Texas Workers' Compensation Commission, 4000 
South IH-35, Southfield Building, Austin, Texas 78704.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on November 20, 1991.
TRD-9114606
Susan M. Kelley
General Counsel
Texas Workers' Compensation Commission
Effective date: December 11, 1991
Proposal publication date: September 10, 1991
For further information, please call: (512) 440-3972
       
TITLE 31. NATURAL RESOURCES AND CONSERVATION
Part II. Parks and Wildlife Department
Chapter 65. Fisheries and Wildlife
Subchapter T. Scientific Breeder's Permits
31 TAC sec.65.601
The Texas Parks and Wildlife Commission in a regularly scheduled public hearing 
held November 7, 1991, adopts amendments to 31 TAC sec.65.601 concerning 
Scientific Breeder's Permits without changes to the proposed text as published 
in the October 4, 1991, issue of the Texas Register (16 TexReg 5489).
The amendment complies with recent legislation, House Bill 1771, which permits 
mule deer to be propagated under a Scientific Breeder's Permit.
The rules are necessary to comply with House Bill 1771.
The rules will enable mule deer to be propagated under a Scientific Breeder's 
Permit.
No comments were received regarding adoption of the amendment.
The amendment is adopted under the Texas Parks and Wildlife Code, Chapter 43, 
Subchapter L, which provides the Texas Parks and Wildlife Commission with 
authority to establish conditions under which scientific breeder's permits shall 
be issued.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on November 21, 1991.
TRD-9114627
Paul M. Shinkawa
Director, Legal Services
Texas Parks and Wildlife Department
Effective date: December 12, 1991
Proposal publication date: October 4, 1991
For further information, please call: 1 (800) 792-1112, ext. 4976 or (512) 389-
4976
       
Part IX. Texas Water Commission
Chapter 335. Industrial Solid Waste and Municipal Hazardous Waste
Subchapter E. Interim Standards for Owners and Operators of Hazardous Waste 
Storage, Processing, or Disposal Facilities
31 TAC sec.335.112
The Texas Water Commission (TWC) adopts an amendment to  sec.335.112, concerning 
industrial solid waste and municipal hazardous waste, without changes to the 
proposed text as published in the September 13, 1991, issue of the Texas 
Register  (16 TexReg 5055).
The amendment is adopted in order to clarify the regulations which have been 
adopted by reference by removing the old dates of adoption and to clearly 
conform to the federal rules.
Section 335.112 is amended by correcting the date of the most recent publication 
of the Solid Waste Disposal Act; and deleting the reference to the regulations 
contained in 40 Code of Federal Regulations (CFR) Part 265, which were in effect 
as of June 4, 1987, and adopting by reference the regulations in 40 CFR Part 265 
as amended and adopted in the CFR through June 1, 1990, and including the 
Federal Register reference.
Sections sec.335.112(a)(1), (6), and (7) are amended by deleting the reference 
to amendments of August 14, 1989.
Subsection (a)(7) of this section is also amended by deleting the reference to 
sec.264.151(h)(2), as this subsection is included in sec.265.147(g)(2), and by 
deleting the reference to amendments of December 12, 1987.
Subsection (a)(10) of this section is amended by deleting the reference to the 
date of adoption of sec.265.273(a).
No comments were received regarding adoption of the amendment.
The amendment is adopted under the Texas Water Code, sec.5.103 and sec.5.105, 
which provides the Texas Water Commission with the authority to adopt any rules 
necessary to carry out its powers and duties under the Water Code and other laws 
of this state and to establish and approve all general policies of the 
commission.
The amendment is also adopted under the Texas Solid Waste Disposal Act, Texas 
Health and Safety Code, sec.361.024(a) (Vernon Supplement 1990), which 
authorizes the commission to adopt and promulgate rules consistent with the 
general intent and purposes of the Act and to establish minimum standards of 
operation for all aspects of the management and control of municipal hazardous 
waste and industrial solid waste, including rules relating to permitting 
standards for hazardous waste storage, processing, or disposal facilities. Under 
the Texas Solid Waste Disposal Act, sec.361.017(a) and (b), the Texas Water 
Commission is designated the state solid waste agency with respect to the 
management of all industrial solid waste and hazardous municipal waste and is 
required to seek the accomplishment of the purposes of the Act through the 
control of all aspects of industrial solid waste and municipal hazardous waste 
management by all practical and economically feasible methods consistent with 
the powers and duties prescribed under the Act and other existing legislation. 
Section 361.017(c) also grants to the commission the powers and duties 
specifically described in the Act and all other powers necessary or convenient 
to carry out its responsibilities.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on November 22, 1991.
TRD-9114711
John Vay
Director, Legal Services
Texas Water Commission
Effective date: December 13, 1991
Proposal publication date: September 13, 1991
For further information, please call: (512) 463-8069
       
