ADOPTED 
 RULES 
 
 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 16. ECONOMIC REGULATIONS 
 Part I. Railroad Commission of Texas 
  Chapter 3. Oil and Gas Division 
  
  Conservation Rules and Regulations 
 
  16 TAC sec.3.36 
 
  The Railroad Commission of Texas adopts an amendment to  sec.3.36, with 
changes to the proposed text as published in the November 4, 1994, issue of the 
Texas Register (19 TexReg 8746). 
 Adoption of the rule will expressly bring intentional releases of hydrogen 
sulfide under the provisions of sec.3.36, thereby protecting the public from an 
unreasonable risk of harm from exposure to hydrogen sulfide. The proposed 
amendments will require that operators notify the commission and activate their 
contingency plan prior to an intentional release of a potentially hazardous 
volume of hydrogen sulfide. 
 Several commenters expressed concern that the rule was not clear as to the 
volume of a release that constitutes a "potentially hazardous volume" of 
hydrogen sulfide. The commission believes that proposed definition of 
"potentially hazardous volume" of hydrogen sulfide is adequate. However, the 
text of the definition has been moved for clarification. 
 Several commenters stated that the proposed 48-hour advance notice on planned 
releases is excessive. The commission agrees. The notice requirement has been 
reduced to 12 hours in advance of planned intentional release, or as soon as 
possible in the event of an unplanned intentional release made in an emergency. 
 Two commenters felt that a written report was not needed. The commission agrees 
in part and has modified the written report requirement to only those planned 
releases where there is injury to person or property as a result of the release. 
 Several commenters stated that the requirements on planned releases should not 
apply if the release is flared. The commission disagrees. Flares can go out. If 
a potentially hazardous volume of hydrogen sulfide gas is being flared and the 
flare goes out, the general public could be put at risk of serious harm unless a 
contingency plan is activated. 
 One commenter stated that the rule should have guidelines to govern when 
venting, as opposed to flaring, hydrogen sulfide gas would be permitted. The 
commission agrees. Language has been added to allow venting of a potentially 
hazardous volume of hydrogen sulfide gas upon a showing that such venting will 
not present an unreasonable risk of harm to the public. 
 One commenter suggested that the rule allow for the calculation of a radius of 
exposure on intentional releases from pressurized vessels and pipelines using 
the known volume and release rate rather than using the absolute open-flow 
potential of the system as a whole. The commission agrees. Subsection (c)(3)(E) 
has been modified to allow for such a calculation. 
 The following commenters expressed general support for the amendment to 
sec.3.36 with some recommended changes: Texas Independent Producers & Royalty 
Owners Association, Texas Mid-Continent Oil & Gas Association, and Permian Basin 
Petroleum Association. The following commenter supported the amendment to 
sec.3.36: North Texas Oil & Gas Association. The following commenters did not 
express support for or opposition to the amendment to  sec.3.36, but did submit 
recommended changes: Association of Texas Intrastate Natural Gas Pipeline and 
Lone Star Gas Company. The following commenter expressed opposition to the 
amendment to sec.3.36 and provided recommended changes: Wagner & Brown, Limited. 
 The amendment is adopted pursuant to Texas Natural Resources Code, sec.sec.81. 
051, 81.052, 85.042, 85.202, 86.041, and 86.042, which authorize the commission 
to adopt rules to govern and regulate persons and their operations to prevent 
injury to persons and property. 
 
 
  sec.3.36. Oil, Gas, or Geothermal Resource Operation in Hydrogen Sulfide 
Areas. 
 
  (a) Applicability. Each operator who conducts operations as described in 
paragraph (1) of this subsection shall be subject to this section and shall 
provide safeguards to protect the general public from the harmful effects of 
hydrogen sulfide. This section applies to both intentional and accidental 
releases of hydrogen sulfide. 
 
  (1)-(2) (No change.) 
     
  (b) Definitions. 
 
  (1)-(9) (No change.) 
   
  (10)  Potentially hazardous volume of hydrogen sulfide -A volume of hydrogen 
sulfide gas of such concentration that: 
 
  (A) the 100 ppm radius of exposure is in excess of 50 feet and includes any 
part of a "public area" except a public road; or 
   
  (B) the 500 ppm radius of exposure is greater than 50 feet and includes any 
part of a public road; or 
   
  (C)  the 100 ppm radius of exposure is greater than 3,000 feet. 
     
  (11)  Contingency plan-A written document that shall provide an organized plan 
of action for alerting and protecting the public within an area of exposure 
prior to an intentional release, or following the accidental release of a 
potentially hazardous volume of hydrogen sulfide. 
   
  (12) Reaction-type contingency plan-A preplanned, written procedure for 
alerting and protecting the public, within an area of exposure, where it is 
impossible or impractical to brief in advance all of the public that might 
possibly be within the area of exposure at the moment of an accidental release 
of a potentially hazardous volume of hydrogen sulfide. 
   
  (13) Definition of referenced organizations and publications. 
 
  (A) ANSI-American National Standard Institute, 1430 Broadway, New York, New 
York 10018, Table I, Standard 253. 1-1967. 
   
  (B) API-American Petroleum Institute, 300 Corrigan Tower Building, Dallas, 
Texas 75201, Publication API RP-49, Publication API RP-14E, Sections 1.7(c), 
2.1(c) 4.7. 
   
  (C) ASTM-American Society for Testing and Materials, 1916 Race Street, 
Philadelphia, Pennsylvania 19103, Standard D-2385-66. 
   
  (D) GPA-Gas Processors Association, 1812 First Place, Tulsa, Oklahoma 74120, 
Plant Operation Test Manual C-1, GPA Publication 2265-68. 
   
  (E) NACE-National Association of Corrosion Engineers, P.O. Box 1499, Houston, 
Texas 77001, Standard MR-01-75. 
   
  (F)  DOT-Department of Transportation, Office of Pipeline Safety, 400 Seventh 
Street, S.W., Washington, D.C. 20590, Title 49, Code of Federal Regulations, 
Parts 192 and 195. 
   
  (G) OSHA-Occupational Safety and Health Administration, United States 
Department of Labor, 200 Constitution Avenue, NW, Washington D.C. 20270, Title 
29, Code of Federal Regulations, Part 1910.145(c) (4)(i). 
   
  (H) RRC-Railroad Commission of Texas, Gas Utilities Division, P.O. Drawer 
12967, Capitol Station, Austin, Texas 78711, Gas Utilities Dockets 446 and 183. 
       
  (c) General provisions. 
 
  (1)-(2)  (No change.) 
   
  (3) The volume used as the escape rate in determining the radius of exposure 
shall be that specified in subparagraph (A) -(E) of this paragraph, as 
applicable. 
 
  (A)-(D) (No change.) 
   
  (E)  For intentional releases from pipelines and pressurized vessels, the 
operator's estimate of the volume and release rate based on the gas contained in 
the system elements to be de-pressured. 
     
  (4)-(7) (No change.) 
   
  (8) Control and equipment safety provision: Operators subject to this 
provision shall install safety devices and maintain them in an operable 
condition or shall establish safety procedures designed to prevent the 
undetected continuing escape of hydrogen sulfide. For intentional releases of a 
potentially hazardous volume of hydrogen sulfide gas, the gas must be flared 
unless permission to vent is obtained from the commission or its delegate. 
Venting will be allowed only upon a showing that the venting will not pose an 
unreasonable risk of harm to the public. 
   
  (9) Contingency plan provision. 
 
  (A) (No change.) 
   
  (B) The purpose of the contingency plan shall be to provide an organized plan 
of action for alerting and protecting the public prior to an intentional 
release, or following the accidental release of a potentially hazardous volume 
of hydrogen sulfide. 
   
  (C) The contingency plan shall be activated prior to an intentional release, 
or immediately upon the detection of an accidental release of a potentially 
hazardous volume of hydrogen sulfide. 
   
  (D)-(M) (No change.) 
   
  (N) The Railroad Commission District Office shall be notified as follows if 
the contingency plan is activated: 
 
  (i) 12 hours in advance of an intentional release or as soon as a decision is 
made to release if such decision could not reasonably have been made more than 
12 hours prior to the release. 
   
  (ii) immediately in the case of an accidental release. 
   
  (iii) as soon as possible before or after an unplanned intentional release 
made in an emergency situation to prevent a possible uncontrolled release. 
     
  (O)-(Q) (No change.) 
     
  (10)-(13) (No change.) 
   
  (14) Accident notification. Operators shall immediately notify the appropriate 
Railroad Commission District Office of any accidental release of hydrogen 
sulfide gas of sufficient volume to present a hazard and of any hydrogen sulfide 
related accident. 
     
  (d) Reports required. 
 
  (1)-(2) (No change.) 
   
  (3) Releases of, and accidents related to, hydrogen sulfide. The operator 
shall furnish a written report to the district office within ten days of any 
accidental release of hydrogen sulfide gas of sufficient volume to present a 
hazard and of any hydrogen sulfide related accident, whether it be from an 
accidental or intentional release. 
     
  (e) (No change.) 
 
  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 March 14, 1995. 
 TRD-9503336 
  Mary Ross McDonald 
 Assistant Director, Legal Division, Gas Utilities/LP Gas 
 Railroad Commission of Texas 
    Effective date: April 7, 1995 
 Proposal publication date: November 4, 1994 
 For further information, please call: (512) 463-6832 
         
                   
  TITLE 19. EDUCATION 
 Part II. Texas Education Agency 
  Chapter 137. Professional Educator Preparation and Certification 
  
  Subchapter H. Alternative Certification of Teachers 
 
  19 TAC sec.137.231 
 
  The Texas Education Agency (TEA) adopts an amendment to  sec.137.231, 
concerning requirements for the alternative certification of teachers, with 
changes to the proposed text as published in the November 22, 1994, issue of the 
Texas Register  (19 TexReg 9265). 
 The amendment is necessary to provide enhanced safeguards that will help ensure 
the quality of professionals teaching in Texas classrooms. 
 The amendment clarifies the following issues regarding alternative teacher 
certification: program administration and supervision; applicant screening 
procedures; intern preassignment training requirements and documentation; mentor 
selection, training, and assignment to intern; scheduled time for mentors and 
interns; advisory committee composition, function, and responsibilities; program 
assessment procedures; and appropriateness of college coursework to meet the 
needs of intern teachers. 
 The change to sec.137.231(b)(3)(C) adds language to ensure teacher 
participation in an advisory committee to a collaborative that is developing a 
plan for an alternative teacher certification program (ACP). 
 The change to sec.137.231(b)(4) substitutes the word "must" for the word 
"shall" to strengthen the rule text regarding approval to increase the maximum 
number of interns in an ACP. 
 The change to sec.137.231(b)(6) adds language clarifying that the required 
preassignment and ongoing training shall apply to interns. 
 The change to sec.137.231(b)(9)(B) adds language requiring a minimum number of 
hours of mentor training to ensure mentors receive adequate training. 
 The change to sec.137.231(c)(3) adds the Pre-Professional Skills Test (P-PST) 
to the basic skills test requirement to accommodate out-of-state candidates. 
 The text of sec.137.231(c)(6) is reformulated to clarify requirements 
concerning an integrated, field-based approach to delivery of instruction and 
training. 
 The following comments were received regarding adoption of the amendment. 
 The Association of Texas Professional Educators (ATPE) recommended that the 
rule require greater teacher representation on the advisory committee. 
 The SBOE added language to sec.137.231(b)(3)(C) to require that no one category 
of representation on the advisory committee be larger than the K-12 teacher 
representation. 
 The following comments were received regarding mentor training. 
 The ATPE recommended that the rule require a minimum of 12 hours of mentor 
training to ensure consistency across ACPs. 
 The following commentators opposed requiring a minimum of 12 hours of mentor 
training: Texas Alternative Certification Association (TACA), Region 4 Education 
Service Center (ESC), Region 10 ESC, Region 18 ESC, University of Texas Pan 
American, Dallas Independent School District (ISD), Irving ISD, Texas 
Association of School Personnel Administrators (TASPA), and one member of the 
public. 
 The SBOE added language to sec.137.231(b)(9)(B) to require that the mentor 
training program be delivered in a minimum of 12 hours and include best 
practices for supporting and assisting interns throughout the internship period. 
The board believed that 12 hours of mentor training was necessary to ensure 
consistency among programs and adequate delivery of content in competency areas. 
 The following comments were received regarding preassignment training. 
 The ATPE recommended that the rule specify the number of semester hours and 
student contact hours an ACP must require to ensure a minimum amount of training 
before classroom assignment. 
 The ATPE, Texas State Teachers Association (TSTA), and the Texas Federation of 
Teachers (TFT) recommended that the rule require 45 clock hours of student 
contact experience, but that the rule be flexible with regard to qualifying 
experiences. 
 The following commentators opposed requiring 45 clock hours of student contact 
experience: TACA, Region 4 ESC, Region 10 ESC, Region 18 ESC, Region 20 ESC, 
University of Texas Pan American, Dallas ISD, Irving ISD, TASPA, and five 
members of the public. 
 The TACA recommended that the rule require 20 clock hours of student contact 
experience. 
 The SBOE modified the rule to require the ACP plan to include preassignment 
training incorporating a minimum of 20 clock hours of student contact 
experiences. The student contact experiences may entail a variety of classroom-
based experiences that are locally designed and approved by the committee of 
stakeholders. In addition, the rule requires a minimum of six semester hours of 
course work or a combination of semester hours and equivalent contact hours to 
be completed before assignment; and a minimum of six semester hours of course 
work or a combination of semester hours and equivalent contact hours to be 
completed before certification. 
 The following commentators recommended extending the time line for implementing 
the amended rule to the 1996-1997 intern cycle: TACA, Region 4 ESC, Region 10 
ESC, Region 18 ESC, University of Texas Pan American, Dallas ISD, Irving ISD, 
TASPA, and ATPE. 
 The SBOE agreed with this time line because it will allow ACPs ample time to 
understand and prepare for the new requirements and to give notice to 
prospective applicants. 
 The following commentators requested that, in sec.137.231(c)(3), the list of 
acceptable basic skills tests be expanded to include the Functional Academic 
Skills Test (FAST), Pre-Professional Skills Test (P-PST), and Texas Examination 
for the Certification of Administrators and Teachers (TECAT): TACA, Region 4 
ESC, Region 10 ESC, Region 18 ESC, University of Texas Pan American, Dallas ISD, 
Irving ISD, TASPA, and ATPE. 
 The SBOE added the P-PST to the list of tests to accommodate out-of-state 
candidates who enter an ACP. The board did not add the TECAT because certified 
teachers who have taken the TECAT have already given evidence of basic skills 
and, therefore, are exempt from this provision of the rule. The FAST was not 
included based on concerns related to test security. 
 The TACA recommended that, in sec.137.231(c)(4), the responsibility for 
providing evidence of a teacher's criminal record clearance be shifted from the 
teacher to the school district. 
 The SBOE did not make the change. By law, school districts already must perform 
criminal records checks for hiring purposes. Section 137.231(c)(4) would allow 
an intern to provide evidence of criminal record clearance outside the State of 
Texas. 
 The amendment is adopted under the Texas Education Code,  sec.13.035, which 
authorizes the State Board of Education to provide by rule for teacher and 
administrator certification programs as an alternative to teacher education 
programs. 
 
 
  sec.137.231. Requirements for the Alternative Certification of Teachers. 
 
  (a) General provisions. Approval of alternative certification of teachers by 
the State Board of Education (SBOE) is based on the following requirements. 
 
  (1) Alternative certification of teachers shall be a collaborative program 
among public schools, regional education service centers (ESC), and institutions 
of higher education and delivered through Texas public schools. 
   
  (2) The collaborative entities shall develop and implement a comprehensive 
field-based teacher preparation program based on the state-approved 
proficiencies for teachers, content competencies, current research, and best 
practice. 
   
  (3) The collaborative program shall have internal and external assessment 
procedures that focus on attainment of the proficiencies, student learning, and 
continuous improvement of program content and delivery. 
   
  (4) The program administrator or the district superintendent shall recommend 
an individual for teacher certification to the commissioner of education based 
on satisfactory completion of requirements of the approved program. 
   
  (5) Certificates that may be earned through an alternative certification 
program include any certificate or endorsement for a teacher that may be earned 
through the completion of an approved teacher education program for which a 
bachelor's degree is required. The following additional certificate areas are 
unique to alternative certification: Grades prekindergarten-6 elementary 
education, Grades prekindergarten-6 elementary bilingual, Grades 
prekindergarten-12 English as a second language (ESL), and Grades 
prekindergarten-12 generic special education. 
   
  (6) An individual admitted into an alternative teacher certification program 
that has been approved under this section shall be issued a probationary 
certificate that is valid for one calendar year. The probationary certificate 
may be extended for one additional year only according to the provisions of the 
Texas Education Code, sec.13.306. 
     
  (b)  Requirements for an approved plan. A collaborative that prepares 
teachers, as described in subsection (a)(1) of this section, must submit a 
collaboratively developed plan for SBOE approval before implementing the plan. 
The plan must address the following. 
 
  (1) Participating school districts, colleges, or universities must be 
accredited. 
   
  (2) The program shall address the educational needs of all children. 
   
  (3) A committee consisting of the major stakeholders shall assist and provide 
evidence of shared accountability in the design, delivery, evaluation, and major 
policy decisions of the program. The committee shall: 
 
  (A)  include teachers, administrators, ESC staff, faculty and administrators 
from institutions of higher education; 
   
  (B) reflect the cultural diversity of the region served; 
   
  (C) require that the teacher representation reflect each certification area 
offered and that no one category representation be larger than the K-12 teacher 
representation; and 
   
  (D) meet on a regular basis to review program design and implementation and 
make program refinements based on evaluation data. 
     
  (4)  The plan must include a description of available resources and an 
approved program budget that indicates commitment through adequate funding for 
establishing, implementing, evaluating, and maintaining the program. The plan 
shall indicate the maximum number of interns to be admitted to the program to 
assess adequacy of resources allocated for program operation. The commissioner 
of education must approve any increase beyond the SBOE-approved maximum number 
of interns to be admitted into the program. 
   
  (5) The plan must designate a program administrator with adequate, qualified 
staff to assure appropriate planning, screening, training, supervision, and 
assessment as indicated in a ratio of supervisors to interns. Lines of 
responsibility and communication with all entities involved must be clearly 
delineated. 
   
  (6)  The plan must include a calendar of program activities for the duration 
of each school year for which the program is approved. The calendar must include 
a deadline for accepting candidates into a cycle to assure adequate time for 
preassignment screening and preassignment and ongoing training for interns. 
   
  (7) The alternative certification plan must provide evidence of: 
 
  (A) state-approved teacher proficiencies integrated throughout the preparation 
program; 
   
  (B) a comprehensive delivery system through which proficiencies are acquired; 
   
  (C) a variety of teaching and learning experiences integrated into the 
delivery system; and 
   
  (D) an ongoing, comprehensive performance assessment system for the teacher 
candidates. 
     
  (8) The program must include: 
 
  (A) a supervised internship of at least one calendar year under the mentorship 
of an experienced, certified teacher or teachers in the subject area or areas or 
at the level for which the intern is to be certified; and 
   
  (B) provisions for release from teaching duties on a regularly scheduled 
basis: 
 
  (i)  for each intern to observe the teaching of the mentor teacher or other 
teachers and to confer with the mentor teacher; and 
   
  (ii) for each mentor teacher to observe, coach, and formatively assess the 
teaching of the intern. 
       
  (9) The program must provide for the selection, training, and support of 
mentor teachers. 
 
  (A) Selection criteria must include best practices for identifying mentor 
teachers. 
   
  (B) An orientation to the roles and responsibilities of mentoring shall be 
provided to each mentor upon assignment as a mentor and no later than the 
intern's first week of teaching. The mentor training program shall be delivered 
in a minimum of 12 hours and include best practices for supporting and assisting 
interns throughout the internship period. The training shall include the 
following areas: adult learners, stages of teacher growth and development, self-
reliance and motivation, stress management, interpersonal skills, formative 
assessment strategies, counseling, peer coaching and direct support, 
communication with parents, school culture, and cultural diversity. 
   
  (C) The program plan shall provide a process for regularly scheduled times for 
each mentor to communicate with program staff to discuss the intern's 
performance and progress. 
     
  (10) The program plan must provide evidence of equity in recruiting and 
retaining interns, especially among underrepresented populations, and a system 
of ongoing counseling, guidance, and support for interns. 
   
  (11) The program plan must delineate a comprehensive method for screening, 
admission, training, evaluation of intern performance, and recommendation for 
certification. 
   
  (12) The plan must provide evidence of ongoing, internal and external program 
assessment used to assure quality and continuous improvement. 
   
  (13) Follow-up data that attest to program and intern effectiveness must be 
maintained. 
     
  (c) Requirements for admission, assignment, and certification. Each program 
must assure and document that an applicant meets the following minimum 
requirements for admission as an intern to the alternative teacher certification 
program. 
 
  (1) The program shall publish and disseminate specific admission and retention 
policies for program entry and internship, including academic and performance 
standards, as well as prerequisite field experience. 
   
  (2)  Each applicant must hold a bachelor's or a higher level degree from an 
institution of higher education that was accredited or otherwise approved by a 
state department of education, a recognized governmental entity, or a recognized 
regional accrediting organization at the time the degree was conferred. Each 
applicant must have maintained a grade point average of no less than 2.50 on a 
four-point system on all semester hours attempted and on semester hours required 
for the certificate as specified in paragraph (5)(A) -(F) of this subsection. 
   
  (3) Applicants must possess basic skills in mathematics, reading, and writing 
as evidenced by acceptable scores on the state-mandated basic skills test; or 
the pre-professional skills test (P-PST) for out-of-state candidates. 
   
  (4) Applicants shall give evidence of state or national criminal record 
clearance before classroom assignment as interns. 
   
  (5) Applicants must have appropriate semester hours of transcript credit in a 
subject or combination of subjects to be taught and related to the certificate 
to be earned. 
 
  (A) For the Grades 6-12 secondary certificate, applicants must have 24 
semester hours in a subject included in Chapter 75 of this title (relating to 
Curriculum) for the secondary level of assignment. Twelve semester hours must be 
upper division. 
   
  (B) For the Grades prekindergarten-6 elementary certificate, applicants must 
have 24 semester hours in a combination of subjects taught in the elementary 
school that must include English, mathematics, a natural science, and a subject 
in the social studies. Applicants shall have at least three semester hours in 
each of the four areas. 
   
  (C) For the Grades prekindergarten-6 elementary bilingual certificate, 
applicants must have evidence of oral and written proficiency on a validated 
test of English and the language of the target population for bilingual 
education assignments. In addition, applicants must have 24 semester hours in a 
combination of subjects taught in the elementary school that must include 
English, mathematics, a natural science, and a subject in the social studies. 
Applicants shall have at least three semester hours in each of the four areas. 
   
  (D) For the Grades prekindergarten-12 ESL certificate, applicants must have 18 
semester hours in English, six of which must be upper division. 
   
  (E) For the Grades prekindergarten-12 generic special education certificate, 
applicants must have 24 semester hours in a combination of subjects taught in 
the elementary school that must include English, mathematics, a natural science, 
and a subject in the social studies. Applicants shall have at least three 
semester hours in each of the four areas. 
   
  (F) Courses that focus on topics closely related to the semester hour 
requirements listed in subparagraphs (A)-(E) of this paragraph may be accepted 
for admission to the alternative certification program; however, such 
substitutions shall not exceed six hours for the Grades 6-12 certificate or 
three semester hours for all other certificates. 
     
  (6) The program shall identify specific performance indicators consistent with 
state-adopted proficiencies and competencies to determine an individual's 
preparedness for classroom assignment, a curriculum for continued development 
during ongoing training, and an individual's readiness for licensure at the 
completion of internship. The program shall include: 
 
  (A) use of current research and best practice that focus on teaching, 
learning, and student achievement through a planned sequence of field-based 
experiences that integrate knowledge with application; 
   
  (B) a variety of student centered activities or services that are field-based, 
support the proficiencies, and that also provide experiences in public schools 
that reflect diverse cultural, socioeconomic, and grade level environments; 
   
  (C) curriculum and instructional knowledge and applications that include 
strategies to work with culturally diverse populations; 
   
  (D) preassignment training incorporating: 
 
  (i) a minimum of 20 clock hours of student contact experiences. The student 
contact experiences may entail a variety of classroom-based experiences that are 
locally designed and approved by the committee of stakeholders under subsection 
(b)(3) of this section; and 
   
  (ii) a minimum of six semester hours of course work or a combination of 
semester hours and equivalent contact hours; and 
     
  (E) six semester hours of course work or a combination of semester hours and 
equivalent contact hours to be completed before certification. 
     
  (7) An intern must have acceptable scores on appropriate state-adopted 
examinations of professional education and content knowledge in the teaching 
fields or delivery systems related to the certificate sought and the level of 
assignment. 
   
  (8) An intern must meet full appraisal requirements of the state and the local 
district under sec.149.41 of this title (relating to General Provisions). 
   
  (9) An intern must meet the performance levels as determined by the 
collaborative. 
     
  (d) Procedures for approval, review, and reapproval. 
 
  (1) An entity that chooses to prepare teachers using the alternative 
certification process must direct the program administrator to submit to the 
commissioner of education, before implementing a program, a collaboratively 
developed plan that specifies the means by which the entity shall fulfill the 
requirements for an approved plan under subsections (b) and (c) of this section. 
   
  (2)  The commissioner of education may approve plans for alternative teacher 
certification. Initial approval of alternative teacher certification plans shall 
not extend more than one year. Subsequent approval shall be contingent on 
satisfactory performance under the state-approved accountability system. The 
SBOE shall consider such performance when granting reapproval requests. 
   
  (3) The administrator of an approved alternative teacher certification program 
must submit to the commissioner of education an annual report that includes the 
names of candidates in the program and other information that may be required, 
including results of internal monitoring, review, and assessment of the program. 
   
  (4) Alternative teacher certification programs are subject to review by the 
Texas Education Agency (TEA). 
     
  (e)  Alternative certification program options. 
 
  (1) During the internship, the intern may pursue an additional certificate or 
additional subject areas at the same level of assignment by taking the 
appropriate state-mandated test for certification, provided that screening and 
all other requirements for the additional certificate or subject areas under 
this section are met. 
   
  (2) If an intern fails to complete all training and certification requirements 
within the internship year, the program administrator may apply to retain the 
intern in the alternative certification program only until the deficiencies are 
met, but not to exceed one additional year. The program administrator shall 
provide rationale for extension and the conditions under which requirements must 
be met. 
   
  (3) If the sponsor of an alternative certification program does not seek 
reapproval of the program or SBOE does not grant a reapproval request, interns 
currently enrolled in the program are provided an opportunity to complete 
requirements within a reasonable time. 
 