Subchapter F. Permitting Standards for Owners and Operators of Hazardous Waste 
Storage, Processing, or Disposal Facilities
31 TAC sec.335.152
The Texas Water Commission (TWC) adopts an amendment to  sec.335.152, concerning 
industrial solid waste and municipal hazardous waste, without changes to the 
proposed text as published in the September 13, 1991, issue of the Texas 
Register  (16 TexReg 5056).
The amendment is adopted in order to conform to federal rules by clarifying 
which regulations have been adopted by reference.
Section 335.152 is amended to delete the reference to June 4, 1987, the date of 
adoption by reference of 40 Code of Federal Regulations (CFR) Part 264; and to 
add the adoption by reference of 40 CFR Part 264 as amended and adopted in the 
Code of Federal Regulations through June 1, 1990, and to add a reference to the 
Federal Register.
Subsection (a)(1) of this section is amended to delete references to amendments 
of August 14, 1989 and January 1, 1988 and to state that facilities subject to 
regulation under 40 CFR Part 264 Subpart X are subject to 40 CFR 
sec.264.15(b)(4) and sec.264.18(b)(1)(ii).
Subsection (a)(4) of this section is amended by adding the word "part" to 40 CFR 
264, and by deleting a reference to amendments of January 1, 1988.
Subsection (a)(5) of this section is amended by deleting a reference to 
amendments of August 14, 1989. An incorrect reference to sec.264.118(b)(2)(k) 
has been deleted and the correct reference to sec.264.118(b)(2)(i) has been 
added. Subsection (a)(6) of this section is amended by deleting a reference to 
amendments of August 14, 1989, January 1, 1988, and December 12, 1987.
No comments were received regarding adoption of the amendment.
The amendment is adopted under the Texas Water Code, sec.5.103 and sec.5.105, 
which provide the Texas Water Commission with the authority to adopt any rules 
necessary to carry out its powers and duties under the Water Code and other laws 
of this state and to establish and approve all general policies of the 
commission. The amendment is also adopted under the Texas Solid Waste Disposal 
Act, Texas Health and Safety Code, sec.361.024(a) (Vernon Supplement 1990), 
which authorizes the commission to adopt and promulgate rules consistent with 
the general intent and purposes of the Act and to establish minimum standards of 
operation for all aspects of the management and control of municipal hazardous 
waste and industrial solid waste, including rules relating to permitting 
standards for hazardous waste storage, processing, or disposal facilities. Under 
the Texas Solid Waste Disposal Act, sec.361.017(a) and (b), the Texas Water 
Commission is designated the state solid waste agency with respect to the 
management of all industrial solid waste agency with respect to the management 
of all industrial solid waste and hazardous municipal waste and is required to 
seek the accomplishment of the purposes of the Act through the control of all 
aspects of industrial solid waste and municipal hazardous waste management by 
all practical and economically hazardous waste management by all practical and 
economically feasible methods consistent with the powers and duties prescribed 
under the Act and other existing legislation. Section 361.017(c) also grants to 
the commission the powers and duties specifically described in the Act and all 
other powers necessary or convenient to carry out its responsibilities.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on November 22, 1991.
TRD-9114710
John Vay
Director, Legal Services
Texas Water Commission
Effective date: December 13, 1991
Proposal publication date: September 13, 1991
For further information, please call: (512) 463-8069
       