  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 March 22, 1995. 
 TRD-9503502 
  Criss Cloudt 
 Executive Associate Commissioner, Policy Planning and Information Management 
 Texas Education Agency 
    Effective date: April 12, 1995 
 Proposal publication date: November 22, 1994 
 For further information, please call: (512) 463-9701 
         
                     
  TITLE 22. EXAMINING BOARDS 
 Part XI. Board of Nurse Examiners 
  Chapter 217. Licensure and Practice 
  
  22 TAC sec.217.20 
 
  The Board of Nurse Examiners adopts new sec.217.20, concerning Minimum 
Procedural Standards During Peer Review, without changes in the proposed text as 
published in the February 3, 1995, issue of the Texas Register (20 TexReg 614). 
 This rule is being adopted to comply with Article 4525b, Section 1A, passed 
during the 73rd Legislative Session which specifies that a peer review committee 
afford the registered nurse minimum due process. The Board's Nursing Practice 
Advisory Committee was charged in the summer of 1994 with developing rules 
defining minimum due process rights of the RN in peer review. A subcommittee 
consisting of one member of the advisory committee, legal counsels representing 
the Board of Nurse Examiners, Texas Nurses' Association, Texas Hospital 
Association, and a private RN attorney met and edited the committee's 
recommended draft rules. On January 4, 1995, the Advisory Committee then met, 
reviewed and recommended a draft for the Board's consideration. 
 This rule defines the minimum due process rights of the RN within the Board's 
scope of authority. 
 The Board received comments from the Texas Department of Mental Health and 
Mental Retardation, Austin; Texas Association for Home Care, Austin; and two 
letters from Methodist Hospital, Lubbock, signed by members of their peer review 
committee and various nursing directors. 
 None of the commenters were opposed to the rule, but offered the following 
suggestions: Under sec.217.20(b)(1), a commenter suggested extending the minimum 
prehearing review from 30 to 45 days. Under subsection (b)(3), a commenter 
suggested the minimum preappearance review be shortened from 15 to 10 days. Two 
comments were received regarding sec.217.20(c) voicing opposition to the nurse's 
opportunity to appear before the committee and opposition to the nurse's 
opportunity to be represented by counsel. 
 The agency has considered each comment in light of case law regarding due 
process requirements and has determined that no changes should be made in the 
provisions for the nurse's opportunity for personal appearance and parity of 
legal representation. Since comments regarding the notice interval were received 
both for shortening and lengthening the time, the agency has determined that the 
notice interval should not be changed. 
 The new section is adopted under the Nursing Practice Act, (Texas Civil 
Statutes, Article 4514), sec.1, which provides the Board of Nurse Examiners with 
the authority and power to make and enforce all rules and regulations necessary 
for the performance of its duties and conducting 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 March 22, 1995. 
 TRD-9503517 
  Louise Waddill, Ph.D., R.N. 
 Executive Director 
 Board of Nurse Examiners 
    Effective date: April 12, 1995 
 Proposal publication date: February 3, 1995 
 For further information, please call: (512) 835-8675 
         
             
  TITLE 28. INSURANCE 
 Part II. Texas Workers' Compensation Commission 
  Chapter 134. Guidelines For Medical Services, Charges, And Payments 
  
  Subchapter K. Treatment Guidelines 
 
  28 TAC sec.134.1001 
 
  The Texas Workers' Compensation Commission adopts new sec.134.1001, concerning 
spine treatment guidelines, with changes to the proposed text as published in 
the September 20, 1994, issue of the  Texas Register (19 TexReg 7326). 
 The terms "guideline", "rule", and "section" are used interchangeably in this 
preamble and in the text of the rule. The majority of the revisions made to the 
rule were in response to public comment received, both in writing, and from 
testimony given by speakers at the public hearing held on January 12, 1995. 
These revisions are described in the summary of comments and responses portion 
of this preamble. Other revisions were made by staff and the commission for 
clarification purposes and also in response to public comments received: the 
word "medical" was added to (d)(1)(F); lead-in text was added to (e)(2)(A); the 
word "or" was removed from (e)(2)(A)(vi) and from (e)(3)(B)(v); a new 
subparagraph (Q) was added to (e)(2), consisting of the following language: 
"When it becomes necessary for an injured worker to travel in order to obtain 
appropriate and necessary medical care for a compensable injury, reimbursement 
for travel expenses is governed by sec.134.6 of this title (relating to Travel 
Expenses)."; and a new subparagraph (R) was added to (e)(2) , consisting of a 
CPT code disclaimer, stating that "The CPT codes used in the current Medical Fee 
Guideline should be used. The CPT codes listed in this subparagraph should not 
be used until they are adopted into a current Medical Fee Guideline." 
 Changes were made to (g)(2), (3), and (4) to more closely conform them to the 
tables in the rule. Changes made for clarification purposes to (g)(2), Primary 
Level of Care, are as follows: the following language was added to the first 
sentence: "however, the injured worker in this level of care may also be an 
early postoperative patient or may be experiencing an acute exacerbation of 
his/her chronic back pain"; the last sentence in the paragraph was deleted: 
"This level of care generally occurs in the first eight weeks post injury but 
can recur with and acute exacerbation of symptoms or postoperatively."; and the 
following three sentences were added to the end of the paragraph: "Little or no 
deconditioning has occurred due to the injury, immobilization, or decreased 
activity. The goal for this level of care is symptom control to facilitate rapid 
recovery and return to work before deconditioning or psychosocial barriers 
occur. The usual duration for this level of care is eight weeks." 
 In (g)(3), Secondary Level of Care, the first sentence, "This level of care is 
generally considered to be appropriate for injured workers demonstrating early 
deconditioning." has been rewritten as follows: "This level of care is the first 
stage of rehabilitation for those injured workers who have not returned to 
productivity through the normal healing process." The following language was 
added after the first sentence: "It is designed to facilitate return to 
productivity before the onset of chronic disability. It is individualized, time 
limited and of limited intensity. The injured worker has a history of a limited-
to-good response to early primary treatment with persistent symptoms limiting 
activities of daily living. The objective physical examination demonstrates 
findings suggestive of early deconditioning including loss of motion and/or 
strength with limitation of activities of daily living. Evidence of mental 
health or psychosocial barriers may be present which impede the injured worker's 
clinical progress." The next two sentences were deleted: "This level of care can 
also be used to prevent the development of physical deconditioning or 
psychosocial barriers which may prevent an early return to work. This level of 
care generally occurs within two months of injury but may occur at a later time 
if there was a delay in the initial treatment." The usual duration for this 
level of care was changed from four weeks to eight weeks; and the following two 
sentences were added at the end of the paragraph: "In addition to the normative 
duration listed, an additional two weeks is added to the secondary level of care 
for less intensive care if necessary at the termination of the tertiary level of 
care. Documentation of necessity must be included with the request for the 
additional two weeks." 
 Changes to (g)(4), Tertiary Level of Care, are as follows: the words "generally 
considered to be appropriate for injured workers who are unresponsive to the 
earlier levels of care" were deleted from the first full sentence of the 
paragraph; the second and third sentences, as follows, were deleted: "The 
programs provided at this level are considered to be of greater intensity than 
the preceding levels of care. An interdisciplinary approach to care is often 
utilized at this level." Next, the following language was added: "There is a 
documented history of persistent failure to respond to nonoperative or operative 
treatment which surpasses the usual healing period of four to six months post-
injury or post-surgery or special cases with severe mental health issues lasting 
more than two months without response to primary or secondary treatment. 
Psychosocial issues such as substance abuse, affective disorders, and other 
psychological disorders may be present. There is a documented inhibition of 
physical functioning evidenced by pain sensitivity, and nonorganic signs such as 
fear which produces a physical inhibition or limited response to reactivation 
treatment. This level of care may also be indicated for the injured worker whose 
physical capacity to work still does not meet the job requirements for heavy 
physical labor after adequate treatment, thereby causing an inability to return 
to full duty. This situation would be evidenced by an excessive transitional 
period of light duty or significant episodes of lost work time due to the need 
for continued medical treatment. This level of care is also indicated for those 
injured workers who cannot tolerate either primary or secondary levels of care." 
The next to the last sentence of the paragraph, " The level of care generally 
occurs several months after the injury has occurred.", was deleted; and, in the 
last sentence of the paragraph, the usual duration for this level of care was 
changed from four to six weeks. 
 Revisions for clarification purposes to Table II, Secondary Level of Care, 
include: the addition of "Interdisciplinary Programs, Chronic Pain Management, 
Work Hardening, and Outpatient Medical Rehabilitation" and the deletion of 
"Return to Work Programs" under the Types of Intervention category; the revision 
of the first sentence in the Return to Work Issues category, as follows, "The 
moderate level of severity is appropriate for a patient medically expected to 
return to work in less than six months, either with a full release or at 
minimally modified duty expected to last three months or less."; in the Failure 
to Respond category, the last sentence, as follows, was deleted: "Because 
secondary treatment requires the active cooperation of the injured worker, 
documented refusal to comply with the treatment recommendations may result in a 
determination that the injured worker has reached Maximum Medical Improvement 
(MMI)". 
 Revisions for clarification purposes to Table III, Tertiary Care are as 
follows: in the Clinical or Behavioral Indicators category, the reference in (6) 
to Section 7 of the Mental Health Treatment Guideline has been revised to the 
correct Texas Register rule format reference of subsection (i); under the 
Interdisciplinary Programs heading of the Types of Intervention category, the 
addition of "Work Hardening" and "Outpatient Medical Rehabilitation", and 
deleted "Return to Work Programs"; and in the Failure to Respond category, the 
last sentence, as follows, was deleted: "Because secondary treatment requires 
the active cooperation of the injured worker, documented refusal to comply with 
the treatment recommendations may result in a determination that the injured 
worker has reached Maximum Medical Improvement (MMI)." 
 Other revisions to the proposed rule for clarification are as follows: in Chart 
4, the Peri-Operative Treatment Duration, under the Asymptomatic Pre-Existing 
Conditions category, "History of Smoking"; in the Lumbar Section of Charts 
5A,5B, and 5C, CPT Code 20975 was added; the following language was inserted in 
(e)(2)(D), becoming new subparagraph (D): "Although preoperative educational 
programs and chronic pain management programs are not specifically outlined, the 
intent of this guideline is not to eliminate or prohibit their use. When deemed 
medically necessary, these programs may be considered appropriate types of 
intervention to be utilized."; and in Table I, Primary Level of Care, under 
Types of Intervention/Injections category, the word "therapeutic" was inserted 
before "facet injections". 
 The commission recognizes the importance of input from a wide variety of 
sources (including employees, employers, health care providers and insurance 
carriers) that went into the drafting of this guideline. This input was crucial 
in ensuring a broad-based rule that establishes parameters for spine treatment, 
but does not mandate or proscribe any particular treatments. The commission 
recognizes that this rule is the subject of great public interest, and has 
sought to give thorough consideration and response to all comments received, 
including several comments received after the 30-day comment period and after 
the public hearings. 
 The commission carefully and fully analyzed all the facts presented and the 
statutory objectives in formulating this guideline. In accordance with these 
statutory objectives and commission policy, the guideline balances the need for 
cost control and review with the need for access to quality medical care by 
establishing typical courses of treatment, but allowing treatment outside the 
set parameters with additional documentation of the need for the treatment. As a 
result, spine treatment will be scrutinized and reviewed, but all reasonable and 
necessary treatment will be provided. This is in accord with statutory 
objectives as well as commission policy and the facts before the commission. 
 As required by the Government Code, sec.2001.033(1), the commission's reasoned 
justification is set out in this preamble, which discusses the reasons why the 
rule is necessary, the factual, policy, and legal bases for the rule, a summary 
of comments received, names of interested groups or associations that commented 
and whether they are for or against adoption of the rule; and the reasons why 
the agency disagrees with the comments, submissions, and proposals. 
 This guideline is adopted to comply with a statutory mandate that the 
commission effect cost containment, as well as to fulfill the directives in the 
Texas Labor Code, sec.413.011 and  sec.413.013 that the commission establish 
guidelines for medical policies relating to necessary treatments for injuries 
that ensure the quality of medical care and achieve effective medical cost 
control (sec.413.011); and programs for prospective, concurrent, and 
retrospective review of the necessity of treatments administered sec.(413.013). 
 The guideline has been designed to achieve the following statutory and policy 
objectives: 
 1. to ensure quality health care to the injured workers of Texas; 
 2. to achieve effective medical cost control; and 
 3. to establish a program for prospective, concurrent, and retrospective review 
of the necessity of treatments. 
 The guideline achieves these objectives by: 
 1. assisting all parties with regard to the appropriate treatment and 
management of disorders of the spine in workers' compensation healthcare; 
 2. establishing a guideline against which aspects of care can be compared; 
 3. identifying clinically acceptable courses of treatment for spine disorders; 
 4. establishing documentation standards which support the appropriateness of 
the level of service for assessment/evaluation and on-going treatment; 
 5. providing a mechanism for prospective, concurrent, retrospective review to 
ensure efficient and effective health care utilization; and 
 6. establishing treatment parameters based on clinical indicators to determine 
the appropriate treatment at different levels of healing. 
 Back injuries comprise the largest group of injuries in the workers' 
compensation system. The most costly category of healthcare in the workers' 
compensation system is treatment for back injuries. Back injuries also account 
for the greatest loss of employee time from work. The Spine Treatment Guideline 
was developed to address this problem, as well as the issue of conservative and 
surgical treatment for spinal injuries. The guideline, through established 
criteria, documentation requirements, and timeframes, provides a basis for 
review of these treatments and services as required by statute to ensure quality 
medical care, cost control, and review of necessity of treatments. It also 
requires additional documentation/justification for treatment outside the 
guideline parameters. 
 The Medical Review Division, in conjunction with the Medical Advisory Committee 
(MAC), and a broad representation from the medical community have worked 
together to develop the Spine Treatment Guideline. By statute, the MAC is to 
advise the division in developing and administering the medical policies, fee 
guidelines, and utilization guidelines established under the Texas Labor Code, 
sec.413.011. The MAC advises the commission or professional organization in the 
review and revision of medical policies and fee guidelines required under the 
Texas Labor Code, sec.413.012. The MAC is composed of members from the following 
fields, appointed by the commission: public health care facility, private health 
care facility, a doctor of medicine, doctor of osteopathic medicine, a 
chiropractor, a dentist, a physical therapist, a pharmacist, a podiatrist, an 
occupational therapist, a medical equipment supplier, a registered nurse, a 
representative of employers, a representative of employees, and two 
representatives of the general public. 
 The Spine Treatment Guideline has taken over three years to develop. During 
1992 and the first half of 1993, two workgroups developed, in the coordination 
with Texas Workers' Compensation Commission staff, a document to present to the 
Medical Advisory Committee (MAC). The workgroups comprised of only medical 
doctors and doctors of osteopath, divided between surgical specialties of the 
spine and specialists in conservative care of the spine. The initial document 
presented to the MAC was titled "Draft #5". The chairpersons of the two 
workgroups, Tom Mayer, M.D. and David Selby, M.D., presented the document and 
discussed its contents in September of 1993. The document was accepted by the 
MAC as a document to review. Because the document did not have input from other 
health care providers besides medical doctors and doctors of osteopaths, the MAC 
formed a subcommittee of MAC members comprised of a physical therapist, an 
occupational therapist, a chiropractor, a medical doctor and an osteopath. Since 
the medical doctor on the MAC is a surgeon, it was agreed that there would be a 
rehabilitation specialist, that had worked on the original conservative 
workgroup, to be a liaison between this subcommittee and the original workgroup. 
During the reviewing and editing of the document this liaison gave the original 
workgroup's chairperson a copy of new drafts of the document. As the 
subcommittee worked on the document,subsequent drafts were presented at MAC 
meetings during the fall of 1993. In the spring of 1994, Draft #8 of the Spine 
Treatment Guideline was recommended by the MAC to be submitted to the 
commissioners. It was proposed for publication with staff changes initially in 
May of 1994. After that comment period, because of editorial changes, it was 
decided to repropose the document in September of 1994. Because of possible 
misinterpretation of comments during the public hearing in January, 1995, the 
MAC discussed at their meeting the same month, the draft that they had 
recommended to be presented to the Commissioners. It was by consensus that the 
MAC members stated that it had been Draft #8 that had been recommended by the 
committee. 
 The decision as to which treatments would go into the guideline, and the 
frequency and duration of those treatments was based on consideration of all 
statutory factors (discussed in the following paragraphs of this preamble), the 
input of the participants regarding treatments that are commonly used and 
medically accepted, recognized research studies, and consideration of all 
comments on the proposed rule. The research studies used as a reference and 
factual basis by the work group are reflected in the bibliography contained in 
the guideline. The knowledge, clinical expertise and qualifications of the work 
group members and the agency board and staff also served as the basis for the 
development and drafting of the guideline. The expertise was used to establish 
typical courses of intervention and to set documentation standards. 
 The clinical and diagnostic treatment guidelines contained in this new rule 
have been developed in conjunction with health care providers (as described 
above) and other parties in the workers' compensation system. The development 
process involved a national search of state agencies administering workers' 
compensation programs, which revealed that only a few states had developed 
treatment guidelines. Research revealed an algorithmic approach to be the most 
understandable format for the guideline. A survey of the successful guidelines 
developed in the private sector (listed in the bibliography) identified that 
involvement from health care provider work groups achieves the best outcome 
regarding clinical policy development. 
 The Spine Treatment Guideline clarifies those services that are reasonable and 
necessary for operative and nonoperative care to the spine for the injured 
workers of Texas. The guideline is not to be used as a fixed treatment protocol, 
but rather identifies a normal course of treatment, and reflects typical courses 
of intervention. It is anticipated that there will be injured workers who will 
require less or more treatment than the average. It is acknowledged that in 
atypical cases, treatment falling outside this guideline will occasionally be 
necessary. However, those cases that exceed the guideline level of treatment 
will be subject to more careful scrutiny and review and will require 
documentation of the special circumstances that justify the treatment. This 
guideline should not be seen as prescribing the type and frequency or length of 
intervention. Treatment must be based on patient need and professional 
judgement. The rule is designed to function as a guideline and should not be 
used as the sole reason for denial of treatments and services. 
 This guideline is to be used by health care providers as a tool to establish 
the required elements for all providers to initiate treatment. The insurance 
carrier should use this guideline to compare treatment prospectively, 
concurrently, and retrospectively with the predetermined elements contained in 
this guideline. The commission's primary mission in initiating and developing 
this guideline is to ensure appropriate parameters relating to necessary 
treatments for compensable injuries; to provide a tool for monitoring of the 
necessity of treatments administered; and to provide a tool to review typical 
healthcare treatment. 
 Quality of medical care is ensured by reliance upon input from experts and 
recognized studies in the field of spine treatment, and establishment of 
acceptable courses of treatment and treatment parameters for specific spine 
injuries. The guideline ensures access to health care and that quality care will 