TITLE 34. PUBLIC FINANCE
Part IV. Employees Retirement System of Texas
Chapter 73. Benefits
34 TAC sec.73.11, sec.73.21
The Employees Retirement System of Texas adopts amendments to sec.73.11 and 
sec.73.21. Section 73.11 is adopted with changes to the proposed text as 
published in the October 4, 1991, issue of the Texas Register (16 TexReg 74). 
Section 73.21 is adopted without changes and will not be republished.
As a result of new actuarial assumptions and the consideration of the effects of 
Senate Bill 1331, 72nd Legislature, factors used to calculate an optional 
annuity's equivalent of the standard annuity and reserve tables used to 
determine the amount necessary to fund retirement benefits have been revised.
Annuities will be calculated and funded based on the new factors and reserve 
tables.
No comments were received regarding adoption of the amendments.
The amendments are adopted under Title 8, Texas Government Code, sec.815.105, 
which provides the Employees Retirement System of Texas with the authority to 
adopt mortality, service, and other tables the board considers necessary for the 
retirement system.
sec.73.11. Supplemental Retirement Program.
(a) For the purpose of this section:
(1) "Supplemental Program" is the program of retirement benefits for 
commissioned peace officers and custodial officers established by the Texas 
Government Code, Title 8, sec.824.107.
(2)  "Regular Program" is the retirement program available to members of the 
employee class generally.
(b) Age reduction factors for retirement from the supplemental program prior to 
age 50 are adopted by reference and are made a part of this rule for all 
purposes. Copies of the factors may be obtained from the executive director of 
the Employees Retirement System at 18th and Brazos Streets, P.O. Box 13207, 
Austin, Texas 78711-3207.
(c) Option factors for annuities, based on a retirement involving the 
supplemental program, are those applicable to the age of the retiree and nominee 
at the time payments under each program are to begin.
(d) The reserve factors for retirements with an effective date of January 31, 
1991-August 31, 1991, shall be those developed by the actuaries and based on the 
actuarial assumptions adopted by the board of trustees in September 1990. 
Reserve factors for retirements after September 1, 1991, based on the actuarial 
assumptions adopted by the board of trustees in September 1990, shall be those 
developed by the actuaries to recognize the pop-up feature. Reserve factors for 
disability retirement annuities effective after September 1, 1991, shall be 
based on assumptions developed by the actuaries and adopted by the board of 
trustees in November 1991. The reserve factors are adopted by reference and made 
a part of this rule for all purposes. Copies of these tables are available from 
the executive director of the Employees Retirement System of Texas at 18th and 
Brazos Streets, P.O. Box 13207, Austin, Texas 78711-3207.
(e) No payment shall be required to establish service credit in the supplemental 
program unless payment would be required to establish that credit in the regular 
program.
(f) Military service credit shall be creditable in the supplemental program only 
if, within 60 days of termination of covered employment, the member went into 
the military without intervening employment and the member resumed covered 
employment within 60 days of termination of military service.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on November 19, 1991.
TRD-9114650
Charles D. Travis
Executive Director
Employees Retirement System of Texas
Effective date: December 13, 1991
Proposal publication date: October 4, 1991
For further information, please call: (512) 467-3336
       
Chapter 77. Judicial Retirement
34 TAC sec.77.11
The Employees Retirement System of Texas adopts an amendment to sec.77.11, 
without changes to the proposed text as published in the October 4, 1991, issue 
of the Texas Register (16 TexReg 74).
As a result of new actuarial assumptions and the consideration of the effects of 
Senate Bill 1331, 72nd Legislature, factors used to calculate an optional 
annuity's equivalent of the standard annuity and reserve tables used to 
determine the amount necessary to fund retirement benefits have been revised.
Annuities will be calculated and funded based on the new factors and reserve 
tables.
No comments were received regarding adoption of the amendment.
The amendment is adopted under Title 8, Texas Government Code, sec.835.002 and 
sec.840.005, which provides the Employees Retirement System of Texas with the 
authority to adopt mortality, service, and other tables the board considers 
necessary for the retirement system.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on November 19, 1991.
TRD-9114649
Charles D. Travis
Executive Director
Employees Retirement System of Texas
Effective date: December 13, 1991
Proposal publication date: October 4, 1991
For further information, please call: (512) 867-3336
       