be available in each individual case by its ground rules that allow for 
treatment outside the stated parameters. 
 Effective medical cost control is achieved by establishing parameters for 
eligibility and termination of treatment, by setting documentation standards 
which support the appropriateness of the treatment; by requiring additional 
documentation for treatment falling outside the guideline's parameter; and by 
providing that spine treatments are subject to the commission's separate rule 
requiring carrier preauthorization for certain treatments as a prerequisite to 
payment for the services. 
 The guideline allows for prospective, concurrent, and retrospective treatment 
by: setting standards for eligibility and treatment and setting documentation 
standards. These standards are to be used by health care providers as a basis 
for prospective review of possible treatment. The guideline and the 
documentation requirements should also provide the health care provider with a 
means to justify treatments when questioned concurrently or retrospectively by 
an insurance carrier. 
 The guideline and documentation also provide a starting point for carriers in 
conducting prospective, concurrent, or retrospective review of treatment. 
Finally, the Medical Review Division and the Compliance and Practices Division 
will also use the guideline and documentation as a tool for prospective, 
concurrent, and retrospective review of treatment, including use in conducting 
on-site audits of health care providers and insurance carriers. 
 The guideline also promotes quality health care, injury specific treatment and 
appropriateness of care, by facilitating communication between all parties in 
order to achieve rapid recovery from the effects of an injury. This 
communication will also promote a timely return to modified or full duty work 
that takes into account the job demands and the functional capabilities of the 
injured worker. 
 Written comments were received on the proposed new rule from: American Medical 
Electronics; Work Assessment Center, Inc.; The Center for Pain Medicine; 
Medtronic; HealthPlus Medical + Group; The Pain Clinic; Medical Center 
Anesthesia Associates, P.A.; Neurological Associates of Dallas; West Houston 
Doctor's Center; Healthsouth Dallas Rehabilitation Institute; Fort Worth 
Education and Research Foundation for Pain Management; Alamo Bone & Joint 
Clinic; Texas Medical Institute of Pain Specialists; the Texas Workers' 
Compensation Insurance Fund; Biofeedback Associates; NIX Health Care System; The 
Pain Management Centers of South Texas; The Center for Orthopedic Surgery; Pain 
& Health Management Center; Mid-Cities Headache & Pain Medicine Center; Texas 
Association of Business; Texas Osteopathic Medical Association; PRIDE; The 
University Center for Pain Medicine and Rehabilitation at Hermann; Texas Pain 
Institute; UT-MD Anderson Cancer Center and Hospital; Pain Care Center Pain 
Program; University of Texas Southwestern Medical Center at Dallas; Baylor 
Center for Pain Management; SPORTSMED Rehabilitation Center & Clinic; Texas 
Neurological Society; Medical Psychiatric Association; Business Insurance 
Consumers' Association; Texas Medical Association; The Health Industry Council; 
Center for Psychiatric Medicine; The Pain & Rehabilitation Institute; Active 
Back Rehabilitation Center, P.A.; Texas Institute of Pain Medicine, Inc.; 
Productive Institute of Dallas; National Pain Institute of Texas; EBI Medical 
Systems, Inc.; Health Benefit Management, Inc.; and 96 individuals. 
 Representatives from the following associations and individuals gave testimony 
at the public hearing held on January 12, 1995: the American Insurance 
Association; the Texas Medical Association; Healthsouth Spine & Rehabilitation 
Center; American Medical Electronics, Inc; the Texas Chiropractic Association; 
the Texas Association of Business; Omega Rehabilitation Center; the Texas 
Workers' Compensation Insurance Fund; the Texas Osteopathic Medical Association; 
the Business Insurance Consumers' Association; and 24 individuals. 
 Those commenters expressing overall support of the proposed rule are NIX Health 
Care System; the Pain Management Centers of South Texas; the Center for Pain 
Medicine; West Houston Doctors' Center; Medtronic; Healthplus Medical Group; 
Texas Pain Institute; American Medical Electronics; Medical Center Anesthesia 
Associates, P.A.; Veterans Affairs Medical Center; the Pain & Rehabilitation 
Institute; Pain Management Consultants, P.A.; Pain & Health Management Center; 
the Texas Workers' Compensation Insurance Fund; the American Insurance 
Association; and 19 individuals. 
 Those commenters expressing overall opposition to the proposed rule are: Mid-
Cities Headache & Pain Medicine Center; Active Back Rehabilitation Center, P.A.; 
the Center for Psychiatric Medicine; Texas Medical Institute of Pain 
Specialists; PRIDE; American Medical Electronics; Texas Back Institute; 
SPORTSMED Rehabilitation Center and Clinic; Texas Osteopathic Medical 
Association; Productive Rehabilitation Institute of Dallas for Ergonomics; and 
17 individuals. 
 Following is a summary of comments received and the agency's responses. 
 The following comments were received regarding the application tables. 
 COMMENT: In the Application Tables for Consulting and Referral Doctors, 
commenters recommended that diagnostic procedures should be listed as a 
function. 
 RESPONSE: The commission disagrees. By definition, a consulting doctor cannot 
initiate either diagnostic or therapeutic services, and a referral doctor may 
initiate diagnostic or therapeutic services only with the consent of the 
treating doctor. 
 COMMENT: Several commenters suggested that the phrase "Clear need for 
preauthorization documentation in evidence of record" be clarified in the 
Application Tables (B) Ongoing Treatment. 
 RESPONSE: The commission agrees that it is not clear. This phrase has been 
deleted because it involves preauthorization. 
 COMMENT:In the application table addressing Ongoing Treatment, the Insurance 
Carrier box, a suggestion was made to combine items 1 and 2 to read as 
follows:"Concurrent case management and bill review activities should address 
and focus on adherence to treatment plans, clinical progress, return to work 
issues, medical necessity, and the following: 
 a. Injured worker compliance with treatment; 
 b. Services provided consistent with treatment plan; 
 c. Response to treatment; 
 d. Improvement in injured workers' progress; 
 e. Recommendations for changes in treatment in situations where there is no 
compliance, plateau, and/or there is minimal or no progress; and 
 f. Achievement of goals, improvement sooner than treatment plan indicated." 
 RESPONSE: The commission agrees. The guideline has been revised to include the 
recommended language. 
 COMMENT: In the application table addressing Ongoing Treatment, Insurance 
Carrier Column, it was suggested to use the following language: "Within 24 
hours, insurance carrier responds verbally and within three days, insurance 
carrier responds with written report. Denials require clear explanation of 
reason." 
 RESPONSE: The commission disagrees with the suggested revision. References to 
the specific contents of the preauthorization rule have been deleted from the 
guideline. A sentence has been inserted in the guideline which states: 
"Preauthorization of any treatments or services will be as required in the 
commission's preauthorization rule." 
 COMMENT: One commenter suggested that the title "Application Tables" be changed 
to "Treatment Tables". 
 RESPONSE: The commission disagrees. The Application Tables apply not only to 
treatment but also to evaluation/assessment and documentation requirements. 
 COMMENT: Concern was expressed by the commenter that the application tables do 
not specifically outline the process by which the insurance carrier and the 
health care provider coordinate the provision of care to the injured worker. The 
commenter suggested that this process be specifically delineated in this 
document to provide a uniform approach for the coordination of care. 
 RESPONSE: The commission disagrees. This process is outlined in the Application 
Table, subsection (d)(2)(A), (B), and (C). Coordination is accomplished through 
communication in the form of timely reporting, documentation of care, and review 
of the care provided. 
 COMMENT: One commenter suggested that diagnostic procedures be added to the 
functions of the consulting and referral doctors in the Assessment Tables. 
 RESPONSE: The commission disagrees. The consulting and referral doctors should 
be performing diagnostic procedures only with the knowledge and consent of the 
treating doctor. Adding these procedures to the consulting and referral doctor 
areas would imply that these doctors could bypass the treating doctor in 
developing the treatment plan for the injured worker. 
 COMMENT: Concern was expressed that the Spine Treatment Guideline (STG) does 
not specifically outline the insurance carrier's medical audit process. A 
suggestion was made to either add that section or to reword that section to 
state: "This guideline serves as an additional tool to assist insurance carriers 
with the review of the medical audit process." 
 RESPONSE: The commission agrees with the suggested revision. The guideline has 
been revised in subsection (d)(1)(B)(iii) to read as follows: "This guideline 
serves as a tool to assist the insurance carriers in the medical audit process." 
 COMMENT: Several commenters suggested that, in subsection (d)(1)(E), a 
statement be included regarding any action that may be allowed against the 
injured worker if non-compliance with the treatment protocols is demonstrated, 
similar to the statement addressing injured worker non-compliance in tertiary 
care. 
 RESPONSE: The commission disagrees. References combining patient noncompliance 
with a resultant determination of Maximum Medical Improvement were deleted from 
the treatment guideline. This issue will be addressed in proposed amendments to 
other commission rules. 
 COMMENT: Concern was expressed by a commenter that there is no place in the 
guideline that delineates a mechanism for the various reviews mentioned in the 
statement, "The guideline has been designed to achieve the following goals: 5) 
Provide a mechanism of prospective, concurrent, retrospective review for 
efficient and effective health care utilization." Each review mentioned should 
have the mechanism of review presented to enable the physician and the injured 
worker to better understand the reasoning behind such reviews; the integral 
parts of data to be reviewed, and the outcome of such reviews, and the possible 
effects on the injured worker of such outcome decision. Providing a mechanism 
would allow for a more standard review. 
 RESPONSE: The commission disagrees. The Application Tables provide a basic 
outline of the insurance carrier's responsibilities regarding prospective, 
concurrent and retrospective review of the injured worker's plan of care. 
 COMMENT: One commenter was concerned that the guideline do not outline the 
responsibilities of the employer to interact with the health care provider and 
injured worker to ensure a rapid return to work, including a return to light 
duty or modified work. 
 RESPONSE: The commission agrees. A new subparagraph regarding employer 
responsibilities has been added to subsection (d)(1) which is titled "(F) 
Employer" and which states: "It is the responsibility of the employer to report 
the compensable injury in a timely fashion to ensure that there is no delay in 
the treatment of the compensable injury. It is also the responsibility of the 
employer to work with the insurance carrier and health care providers to ensure 
that the injured worker is afforded the opportunity to return to work in either 
a modified or full employment capacity as rapidly as possible within the medical 
limitations of his/her injury." 
 COMMENT: A commenter suggested that subsection (d)(1)(D), regarding the 
consulting or peer review health care provider, be expanded to require the 
following: 
 a. the doctor selected by the Medical Review Division for peer review should be 
certified as a peer review in accordance with his/her respective practice Act; 
 b. the doctor selected by the Medical Review Division for peer review should 
not derive more than 5% of his/her total income from performing this type of 
service for insurance carriers or audit companies; and 
 c. the doctor selected by the Medical Review Division for peer review opinions 
must have equivalent training and experience as the provider regarding the 
disputed services and/or procedures. 
 RESPONSE: The commission disagrees that the qualifications of a peer reviewer 
need to be outlined in a treatment guideline. The purpose of the treatment 
guideline is to outline services that are considered reasonable and necessary 
for both operative and nonoperative care to the spine for the injured worker. 
The delineation of any qualifications for peer reviewers is a separate issue and 
needs to be addressed in a separate rule. 
 The following comments were received regarding ground rules. 
 COMMENT: A suggestion was made by a commenter to delete any reference to 
specific time frames when referencing the preauthorization rule due to the 
proposed changes in that rule. 
 RESPONSE: The commission agrees. References to the specific contents of the 
preauthorization rule have been deleted from the Guideline. A sentence has been 
inserted in the guideline as Ground Rule (O) which states: "Preauthorization of 
any treatments or services will be as required in the commission's 
preauthorization rule." 
 COMMENT: Several commenters suggested that, in the surgical algorithms, a CPT 
code (20975) for the operative placement of the SpF spinal fusion implant be 
included. A suggestion was also made to include a CPT code (20974) in charts 5A, 
5B, and 5C. 
 RESPONSE: The commission agrees with the inclusion of code 20975 in the 
guideline. The CPT code 20975 has been added to Chart 5A, 5B, and 5C in the 
algorithms, and Ground Rule (M) was rewritten as follows: "Indications for bone 
growth stimulators (internal and external) (CPT codes 20974 and 20975) include: 
 a. Revision spinal fusion 
 b. History of spinal fusion or delayed union at different levels 
 c. Multiple level spinal fusion 
 d. Use of allograft 
 e. Spondylolisthesis greater than grade two 
 f. Nonassociated high risk problems such as metabolic bone disease, smoking, 
diabetes, and obesity." 
 Code 20974 was not added to the charts because it is not listed as an invasive 
procedure. 
 COMMENT: Two commenters suggested a re-write of the section concerning early CT 
scans to read as follows: "Documentation of significant neurological deficit, 
clinical findings, or recommendations of a consulting doctor, may support . . 
.". Additional commenters noted that intractable pain should be included as an 
indicator for the acutely injured worker to receive such diagnostic studies as 
CT scans and MRIs. 
 RESPONSE: The commission disagrees. The recommendations regarding the early use 
of CT scans and MRIs contained in the guideline reflect the research presented 
to the commission by the work group and MAC. 
 COMMENT: Concern was expressed regarding the proposal that access to CT scans 
and MRI studies be limited to those injured workers who displayed focal 
neurological deficits. It was felt that these tests should also be made 
available to those injured workers who failed a brief trial of conservative 
treatment during the initial six weeks after injury. 
 RESPONSE: The commission disagrees. The recommendations regarding the early use 
of CT scans and MRIs contained in the guideline reflect the research presented 
to the staff by the work group and MAC. 
 COMMENT: Commenters expressed multiple concerns regarding the description of 
the mental health evaluation and treatment as it applies to the work hardening 
program. The comments were as follows: 
 a. The guideline did not provide specific information regarding the provision 
of individual mental health treatment during the course of a work hardening 
program, although references were made to an initial evaluation and group 
counseling. 
 b. The clarification of what psychological services should and should not be 
contained within work hardening should be addressed with the additional 
sentence: "psychological services other than those noted above are not 
considered part of work hardening." 
 c. "Language specifying the focus of this (work hardening) evaluation" was not 
clearly outlined in the guideline. 
 d. The guideline did not provide a clear statement indicating that "all other 
individual mental health services are separate from work hardening and require 
preauthorization." 
 e. A suggestion was made to keep references to the Mental Health Treatment 
Guideline (MHTG) intact in the Spine Treatment Guideline. 
 f. In addition, the following revision was suggested regarding reimbursement 
issues: "Group counseling should be billed at the global fee rate for work 
hardening. All other psychological services should be billed separate from work 
hardening at the rate prescribed in the Fee Guidelines." 
 RESPONSE: The commission agrees with the suggestion to clarify whether 
individual mental health treatment is included in the work hardening program. 
This section has now been revised to include the following sentence: "Individual 
therapy (i.e., one-to-one therapy) with a Qualified Mental Health Provider is 
not considered to be part of the Work Hardening program." This answers (a) and 
(b) of the comments. 
 The commission disagrees with the remaining suggestions for the following 
reasons: 
 a. The focus of any mental health evaluation, including that performed for a 
work hardening program, is contained within the Mental Health Treatment 
Guideline. 
 b. Preauthorization is not addressed in this guideline. The guideline refers 
the health care provider to the preauthorization rule for clarification of the 
need for preauthorization of services rendered to the injured worker. 
 c. References to the Mental Health Treatment Guideline are present in 
subsection (g), Tables II and III. 
 d. Issues specifically addressing reimbursement are not a component of this 
guideline. That issue is within the domain of the Medical Fee Guideline. 
 COMMENT: A recommendation was made that the three hour mental health evaluation 
(without preauthorization) have a time limit, such that, after a specified 
period of time, additional evaluation(s) would be allowed without the need for 
preauthorization. The time interval suggested was six months. One commenter 
suggested the following revision: "If three hours of evaluation services have 
been provided during the previous six month period, then preauthorization is 
required for the additional services." 
 RESPONSE: The commission disagrees. The concern expressed by the commenters is 
addressed in the Mental Health Treatment Guideline, and the recommendations, as 
outlined in that guideline, should be followed regarding the evaluation and 
treatment of any associated mental health disorder. 
 COMMENT: Concern was expressed that, in revision, the section regarding how 
mental health services were to be billed was deleted from the guideline. 
 RESPONSE: The commission disagrees that billing should be addressed in this 
treatment guideline. The guideline does not address the issue of reimbursement. 
The purpose of a treatment guideline is to address the diagnosis, treatment, and 
rehabilitation of the injured worker. Reimbursement of the services described in 
the treatment guideline are discussed in detail in the Medical Fee Guideline. 
 COMMENT: Concern was expressed that the allowance of a three hour mental health 
evaluation, without preauthorization, prior to the initiation of a work 
hardening program would lead to an abuse/overuse of this service. 
 RESPONSE: The commission agrees with the concerns expressed by the commenters. 
Subsection (e)(2)(I) has been rewritten and issues relating to preauthorization 
have been deleted because it is addressed in a separate rule. 
 COMMENT: A suggestion was made to re-write subsection (e)(2)(I) as follows: 
"Work hardening programs may include a psychotherapy/behavioral medicine/pain 
management group as part of the recovery process, usually not individual 
therapy. This group must be conducted by a qualified mental health provider. 
Separate preauthorization for this type of therapy is not required. However, in 
an attempt to determine the injured workers' readiness for work hardening, a 
mental health evaluation provided one-to-one by a qualified mental health 
provider, may be performed prior to admission into the program. Referral for 
this evaluation must come from the treating doctor." 
 RESPONSE: The commission agrees with the need to clarify subsection (e)(2) (I). 
The rewritten paragraph is consistent with the Medical Fee Guideline and 
includes the issues of individual therapy, Qualified Mental Health Provider, and 
the statement regarding referral. In addition to the commenters' changes, 
references to preauthorization have been deleted because it is addressed in a 
separate rule. This paragraph has been revised to read: "An initial mental 
health evaluation to determine the injured worker's readiness for the Work 
Hardening program may be performed prior to entrance into the program. This 
evaluation is not considered part of the Work Hardening program. Group therapy, 
provided by a Qualified Mental Health Provider, is considered to be part of the 
Work Hardening program. Individual therapy (i.e., one-to-one therapy with a 
Qualified Mental Health Provider) is not considered to be part of the Work 
Hardening program. Referral for this evaluation must come from the treating 
doctor." 
 COMMENT: Concern was expressed that subsection (e)(2)(K), as currently written, 
would lead to overutilization of the system. 
 RESPONSE: The commission disagrees. In that section, the guideline states that 
documentation should be provided which outlines the clinical progress of the 
injured worker and shows evidence of the doctor's supervision. In subsection 
(e)(2)(A)(iii) and (iv) and in subsection (g)(5), the guideline states that the 
treatment of the injured worker should be provided in the least intensive 
setting and should be cost effective. 
 COMMENT: Concern was expressed that the consensus document presented by the 
combined work group and the MAC did not include "cumulative duration": the 
intent of the described document did not intend to have cumulative durations but 
to have specific durations of eight, twelve, and sixteen weeks respectively for 
primary, secondary, and tertiary care. 
 RESPONSE: The commission disagrees. Draft Eight of this guideline, which was 
reviewed by the MAC prior to its presentation to the commission, did contain the 
word "cumulative". 
 COMMENT: A suggestion was made to specifically mention back school and 
preoperative education in the ground rules addressing the need for patient 
education. A suggestion was also made to include patient education as part of 
any pain management program. 
 RESPONSE: The commission agrees that patient education needs to be clarified. 
Some of the components of a patient education program are listed in the tables 
outlining the levels of care. The commission recommends the formation of a work 
group at a later date to address both criteria for the preoperative education 
program and pain management programs. A ground rule has been added to the 
guideline which states: "Although preoperative educational programs and chronic 
pain management programs are not specifically outlined, the intent of this 
guideline is not to eliminate or prohibit their use. When deemed medically 
necessary, these programs may be considered appropriate types of intervention to 
be utilized." In addition, the commission recommends the formation of a work 
group at a later date to address both criteria for the preoperative education 
program and pain management programs. 
 COMMENT: Concern was expressed regarding the requirements present in the 
guideline requiring the treating doctor and other involved health care providers 
to inform the injured worker differentiating between treatment that is causally 
related to the injury and treatment that is not causally related to the 
compensable injury. The concerns were specifically addressed regarding informing 
the injured worker of his probable responsibility for payment for those services 
not causally related to the compensable injury. A form was suggested by the 
commenter, similar to forms used by Medicare and Medicaid, that should be signed 
by the injured worker upon receiving this information, thereby documenting his 
comprehension of payment responsibility for treatment not related to the 
compensable injury. 
 RESPONSE: The commission disagrees. The requirements outlined in the guideline 
regarding the need for the treating doctor to separate those symptoms and 
treatments causally related to the compensable injury from those unrelated to 
the compensable injury is not a new requirement. This responsibility has been 
present since the enactment of this law. This section is simply reiterating the 
need to separately treat and charge for both compensable and noncompensable 
signs and symptoms appropriately. The required development and use of an 
additional form would not speed the process and would only increase the amount 
of paperwork required for each injury. 
 COMMENT: Several commenters suggested that subsection (e)(4) include 
complications of treatment with examples. 
 RESPONSE: The commission disagrees. The section referred to by the commenter 
refers to documentation requirements for unrelated or intercurrent illness. 
Causal relation to a given injury needs to be determined by the treating doctor 
and may vary with each case. 
 COMMENT: Concern was expressed that, in subsection (e)(2)(F), allowing the 
injured worker to move freely between the levels of care, dependent upon the 
clinical indicators, would lead to overutilization and abuse of the system of 
care. 
 RESPONSE: The commission disagrees. In that subsection (e)(2)(K), the guideline 
states that documentation should be provided which outlines the clinical 
progress of the injured worker and shows evidence of the doctor's supervision. 
In subsection (e)(2)(A)(iii) and (iv) and in subsection (g)(5), the guideline 
states that the treatment of the injured worker should be provided in the least 
intensive setting and be cost effective. 
 COMMENT: A suggestion was made to substitute "will" for "should" in several 
places in the guideline: 
 a. Subsection (e)(2)(D) 
 b. Subsection (e)(2)(K) 
 c. Subsection (e)(3)(B) (in addition "may" should also be changed to will" in 
this section) 
 d. Subsection (e)(3)(C) 
 e. Subsection (e)(4) 
 An additional suggestion was made to substitute "shall" for "should" in several 
places in the guideline. 
 RESPONSE: The commission disagrees. The word "should" denotes an expectation 
based upon a standard the commission wishes to occur. Since the intent of the 
statement is to set a standard of expectation, the wording is correct. 
 COMMENT: Several commenters expressed concern that the guideline does not 
address external bone growth stimulators as reasonable and necessary. 
 RESPONSE: The commission agrees. Upon review of the document and the research 
provided by the commenters, a revision was made to the guideline to include 
external bone growth stimulators. The revision reads as follows: "Indications 
for bone growth stimulators (internal and external) (CPT codes 20974 and 20975) 
include: 
 a. Revision spinal fusion 
 b. History of spinal fusion or delayed union at different levels 
 c. Multiple level spinal fusion 
 d. Use of allograft 
 e. Spondylolisthesis greater than grade two 
 f. Nonassociated high risk problems such as metabolic bone disease, smoking, 
diabetes, and obesity." 
 COMMENT: Concern was expressed that it is unclear which "progressive 
neurological conditions" would result from a work-related injury. In order to 
avoid the improper classification of progressive neurological conditions as 
work-related, a suggestion was made to provide examples of such conditions. 
 RESPONSE: The commission disagrees. The phrase "progressive neurologic deficit" 
is directly obtained from the spinal surgery rule which states that a medical 
emergency may include a "severe or rapidly progressive neurological deficit." 
The phrase "progressive neurological condition" refers to the neurological 
symptoms displayed by the injured worker as a result of the spinal injury. The 
need for examples of these two phrases is unnecessary within the context of the 
rule. 
 COMMENT: Concern was expressed regarding the statement "all tertiary, 
inter/multi-disciplinary programs are subject to pre-authorization." The 
commenter wanted clarification regarding what specific programs would require 
preauthorization under this guideline. Commenter also noted that the reference 
to inter/multidisciplinary programs is different from the reference in proposed 
preauthorization rule which refers to the programs as multidisciplinary programs 
and requires preauthorization only after four weeks of therapy. 
 RESPONSE: The commission agrees. References to the specific contents of the 
preauthorization rule have been deleted from the Guideline. A sentence has been 
inserted in the guideline which states: "Preauthorization of any treatments or 
services will be as required in the commission's preauthorization rule." 
 COMMENT: A suggestion was made to re-write subsection (e)(2)(J) as follows: 
This guideline does not preclude the need for compliance with other rules with 
the exception of sec.134.600 of this title (relating to Procedure for Requesting 
Pre-Authorization of Specific Treatments and Services), or its successor. This 
guideline does preclude compliance with sec.134.600 or its successor when the 
guideline calls for specific treatment and services. The only time that 
sec.134.600 or its successor should come into play is when the proposed 
treatment or service falls outside those parameters as set forth in the spinal 
treatment guideline." 
 RESPONSE: The commission disagrees that the guideline should supersede the 
preauthorization rule. References to the specific contents of the 
preauthorization rule have been deleted from the Guideline. A sentence has been 
inserted in the guideline which states: "Preauthorization of any treatments or 
services will be as required in the commission's preauthorization rule." 
 The following comments were received regarding diagnostic procedures. 
 COMMENT: Concern was expressed that the time frames outlined in the section on 
diagnostic procedures have been altered from those agreed upon in Draft 7 of the 
Spine Treatment Guideline. 
 RESPONSE: The commission disagrees. The addition of the zero -six week time 
period for the diagnostic procedures was a clarification of the ground rules 
concerning CT scans and MRIs. The recommendations regarding the early use of CT 
scans and MRIs reflect the research presented to the commission by the workgroup 
and the MAC. 
 COMMENT: A suggestion was made that the terms "static x-ray", "motion study", 
and "postural study" be listed under plain x-ray in the diagnostic interventions 
section. 
 RESPONSE: The commission disagrees. The list of diagnostic procedures is 
directly from the North American Spine Society (NASS) and was recommended by 
both the work group and the MAC. 
 COMMENT: A suggestion was made to add videofluoroscopy and computerized 
isometric/isokinetic testing to the diagnostic interventions section. 
 RESPONSE: The commission disagrees. The list of diagnostic procedures was 
derived from NASS and was recommended by both the work group and the MAC. 
 COMMENT: A suggestion was made that SEMGs and ultrasound also be added to the 
diagnostic interventions section. 
 RESPONSE: The commission disagrees. The list of diagnostic procedures was 
derived from NASS and was recommended by both the work group and the MAC. 
 COMMENT: A suggestion was made that CT scans, MRIs, diagnostic selective nerve 
root injection, and diagnostic facet injection, be added to the time period 0 to 
6 weeks (subsection (h)(3)(A)). 
 RESPONSE: The commission disagrees. The recommendation regarding the early use 
of CT scans and MRIs reflect the research presented to the commission by the 
workgroup and the MAC. The use of early facet injection is discouraged in the 
federal clinical guidelines on the care of low back pain. 
 COMMENT: A suggestion was made to substitute "diagnostic interventions" for 
"treatment" in subsection (h)(3)(A) and (B). 
 RESPONSE: The commission disagrees with the need for this revision. The phrases 
referred to by the commenter are not in the section cited. 
 COMMENT: A suggestion was made to re-write subsection (f)(3)(D) to address the 
need for preauthorization of mental health evaluations after the first three 
hours. 
 RESPONSE: The commission disagrees. References regarding preauthorization have 
been deleted from this guideline. Mental health evaluations are addressed in the 
Mental Health Treatment Guideline (MHTG). 
 COMMENT: A suggestion was made that the last sentence of subsection (f)(3) (D) 
which states, "a mental health evaluation may be performed at any time in the 
injured worker's recovery if it is deemed necessary to his/her recover" be 
struck completely, or the language be replaced with language from the Mental 
Health Treatment Guideline which is more consistent with the intent of the Act 
and good clinical practice. It was expressed that this language defines medical 
necessity more narrowly than the Mental Health Treatment Guideline. 
 RESPONSE: The commission agrees. This sentence has been struck from the 
guideline. 
 COMMENT: A suggestion was made to eliminate plain x-rays in the first six 
weeks, except for those cases where there are documented symptoms of a tumor or 
an infection. 
 RESPONSE: The commission disagrees. The list of diagnostic procedures was 
derived from NASS and was recommended by both the work group and the MAC. 
 COMMENT: Information was provided regarding the appropriate use of 
electrodiagnostic material, specifically surface EMGs, needle EMGs, and nerve 
conduction studies. The comment is more informative rather than a true comment 
on the Spine Treatment Guideline. 
 The following comments were received regarding levels of nonoperative care. 
 COMMENT: Concern was expressed regarding the duration for primary care of zero 
to eight weeks. It was felt that this duration does not meet minimal standards 
for helping the more severely injured workers safely back to work. A 
recommendation was made by a commenter that a more appropriate time frame for 
primary care was zero to 12 weeks. 
 RESPONSE: The commission disagrees. Although there may be some instances where 
the need for primary care extends beyond the eight week period in the guideline, 
a research of the literature has shown that approximately 75 percent of all 
injured workers sustaining an occupational back injury return to work within 
four weeks of the date of injury. An additional nine percent of those injured 
workers return to work within eight weeks of the date of injury. In addition, 
upon review of a videotaped presentation of the guideline by Tom Mayer, M.D., 
(chairman of the original work group) to the Medical Advisory Committee (MAC) in 
September, 1993, the duration in patient contact hours for the primary level of 
care was set at 50 hours of treatment. This amount of time, when distributed 
among the services normally provided during the primary level of care, including 
office visits, physical medicine, and diagnostic studies, totals to 
approximately eight weeks of care. 
 COMMENT: Concern was expressed regarding the proposed duration for secondary 
care of zero to four weeks. The reasons for this expressed concern are as 
follows: 
 a. It is felt that this duration does not meet minimal standards for helping 
the more severely injured workers safely back to work. 
 b. It was felt that this duration is below minimum community standards. 
 c. It was felt that a maximum of four weeks for secondary level of care is an 
inadequate period of time for most patients who require reconditioning, 
strengthening and return to work programs. 
 d. Failure to return to work or achieve resolution of symptoms within the four 
week period may encourage unnecessary testing and/or surgery. 
 Recommendations were made by commenters regarding more appropriate time frames 
for secondary care: 
 a. A duration of four to 12 weeks for secondary care. 
 b. A duration of zero to six weeks for secondary care. 
 RESPONSE: The commission agrees. Upon review of the literature, the commission 
determined that four weeks was not a reasonable period of time for the secondary 
level of care. Additional time is needed to treat the injured worker who is 
deconditioned and who may require services ranging from physical medicine to 
mental health evaluation and treatment. In addition, upon review of a videotaped 
presentation of the guideline by Tom Mayer, M.D., (chairman of the original work 
group), to the MAC in September, 1993, the duration in patient contact hours for 
the secondary level of care was set at 150 hours of treatment. This amount of 
time, when distributed among the services normally provided during the secondary 
level of care, including office visits, physical medicine, return to work 
programs lasting four-eight hours daily, and diagnostic studies, amounts to 
approximately eight weeks of care. Therefore, this level of care has been 
extended to eight weeks in the guideline. 
 COMMENT: Concern was expressed regarding the duration for tertiary care of zero 
to four weeks. The reasons for this expressed concern are as follows: 
 a. It was felt that this duration does not meet minimal standards for helping 
the more severely injured workers safely back to work. 
 b. It was felt that this duration is below minimum community standards. 
 c. It was felt that patients requiring tertiary care cannot participate in 
active therapy or return to work programs until they have completed a tertiary 
program. These patients require additional supervision and additional treatment 
beyond that provided in a secondary program. 
 d. The guideline stated several times that tertiary treatment is the last 
remaining option before MMI. Allowing only four weeks of tertiary care will 
prevent optimal outcomes which will result in decreased return to work options, 
increased risk of re-injury and added medical costs. 
 e. It was felt that an additional two weeks would make the duration of 
treatment consistent with that for a multidisciplinary work conditioning 
program. 
 f. The guideline durations for all levels of care would indicate that a patient 
entering the system at the primary level of care would complete all levels of 
care within four months. This would force the injured worker into the system 
early. Research on return to work fully supports treatment and return to work in 
six months. Injured workers who remain off work for greater than six months are 
less likely to return to work. 
 Recommendations were made by commenters regarding more appropriate time frames 
for tertiary care: 
 a. A duration of six to 16 weeks. 
 b. A duration of zero to 12 weeks. 
 c. A duration of zero to six weeks. 
 RESPONSE: The commission agrees. Upon review of the literature, the commission 
determined that four weeks was not a reasonable period of time for the tertiary 
level of care. Additional time is needed to treat the injured worker who is 
deconditioned and who may require intensive services ranging from physical 
medicine to mental health evaluation and treatment. In addition, upon review of 
a videotaped presentation of the guideline by Tom Mayer, M.D., (chairman of the 
original work group), to the MAC in September, 1993, the duration in patient 
contact hours for the tertiary level of care was set at 250 hours of treatment. 