TITLE 43. TRANSPORTATION
Part I. Texas Department of Transportation
Chapter 21. Division of Right of Way
Control of Outdoor Advertising Signs
43 TAC sec.21.149
The Texas Department of Transportation adopts the repeal of sec.21.149, 
concerning licenses, without changes to the proposed text as published in the 
October 11, 1991, issue of the  Texas Register (16 TexReg 5728).
The 72nd Legislature, 1991, amended Texas Civil Statutes, Article 4477-9a, to 
become effective September 1, 1991, by providing for the outdoor advertising 
fees and for issuing outdoor advertising licenses for a period of one year or 
longer, both as determined by the Texas Transportation Commission. Therefore, in 
order to meet the requirements and the intent of the legislature, the department 
is repealing the existing section and replacing it with a new section which more 
accurately outlines the updated procedures and requisites.
No comments were received regarding adoption of the repeal.
The repeal is adopted under Texas Civil Statutes, Article 6666, which provide 
the Texas Transportation Commission with the authority to establish rules for 
the conduct of the work of the Texas Department of Transportation, and Texas 
Civil Statutes, Article 4477-9a, which provide the commission with the authority 
to adopt rules to regulate the orderly and effective display of outdoor 
advertising signs along interstate and federal-aid primary highways.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on November 22, 1991.
TRD-9114673
Diane L. Northam
Legal Administrative Assistant
Texas Department of Transportation
Effective date: December 13, 1991
Proposal publication date: October 11, 1991
For further information, please call: (512) 463-8630
       
The Texas Department of Transportation adopts new sec.21.149, concerning 
licenses, without changes to the proposed text as published in the October 11, 
1991, issue of the Texas Register (16 TexReg 5728).
The 72nd Legislature, 1991, amended Texas Civil Statutes, Article 4477-91, to 
become effective September 1, 1991, by providing for outdoor advertising fees 
and for issuing outdoor advertising licenses for a period of one year or longer, 
both as determined by the Texas Transportation Commission. Therefore, in order 
to meet the requirements and the intent of the legislature, the department is 
repealing the existing section and replacing it with a new section which more 
accurately outlines the updated procedures and requisites.
The new section replaces existing sec.21.149 which is simultaneously being 
proposed for repeal. New sec.21.149 provides for an initial license fee of $125 
for one year and an annual license renewal fee of $60 for each license. The 
section sets a deadline date of January 1, 1992 for renewing licenses issued 
prior to January 1, 1991, and also allows for the issuance of licenses for one 
year or longer.
On October 28, 1991, the department conducted a public hearing to receive data, 
comments, and views concerning the proposed new section. New comments were 
received.
The new section is adopted under Texas Civil Statutes, Article 6666, which 
provide the Texas Transportation Commission with the authority to establish 
rules for the conduct of the work of the Texas Department of Transportation, and 
Texas Civil Statutes, Article 4477-9a, which provide the commission with the 
authority to adopt rules to regulate the orderly and effective display of 
outdoor advertising signs along interstate and federal-aid primary highways.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on November 22, 1991.
TRD-9114674
Diane L. Northam
Legal Administrative Assistant
Texas Department of Transportation
Effective date: December 13, 1991
Proposal publication date: October 11, 1991
For further information, please call: (512) 463-8630
       
Control of Outdoor Advertising Signs
43 TAC sec.21.150
The Texas Department of Transportation adopts the repeal of sec.21.150 by 
federal mandate, concerning permit, without changes to the proposed text as 
published in the October 11, 1991, issue of the Texas Register (16 TexReg 5730).
In order to comply with Title 23, United States Code, sec.131(b), which mandates 
the regulation of outdoor advertising signs in areas adjacent to the Interstate 
System and the primary system, on penalty of reduction in federal-aid highway 
funds, the Texas Transportation Commission has determined that it is essential 
that final adoption be effective December 2, 1991.
Repeal of this section is necessary due to the contemporaneous adoption of new 
sec.21.150, which incorporates certain of the repealed provisions in an amended 
form and also includes updated requirements. The department has studied and 
analyzed the sign permit fees under the Litter Abatement Act, Texas Civil 
Statutes, Article 4477-9a, and the costs in administering the provisions of the 
Act, and has determined that the fees require adjustment and that the procedures 
should be expanded and clarified for permit periods, renewals, transfers, and 
cancellation. Therefore, the department is repealing the existing section and 
replacing it with a new section which more accurately outlines the updated 
procedures and requisites.
No comments were received regarding adoption of the repeal.
The repeal is adopted under Texas Civil Statutes, Article 6666, which provide 
the Texas Transportation Commission with the authority to establish rules for 
the conduct of the work of the Texas Department of Transportation, and Texas 
Civil Statutes, Article 4477-9a, which provide the commission with the authority 
to adopt rules to regulate the orderly and effective display of outdoor 
advertising signs along interstate and federal-aid primary highways.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on November 22, 1991.
TRD-9114672
Diane L. Northam
Legal Administrative Assistant
Texas Department of Transportation
Effective date: December 2, 1991
Proposal publication date: October 11, 1991
For further information, please call: (512) 463-8630
       
The Texas Department of Transportation adopts new sec.21.150 by federal mandate, 
concerning permits, without changes to the proposed text as published in the 
October 11, 1991, issue of the Texas Register (16 TexReg 5730).
In order to comply with Title 23, United States Code, sec.131(b), which mandates 
the regulation of outdoor advertising signs in areas adjacent to the Interstate 
System and the primary system, on penalty of reduction in federal-aid highway 
funds, the Texas Transportation Commission has determined that it is essential 
that final adoption be effective December 2, 1991.
The department has studied and analyzed the sign permit fees under the Litter 
Abatement Act, Texas Civil Statutes, Article 4477-9a, and the costs in 
administering the provisions of the Act, and has determined that the fees 
require adjustment and that the procedures should be expanded and clarified for 
permit periods, renewals, transfers, and cancellation.
The new section outlines permit eligibility, application and issuance, renewals, 
refunds and prorations, transfers, replacement, fees, expiration or 
cancellation, removal, and notice and appeal. The section provides for a permit 
fee in the amount of $96 for one year; a permit renewal fee of $40 per year; and 
a transfer fee of $25. The section also sets a deadline date of October 1, 1991 
for renewing sign permits issued before September 6, 1985. The new section 
replaces existing sec.21.150 which is simultaneously being repealed.
On October 28, 1991, the department conducted a public hearing to receive data, 
comments, and views concerning the proposed new section. No comments were 
received.
The new section is adopted under Texas Civil Statutes, Article 6666, which 
provide the Texas Transportation Commission with the authority to establish 
rules for the conduct of the work of the Texas Department of Transportation, and 
Texas Civil Statutes, Article 4477-9a, which provide the commission with the 
authority to adopt rules to regulate the orderly and effective display of 
outdoor advertising signs along interstate and federal-aid primary highways.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on November 22, 1991.
TRD-9114671
Diane L. Northam
Legal Administrative Assistant
Texas Department of Transportation
Effective date: December 2, 1991
Proposal publication date: October 11, 1991
For further information, please call: (512) 463-8630
       
  Texas Department of Insurance Exempt Filing 
Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L
(Editor's note: As required by the Insurance Code, Article 5.96 and Article 
5.97, the Register publishes notices of actions taken by the State Board of 
Insurance pursuant to Chapter 5, Subchapter L, of the Code. Board action taken 
under these articles is not subject to the Administrative Procedure and Texas 
Register Act.
These actions become effective 15 days after the date of publication or on a 
later specified date.
The text of the material being adopted will not be published, but may be 
examined in the offices of the State Board of Insurance, 333 Guadalupe, Austin.)
The State Board of Insurance of the Texas Department of Insurance has adopted 
the Texas Workers' Compensation Detailed Claim Information Statistical Plan (the 
Plan). The adoption of the Plan is necessary in order to develop and maintain a 
database for the research and cost containment efforts of the Texas Workers' 
Compensation Research Center and the Texas Workers' Compensation Commission.
The State Board of Insurance had approved a previous version of the Plan on an 
emergency basis, in Board Order Number 58573, dated July 11, 1991 (16 TexReg 
3984). A renewal of the effectiveness of this emergency action was approved by 
the board, in Board Order Number 59191, dated October 16, 1991. Pursuant to the 
Insurance Code, Article 5.96(c), notification of the proposed consideration and 
adoption was published in the October 18, 1991, issue of the Texas Register (16 
TexReg 5821).
This notification is made pursuant to the Insurance Code, Article 5.96, which 
exempts it from the requirements of the Administrative Procedure and Texas 
Register Act.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on November 22, 1991.
TRD-9114716
Linda K. von Quintus-Dorn
Chief Clerk
Texas Department of Insurance
Effective date: December 14, 1991
For further information, please call: (512) 463-6328
       