Since most tertiary level of care programs are intensive, requiring eight to ten 
hours per day, five days per week, the number of weeks provided, using the 
recommended patient contact hours, would amount to five to six weeks. Therefore, 
this level of care has been extended to six weeks in the guideline. In addition, 
after discussion with medical experts, the guideline recommends two weeks of 
less intensive secondary level of care after the tertiary level if documentation 
warrants the need. This allows for the injured worker to continue the 
reconditioning without the need for the intensive tertiary program. The number 
of weeks of total care coincides with the recommendations of the Colorado 
Treatment Guidelines. 
 COMMENT: General support was given for the duration of time being a total of 16 
weeks or four months. The combined work group and MAC rewrote the guideline to 
reflect the following durations: Primary-less than eight weeks; Secondary-less 
than 12 weeks; and Tertiary-less than 16 weeks, with a cumulative total of 16 
weeks. This is ample time to provide quality care for a back injury due to the 
research showing that it is almost impossible to get a worker with a back injury 
to work after six months from injury onset. Additional time for more severe 
cases can be preauthorized. 
 RESPONSE: The commission disagrees. Upon further review of the literature, 
including evidence provided by the commenters and a re-review of the videotapes 
addressing the guideline, the durations have been revised to allow eight weeks 
for the primary level of care, eight weeks for the secondary level of care, and 
six weeks for the tertiary level of care, totalling 22 weeks or approximately 5 
1/2 months. In addition, to the normative durations listed in each section, an 
additional two weeks is added to the secondary level for less intensive care if 
necessary at the termination of the tertiary level of care. Documentation of 
necessity must be included with the request for the additional two weeks. 
 COMMENT: Support was expressed regarding the times allotted for the secondary 
and tertiary levels of care. 
 RESPONSE: The commission disagrees. Upon further review of the literature, 
including evidence provided by the commenters and a re-review of the videotapes 
addressing the guideline, the durations have been revised to allow eight weeks 
for the primary level of care, eight weeks for the secondary level of care, and 
six weeks for the tertiary level of care, totalling 22 weeks or approximately 5 
1/2 months. In addition, to the normative durations listed in each section, an 
additional two weeks is added to the secondary level for less intensive care if 
necessary at the termination of the tertiary level of care. Documentation of 
necessity must be included with the request for the additional two weeks. 
 COMMENT: Concern was expressed that the proposed Spine Treatment Guideline is 
recommending a reduction in reimbursement for tertiary care from its current 
level to the recommended reimbursement for work hardening ($35 per hour). A 
suggestion was made that reimbursement for tertiary care be established at $55 
per hour. 
 RESPONSE: The commission disagrees. The guideline does not address the issue of 
reimbursement. The purpose of a treatment guideline is to address the diagnosis, 
treatment, and rehabilitation of the injured worker. Reimbursement of the 
services described in the treatment guideline are discussed in detail in the 
Medical Fee Guideline. 
 COMMENT: General concern was expressed regarding the content of the tertiary 
care program as proposed in the Spine Treatment Guideline. A general revision of 
this section was strongly suggested. 
 RESPONSE: The commission disagrees. The guideline contains the definition of 
tertiary care as agreed upon by the members of the combined work group which 
contained health care providers from all professions and as delineated in Draft 
8 from which the guideline was derived. 
 COMMENT: Concern was expressed regarding the "deletion of major portions of 
text necessary to explain the principles of the STG to people likely to use it, 
including critical parts of Sections 6 and 7 (Phases of Nonoperative Care: 
Referral Criteria and Assessment/Evaluation)". Concern was expressed regarding 
the "removal of specific referral criteria for each of the three intervention 
phases", and that as a result, there appears to be no delineation between 
secondary and tertiary care in the Spine Treatment Guideline. The commenter also 
noted that the criteria to distinguish between secondary and tertiary care was 
"still missing the reference to the Mental Health Treatment Guideline Section 
VII." One of the commenters noted that the distinctions between phases of 
treatment and levels of care were not apparent in the guideline and recommended 
restoration of this section to the guideline. 
 RESPONSE: The commission disagrees that any sections of the guideline were 
completely deleted. Upon review of the guideline and comparison with Draft 8, 
the information contained in Draft 8 of this document was contained in some form 
in the guideline. Much of the information referenced by the commenter was 
duplicated in the tables outlining the levels of care. The commission considered 
this duplication to be unnecessary. The revised descriptions of secondary and 
tertiary care, as outlined in subsection (g), including the tables, clearly 
differentiate the criteria for entry into each level of care and clearly outline 
the programs acceptable for both of the levels of care. This section does not 
outline phases of treatment but instead deals with the different levels of 
intensity of treatment required by the injured worker based on his/her 
presenting signs and symptoms. The references to the Mental Health Treatment 
Guideline are present in Tables II and III of subsection (g). The commission 
deleted the specific subsection for the MHTG since they were incorrect. 
 COMMENT: A suggestion was made to re-write subsection (g)(4) to include the 
phrase "This level of care generally occurs several months after the injury has 
occurred." 
 RESPONSE: The commission disagrees with the need to rewrite this section. The 
sentence proposed by the commenter is already present in the paragraph cited. 
 COMMENT: A suggestion was made to state specifically in the tertiary level of 
care that the multidisciplinary program is the preferred approach. 
 RESPONSE: The commission disagrees with the need to further state that 
multidisciplinary is the preferred approach. In Table III, Tertiary Level of 
Care, the description already states that "this is interdisciplinary, 
individualized and intensive treatment designed for injured workers already 
demonstrating physical and psychological changes consistent with chronic 
disability". 
 COMMENT: Concern was expressed with subsection (g)(2)(C)(vii) which recommends 
observing the claimant's tolerance for sitting or standing as a variable for 
evaluating functional capacity. This observation is extremely subjective, and 
its value with regard to this test is unclear. In addition, the level of each 
claimant's cooperation can skew the results of other recommended indicators. 
 RESPONSE: The commission disagrees. It is important for the evaluator to 
observe those actions which are quantitatively measurable and those which are 
qualitative or subjective in nature to obtain a complete picture of the injured 
worker's ability to function. Both types of observations can be skewed by the 
injured worker's ability or desire to cooperate. However, the significance lies 
in the contradictions which may or may not be present when comparing both sets 
of data. For instance, range of motion can be measured with an inclinometer or 
goniometer and is considered to be an objective measurement of the injured 
worker's ability to move freely. However, it may differ significantly from an 
observation of the injured worker freely bending over in a chair to tie his/her 
shoes. The reliability of the objective measurement can be readily determined by 
the injured worker's movements when he/she feels that he/she is unobserved. 
 COMMENT: A commenter agreed with the statement in subsection (g)(3)(B)(iii) 
which states, "invalid or scientifically unjustifiable techniques shall not be 
reimbursed." , but suggested that it would be helpful if examples were given. 
 RESPONSE: The commission disagrees. Examples of techniques that are now 
considered to be experimental in nature may not be appropriate even in one year. 
It is the responsibility of both the health care provider and the insurance 
carrier to maintain current knowledge of widely accepted treatment techniques 
and to be aware of those treatments which are considered to be experimental in 
the eyes of the treatment community. 
 The following comments were received regarding the tables. 
 COMMENT: Support was expressed regarding the primary level of care table which 
indicated only a limited period of bed rest and initiation of exercise starting 
two weeks post injury. 
 RESPONSE: The commission agrees. 
 COMMENT: A suggestion was made to revise Table I. Primary Level of Care to 
indicate that primary care involves all levels of severity. 
 RESPONSE: The commission agrees that the primary level of care should be used 
when medically appropriate for any injury no matter the severity of the injury. 
The health care provider should review the clinical indicators in the guideline 
to determine the appropriate level of care. The guideline has been revised to 
read in Table I. Primary Level of Care, Description, "This level of care may be 
used for any level of severity of injury according to the clinical indicators." 
 COMMENT: A suggestion was made to delete biofeedback and facet injections from 
Table I, Primary Level of Care to resolve the conflict with subsection (f) 
(3)(C). 
 RESPONSE: The commission disagrees. Subsection (f)(3)(C) relates to diagnostic 
procedures (i.e., diagnostic facet injections) versus Table I. Primary Level of 
Care, which relates to the use of specific treatments (therapeutic facet 
injections). To further clarify that Table I is referring to therapeutic facet 
injections, the description has been changed to read "Therapeutic Facet 
Injection" in the guideline. Because biofeedback is not listed in (f)(3)(C), 
there is no conflict to resolve between the two sections. 
 COMMENT: Concern was expressed that Functional Capacity Evaluations are 
recommended at all three levels of care, implying that a total of six Functional 
Capacity Evaluations may be allowed per injured worker. A suggestion was made to 
delete the reference to this evaluation in the secondary and tertiary levels of 
care since this type of testing is considered to be included in those programs 
as outlined in Commission on Accreditation of Rehabilitation Facilities (CARF). 
The commenter expressed concern at the validity of this type of testing 
performed in the primary and secondary levels of care. 
 RESPONSE: The commission disagrees. Although Functional Capacity Evaluations 
are listed in all three levels of care as a type of test that would be 
considered appropriate, the use of such a test is dependent on the clinical 
condition and needs of the injured worker. In some instances, the Functional 
Capacity Evaluation may be performed solely to determine the injured worker's 
ability to return to work; this may need to be done in any level of care and 
should not be limited only to the tertiary level of care. 
 COMMENT: A suggestion was made to add the following goal to Table II, Secondary 
Level of Care: "This is best accomplished by return-to-work in some modified 
duty." 
 RESPONSE: The commission disagrees. The need to return to work is addressed in 
the section titled "Goal of Secondary Intervention" which states "Arresting and 
preventing progressive physical deconditioning and appearance of psychosocial 
barriers to work return with a reactivation process, generally associated with 
the post-acute and early postoperative periods." 
 COMMENT: A suggestion was made to add modified work programs and delete 
Manipulations Under Anesthesia from Table II, Secondary Level of Care. The 
commenter also suggested deleting Manipulations Under Anesthesia from Table III. 
Tertiary Level of Care. Another commenter expressed concern with the listing of 
both manipulation and manipulation under anesthesia on the table for tertiary 
level of care. This commenter expressed concerns that manipulations under 
anesthesia were more risky and not demonstrably more effective than routine 
manipulations. 
 RESPONSE: The commission disagrees. Interdisciplinary programs are mentioned 
under the section titled "Types of Intervention", and the possible need for a 
transitional period of modified duty is mentioned in the section titled "Return 
to Work Issues" in the table listed by the commenters. Manipulation under 
anesthesia as a treatment intervention was in the initial draft that was 
submitted to the MAC by the physician subcommittee. It was a consensus decision 
of the MAC on March 11, 1994 that manipulation under anesthesia was appropriate 
as a treatment option for both secondary and tertiary levels of care based on 
the clinical expertise of the health care providers on the MAC. 
 COMMENT: A suggestion was made to revise the goals in Table III, Tertiary Level 
of Care to read "Return to full duty may not always be possible and does allow 
for referral by statute." 
 RESPONSE: The commission disagrees. This table, in the section titled "Return 
to Work Issues", addresses that issue. Specifically, the table states: "The 
severe level of severity allows return to work within four-six months with or 
without a transitional period of modified duty (not to exceed four months). 
Treatment response to tertiary interventions will ultimately allow a return to 
full duty (or permanently modified) work. There will likely be some limitations 
restricting medium-to-heavy jobs accompanied by some permanent impairment, but 
with the injured worker always able to reach MMI following surgical and/or 
primary, secondary and/or tertiary nonoperative interventions. Other outcomes 
include vocational rehabilitation, or voluntary decision to leave the work 
force." 
 COMMENT: Concern was expressed that the "Surgical Intervention Table" implies 
that symptoms suggestive of a surgically treatable lesion should be a 
prerequisite to surgery. It was recommended that the presentation of symptoms 
alone should not be enough to warrant surgery; it was recommended that there 
should be objective findings of a spinal lesion anatomically compatible with the 
patient's complaint prior to proceeding with surgery. 
 RESPONSE: The commission disagrees that a change is needed. Table IV, Surgical 
Intervention, Clinical or Behavioral Indicators, number (3) states that," 
Surgery would not occur except on objective findings of structural defects." 
This sentence answers to commentator's concern that the presentation of symptoms 
would warrant the necessity for surgery. 
 COMMENT: Concern was expressed by the commenter that certain types of 
intervention listed in the primary level of care were inappropriate at this 
level of care and subject to overuse. The commenter specifically mentioned back 
schools, neuromuscular re-education, epidural steroid injections, and trigger 
point injections. 
 RESPONSE: The commission disagrees. It is important to initiate patient 
education and pain control early in the treatment process to ensure the 
cooperation and rapid recovery of the injured worker. 
 COMMENT: A suggestion was made to substitute the word "Occupational" for the 
word "Behavioral" in Tables I-IV in the Levels of Care. In addition, the 
suggestion was made to add acupuncture to the list of interventions in Table I 
and II. 
 RESPONSE: The commission disagrees. The purpose of that portion of the tables 
for level of care titled "Clinical or Behavioral Indicators" was to provide a 
list of signs and symptoms which should be present at each level of care. This 
list of signs and symptoms is not tied to the injured worker's work behavior. 
Acupuncture is not separately listed but may be used if beneficial for 
pain/symptom control. 
 COMMENT: Concern was expressed that the injured worker must apparently "fail" 
all other levels of care prior to receiving a referral for a pain care 
specialist. As currently written, it would prevent timely selection of patients 
who are not likely to respond to primary work hardening alone. Earlier 
evaluation by appropriately trained specialists would allow this small group of 
nonresponders to have appropriate and early intervention in order to optimize 
conservative treatment modalities as well as allow timely application of 
interventional techniques likely to have a greater success early than late in 
the course of these diseases. 
 RESPONSE: The commission disagrees that the injured worker must "fail" all 
other levels of care prior to receiving a referral for a pain care specialist. 
In subsection (e)(2)(F), titled Ground Rules, the guideline states that: "The 
injured worker may move between levels of care or utilize interventions in more 
than one level of care simultaneously, depending on clinical indicators." 
 COMMENT: Concern was expressed that further clarification was needed in the 
guideline to clearly distinguish between return to work programs and pain 
management programs. It was suggested that pain management programs be listed 
separately in the intervention section of the Levels of Care tables. 
 RESPONSE: The commission agrees that clarification is needed and added 
definitions in the glossary for work conditioning, outpatient medical 
rehabilitation, and chronic pain management. In the table for the tertiary level 
of care of the guideline, "Chronic Pain Management" is listed separately under 
"Interdisciplinary Programs". 
 COMMENT: Concern was expressed with the perceived assumption that failed 
surgery automatically triggers mental health evaluation and treatment and that 
this is the only route for subsequent therapy. Mental health approaches should 
be combined with physical interventional pain without additional surgery in most 
instances. The cost savings are truly remarkable if interventional pain 
modalities are incorporated in the model of the Spine Treatment Guideline. 
 RESPONSE: The commission disagrees that this assumption is present in the 
guideline. The commission acknowledges the commenter's concerns that chronic or 
intractable pain is not separately addressed in the guideline. However, pain 
treatment is mentioned in all three tables addressing the levels of care. In the 
primary level of care, "pain/symptom control", "behavioral pain 
management/relaxation training" and "biofeedback" are mentioned. In the 
secondary level of care, "behavioral pain management/relaxation training", and 
"biofeedback" are mentioned. In the tertiary level of care, "behavioral pain 
management/relaxation training" and "chronic pain management" are mentioned. A 
ground rule has been added to the guideline which states: "Although preoperative 
educational programs and chronic pain management programs are not specifically 
outlined, the intent of this guideline is not to eliminate or prohibit their 
use. When deemed medically necessary, these programs may be considered 
appropriate types of intervention to be utilized." In addition, the commission 
plans the formation of a work group at a later date to address criteria for pain 
management programs. 
 COMMENT: A suggestion was made that the first sentence in the "Return to Work 
Issues" column of Table II, Level of Care should read, "The moderate level of 
severity allows full return to work in less than six months with or without a 
transitional period of modified duty." 
 RESPONSE: The commission agrees with the need to clarify this section. This 
section has been revised to read: "The moderate level of severity is appropriate 
for a patient medically expected to return to work in less than six months, 