The State Board of Insurance has approved a filing by Crum and Forster Insurance 
Group of Basking Ridge, New Jersey proposing that the effective date of a rate 
revision to the currently approved Insurance Agents Errors and Omissions 
Liability Program be amended to February 1, 1992. This filing was originally 
approved to become effective December 1, 1991.
In accordance the Texas Insurance Code, Article 5.15(h), the rates approved 
shall be in effect for a period not to exceed two years from February 1, 1992.
This notification is made pursuant to the Insurance Code, Article 5.97, which 
exempts it from the requirements of the Administrative Procedure and Texas 
Register Act.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on November 22, 1991.
TRD-9114717
Linda K. von Quintus-Dorn
Chief Clerk
Texas Department of Insurance
Effective date: December 14, 1991
For further information, please call: (512) 463-6328
       
The Texas Department of Insurance has adopted amendments to the Texas Automobile 
Manual (the Manual) and the Standard Provisions for Automobile Policies (the 
Standard Provisions).
These amendments are being made as a result of a new statute designed as House 
Bill 2 in the 1991 regular session of the legislature.
That statute added to the Insurance Code a new Article 21.55 setting forth 
procedure for insurers in regard to prompt payment of claims.
The new requirements of Article 21.55 are incorporated into the Manual and the 
Standard Provisions by adoption of the following amendatory endorsement: 593-
Texas Personal Auto Policy; 4P-Mobilowners Policy, Mechanical Breakdown 
Policies; SI3 -Single Interest Auto Physical Damage Insurance Forms; MB2 -
Mechanical Breakdown Policies; NR2-Non-Resident Texas Auto Policy; and TE 00 
39A-Business Auto, Garage, and Truckers Coverage Forms.
The order also sets forth the Manual's index pages that are revised to 
incorporate the previous changes.
The amendments to the Manual and the Standard Provisions are adopted for 
policies to be effective on and after 12:01 a.m., January 1, 1992.
This notification is made pursuant to the Insurance Code, Article 5.96, which 
exempts it from the requirements of the Administrative Procedure and Texas 
Register Act.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on November 22, 1991.
TRD-9114714
Linda K. von Quintus-Dorn
Chief Clerk
Texas Department of Insurance
Effective date: December 14, 1991
For further information, please call: (512) 463-6328
       
The State Board of Insurance of the Texas Department of Insurance has adopted on 
a permanent basis, amendments to the Workers' Compensation and Employers' 
Liability Insurance Texas Unit Statistical Plan.
The State Board of Insurance has approved new codes and definitions for the 
reporting of losses occurring prior to January 1, 1991, and on or after January 
1, 1991, by companies writing workers' compensation and employers' liability 
insurance in the State of Texas. These amendments are revisions to Part IV, 
Injury Type of Code and Benefit Code; Part V, Correction Reports, Classification 
Code, Injury Type, Benefit Type, of Other Non-monetary Items; Part VIII, Injury 
Code, Benefit Code, and Definition of Benefit Type; and Part XI, Tables III, 
Tables for Other Than Surviving Spouses.
Pursuant to the Insurance Code, Article 5.96(c), notification of this proposed 
consideration and approval on a permanent basis was published in the October 18, 
1991, issue of the  31 point=8.03p set=8.03p>Texas Register (16 TexReg 5821). A 
previous version of the Plan was adopted by the State Board of Insurance on an 
emergency basis, in Board Order Number 58572, dated July 11, 1991, and in Board 
Order Number 58988 dated August 21, 1991. A renewal of the effectiveness of the 
emergency action taken in Board Order Number 58572 was approved by the board, in 
Board Order Number 59192, dated October 16, 1991.
This notification is made pursuant to the Texas Insurance Code, Article 5.96, 
which exempts it from the Administrative Procedure and Texas Register Act.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on November 22, 1991.
TRD-9114718
Linda K. von Quintus-Dorn
Chief Clerk
Texas Department of Insurance
Effective date: December 14, 1991
For further information, please call: (512) 463-6328