either with a full release or at a minimally modified duty expected to last 
three months or less." 
 COMMENT: Concern was expressed that MMI would be utilized if a patient refuses 
to participate in what is perceived to be an ineffective means of treatment. The 
commenter appears to be concerned that the guideline does not specifically 
outline the contents of any treatment program other than physical medicine or 
mental health evaluation and treatment and expresses concern that the contents 
of the chronic pain management program mentioned in the treatment tables is not 
specifically delineated. 
 RESPONSE: The commission agrees. References combining patient noncompliance 
with a resultant determination of Maximum Medical Improvement were deleted from 
the treatment guideline. This issue will be addressed in proposed amendments to 
other commission rules. 
 The following comments were received regarding pain management. 
 COMMENT: Concern was expressed that the guideline did not appear to address the 
problem of chronic or intractable pain in the back injury patient except for 
referrals to mental health treatment programs or surgical intervention. Concern 
was expressed that the descriptions for the levels of care appear to 
"arbitrarily exclude patients from treatment". 
 RESPONSE: The commission disagrees. Pain treatment is mentioned in all three 
tables addressing the levels of care. In the primary level of care, 
"pain/symptom control", "behavioral pain management/relaxation training" and 
"biofeedback" are mentioned. In the secondary level of care, "behavioral pain 
management/relaxation training", and "biofeedback" are mentioned. In the 
tertiary level of care, "behavioral pain management/relaxation training" and 
"chronic pain management" are mentioned. The purpose of the treatment guideline 
is to clarify those services that are to be considered reasonable and necessary 
for both operative and nonoperative treatment of a worker with a spinal injury. 
The guideline clearly states throughout the document that a small percentage of 
injured workers will fall outside the guidelines recommended and will therefore 
require either more or less treatment than is outlined in the document. In 
addition, the guideline clearly states that the recommendations contained in the 
guideline are not to be used as the sole reason for denial of treatment or 
services. The commission recommends the formation of a work group at a later 
date to address criteria for pain management programs. 
 COMMENT: Concern was expressed by commenters that interventional pain treatment 
techniques were not included in the guideline. Interventional pain management 
usually is not surgical and is done to achieve one or more of the following 
objectives: 
 a. lesion specific delivery of medications to damaged nerve roots; 
 b. release of entrapped nerve roots from scars; 
 c. complete therapeutic neurodestructive procedures (e.g., injection of 
neurolytic substances, cryoneurolysis, and radiofrequency thermocoagulation); 
 d. establish diagnosis using only diagnostic procedures (e.g., nerve sleeve 
injections and facet injections) 
 A suggestion was also made that consideration be given to including 
interventional pain procedures such as spinal cord or peripheral nerve 
stimulation and/or implantable infusion pumps for spinal opiod therapy in the 
guideline. Suggestions were made that the CPT codes for these procedures (e.g., 
64555 (PNS), 63650 (SCS), 63655 (SCS), 63685 (SCS), 63750 (Impl.Inf.), 63780 
(Impl.Inf.), 64575 (PNS), and 64590 (PNS)) be added to the Surgical Treatment 
Code Legend and to the Surgical Algorithms. 
 RESPONSE: The commission agrees. The guideline in the ground rules has been 
rewritten as follows: "Interventional pain procedures may include spinal cord or 
peripheral nerve stimulation and/or implantable infusion pumps. CPT codes for 
these procedures include 64555, 63650, 63655, 63685, 63750, 63780, 64575, and 
64590. These procedures are performed to achieve one or more of the following 
objectives: 
 a. lesion specific delivery of medications to damaged nerve roots; 
 b. release of entrapped nerve roots from scars; 
 c. complete therapeutic neurodestructive procedures (e.g., injection of 
neurolytic substances, cryoneurolysis, and radiofrequency thermocoagulation); 
 d. establish diagnosis using only diagnostic procedures (e.g., nerve sleeve 
injections and facet injections)." 
 COMMENT: A suggestion was made that a chronic pain treatment continuum be 
established within the guideline with an emphasis on a multi-disciplinary 
approach to include limited surgical intervention such as those treatments 
mentioned in the previous paragraph as well as neurobehavioral modalities such 
as cognitive and behavioral techniques, family therapy and education, operant 
conditioning, support group therapy and general patient education. 
 RESPONSE: The commission disagrees. The commission acknowledges that, although 
various types of pain management programs are mentioned in all three levels of 
care tables, specific delineation of the components of a chronic pain management 
program are not specified in this guideline. The commission recommends the 
formation of a work group at a later date to address criteria for pain 
management programs. 
 RESPONSE: Concern was expressed that the guideline did not endorse payment of 
such treatment as dorsal column stimulation and implanted intrathecal opiod 
delivery devices. 
 COMMENT: The commission agrees. The treatment guideline has been rewritten to 
include interventional pain management. Ground Rule (N) allows for 
interventional pain procedures. 
 The following comments were received regarding assessments and evaluations. 
 COMMENT: One commenter suggested that, in the section on 
Assessments/Evaluations, orthopedic and neurologic tests should be added to the 
description of physical examination and neurological evaluation. The commenter 
also expressed concern that the methods suggested for testing and evaluating 
strength and endurance may not be accurate. 
 RESPONSE: The commission disagrees. The physical examination/neurological 
evaluation referred to by the commenter is, according to the description in the 
previous paragraph, a "qualitative estimate of the injured worker's physical or 
functional ability." The quantitative measurements of the injured worker's 
physical or functional ability are covered in subsequent paragraphs describing a 
physical capacity evaluation and a functional capacity evaluation. 
 COMMENT: Concern was expressed that proper patient selection for specific 
modalities (work hardening, etc.) should only be done by specialists trained and 
practicing full time in the field of pain medicine. Concern was also expressed 
that treatment for tertiary care be provided by those specialists trained to 
provide the type of care described in the table. The guidelines currently allow 
any and all practitioners to perform interventional techniques for which they 
have limited training and exposure. Proper selection of patients is the key to 
limiting expense wasted on candidates who have almost no chance of responding to 
an otherwise appropriate and effective treatment. Proper referral guidelines for 
treating physicians would lower expense and improve outcomes for these patients. 
 RESPONSE: The commission disagrees. It is the role of the treating doctor to 
appropriately refer the injured worker to the programs necessary for treatment 
of his/her injury. The Medical Fee Guideline states in the Medicine Ground 
Rules, (I)(A), that those services provided must be performed by a licensed 
health care practitioner performing within the scope of practice for which the 
practitioner is licensed. The newly adopted Mental Health Treatment Guideline 
provides criteria for referral to chronic pain management programs in subsection 
(i)(3). 
 COMMENT: Concern was expressed that stronger language was needed in subsection 
(h)(1)(C) regarding possible risk factors, including pre- and postoperative risk 
factors, and the need to treat these factors as well as the spine injury. The 
commenter also suggested that payment be allowed for treatment of risk factors. 
 RESPONSE: The commission disagrees that stronger language is needed in this 
section. As is outlined in subsection (b)(2)(A), it is the responsibility of the 
treating doctor to identify both the extent and severity of the injury, and to 
identify and separately treat those symptoms not related to the compensable 
injury. The Texas Labor Code, sec.408.021(a,) states that "An employee who 
sustains a compensable injury is entitled to all health care reasonably required 
by the nature of the injury as and when needed. The employee is specifically 
entitled to health care that: 
 (i) cures or relieves the effects naturally resulting from the compensable 
injury; 
 (ii) promotes recovery; and 
 (iii) enhances the ability of the employee to return to or retain employment." 
 It is not the purpose of this guideline to expand or limit coverage of the 
injured worker. Payment for services rendered which are not causally related to 
the compensable injury, as defined in the above quotation, is not something 
which can be recommended by this guideline. 
 The following comments were received regarding the treatment algorithms. 
 COMMENT: Concern was expressed that although education is encouraged, there is 
no separate mention of specific programs for education such as back schools, PEP 
programs, or education by the surgeon. A suggestion was made to include a 
preoperative educational plan in the Perioperative Algorithm. Pertinent 
statistical findings were briefly summarized to provide support for the 
inclusion of "preoperative education plan" into the guideline. 
 RESPONSE: The commission disagrees that there is a need to include the 
suggested programs in the surgical algorithms. Although patient education is not 
specifically mentioned in the surgical algorithms, it is repeatedly mentioned in 
the other tables outlining levels of care. In addition, communication of the 
treatment plan and the expected outcome to the injured worker is part of the 
function of all health care providers as outlined in subsection (c)(5)(A). The 
commission recommends the formation of a work group at a later date to address 
the criteria for a preoperative education program. In addition, a ground rule 
has been added to the guideline which states: "Although preoperative educational 
programs and chronic pain management programs are not specifically outlined, the 
intent of this guideline is not to eliminate or prohibit their use. When deemed 
medically necessary, these programs may be considered appropriate types of 
intervention to be utilized." 
 COMMENT: A question was raised regarding the meaning of "MMI (60-80%)" as 
listed in Chart 1 of the Surgical Algorithms. 
 RESPONSE: This box, if followed back to the beginning of the chart, indicates 
that approximately 60% to 80% of the injured workers depending on the study 
cited, respond to conservative, or nonoperative, treatment and return to work 
within the first eight weeks of care. 
 The following comments were received regarding the glossary. 
 COMMENT: A suggestion was made to expand the glossary with terms/definitions 
for better understanding. The terms suggested for the glossary were as follows: 
 a. focus review 
 b. single point of contact 
 c. inter/multidisciplinary programs 
 d. change "intervertebral disc disorder" to "intervertebral disc syndrome" 
 e. separate the definitions/ratings for "sprain" and "strain" 
 f. time limited 
 g. acceptable standards of care 
 h. algorithm 
 i. assessment/evaluation 
 j. clinical plateau 
 k. consulting doctor 
 l. decompensating 
 m. denial parameters 
 n. diagnosis 
 o. diagnostic module 
 p. diagnostic tests 
 q. examination 
 r. first doctor 
 s. frequency of intervention 
 t. functional capacity 
 u. medical necessity 
 v. module 
 w. objective findings 
 x. physician 
 y. primary/secondary/tertiary care 
 z. proper clinical documentation 
 aa. reason for denial 
 bb. referral 
 cc. secondary treatment 
 dd. static 
 ee. subjective complaints 
 ff. treatment module 
 gg. treatment plan 
 RESPONSE: The commission agrees with recommendations by commenters to add the 
following definitions: 
 a. Interdisciplinary programs: programs in which the delivery of services is 
provided by more than one type of health care service (e.g., occupational 
therapy, physical therapy, counseling services, medical services). Examples of 
this type of program include work hardening, outpatient medical rehabilitation, 
and chronic pain management. 
 b. Clinical plateau: a period of time of relative stability in which the 
injured worker displays minimal or minor changes in his/her condition. 
 c. Consulting doctor: a doctor who provides an opinion or advice regarding the 
evaluation and/or management of a specific problem, as requested by the treating 
doctor, the commission, or the insurance carrier. A consulting doctor may only 
initiate diagnostic and/or therapeutic services with approval from the treating 
doctor. 
 d. Referral doctor: a consulting doctor who initiates health care treatments at 
the request of the treating doctor. 
 e. Sprain: an injury to a ligament 
 i. Mild (Grade 1): only a few fibers are torn; ligament is mostly intact and 
the joint is stable; 
 ii. Moderate (Grade 2): more fibers are torn, resulting in some instability 
with abnormal joint motion 
 iii. Severe (Grade 3): ligaments are completely disrupted and instability may 
be severe (synonymous with marked). 
 f. Strain: an injury to a muscle 
 i. Mild (Grade 1): only a few fibers are torn; muscle is mostly intact and 
functional; 
 ii. Moderate (Grade 2): more muscle fibers are torn resulting in muscle pain 
with contraction; 
 iii. Severe (Grade 3): tendons are completely disrupted, extreme pain and loss 
of use of muscle. 
 g. Treatment plan: this is a written document which must contain the following 
components: 
 i. type of intervention/treatment modality 
 ii. frequency of treatment; 
 iii. expected duration of treatment; 
 iv. expected clinical response to treatment; and 
 v. specification of a re-evaluation timeframe. 
 The commission disagrees with the suggested need for definitions for the 
remaining terms. These terms are clearly defined within the context of the 
guideline and need no further clarification. 
 The following general comments were received regarding the Spine Treatment 
Guideline. 
 COMMENT: A suggestion was made to incorporate recommendations adopted by the 
federal government regarding the treatment of chronic pain. 
 RESPONSE: The commission disagrees with the need to incorporate recommendations 
adopted by the federal government regarding the treatment of chronic pain. 
Chronic pain programs are not specifically addressed in this guideline. However, 
consideration will be given to further addressing the needs of injured workers 
experiencing chronic pain in a separate guideline to be developed at a later 
date, and the information contained within the federal guidelines will be 
examined for use in the future guideline. A ground rule has been added to the 
guideline which states: "Although preoperative educational programs and chronic 
pain management programs are not specifically outlined, the intent of this 
guideline is not to eliminate or prohibit their use. When deemed medically 
necessary, these programs may be considered appropriate types of intervention to 
be utilized." 
 COMMENT: Concern was expressed that the listing of cell saver as part of the 
routine anesthetic clearly has to be an error, as the cell saver demands 
significant manpower, and its use should be reimbursed at a higher level than 
establishment of central lines, which carries a separate reimbursement. 
 RESPONSE: The commission disagrees. The commenter is referring to the proposed 
ground rules for the anesthesia section of the Medical Fee Guideline. The rule 
to which the commenter is referring is not contained in, nor does it 
specifically refer to, the Spine Treatment Guideline. The concerns raised by the 
commenter will be considered when revising the proposed ground rules for the 
Medical Fee Guideline. 
 COMMENT: Concern was expressed that the acute pain service lists only 
intravenous patient controlled analgesia when in fact some of the injured 
workers demand long term epidural catheter placement and infusions, intrathecal 
catheter placement and infusions, intrapleural catheter placements and 
infusions, and peripheral nerve blocks and infusions, which should be 
appropriately compensated on the basis of American Society of Anesthesiologists 
Relative Value Guides. 
 RESPONSE: The commission disagrees. The services listed by the commenter are 
not present in the treatment guideline but appear to be part of the proposed 
ground rules for revisions to the Medical Fee Guideline. This guideline does not 
address specific modalities for pain control; treatment for chronic pain will be 
addressed in a future guideline. The concerns regarding reimbursement for those 
services will be considered when revising the proposed ground rules for the 
Medical Fee Guideline. 
 COMMENT: Concern was expressed that Texas has a number of academic institutions 
where physicians in training are used. The supervision of these physicians does 
not fall under the nurse anesthesia permissible limit of four; the maximum 
allowable by the training accrediting agencies is two. It is recommended that 
the reimbursement shall remain the same as it is now. Reimbursement for pain 
procedures use the ASA Relative Value Guide. 
 RESPONSE: The commission disagrees. The guideline does not address the issue of 
reimbursement. The purpose of a treatment guideline is to address the diagnosis, 
treatment, and rehabilitation of the injured worker. Reimbursement of the 
services described in the treatment guideline are discussed in detail in the 
Medical Fee Guideline. 
 COMMENT: Concern was expressed by a commenter that requiring preauthorization 
for services listed in the guideline would cause a delay in the provision of 
treatment to the injured worker. 
 RESPONSE: The commission disagrees. References to the specific contents of the 
preauthorization rule have been deleted from the guideline. A sentence has been 
inserted in the guideline which states: "Preauthorization of any treatments or 
services will be as required in the commission's preauthorization rule." 
 COMMENT: Support was expressed regarding the continued requirement for 
preauthorization of certain types of treatment. It was felt that 
preauthorization was necessary to continually monitor the treatment rendered to 
the injured worker to ensure that he/she received appropriate care in a timely 
manner. 
 RESPONSE: The commission agrees. 
 COMMENT: A suggestion was made by commenters to return the Spine Treatment 
Guideline to either the original or the combined work group for further review 
and revision. 
 RESPONSE: The commission disagrees. The guideline contains input from both the 
original and combined work groups in a more concise format. The guideline was 
presented to the MAC (which included the members of the combined work group) 
prior to its publication in the Texas Register . A return of the guideline to 
the original work group would limit input by health care providers solely to MD 
and DO input. A return of the guideline to the combined work group, while it 
would encompass all health care providers, would unnecessarily delay the 
production of this document and would require re-initiation of the guideline 
process. Comments on the guideline were extensive and resulted in revision to 
the rule as proposed. Re-publication would most likely result in duplicate 
comments and would therefore not be productive. 
 COMMENT: A suggestion was made that the preamble be revised to indicate that 
the proposed Spine Treatment Guideline represents minimum community standards of 
usual and customary care, applicable only 80% of the time and should not be used 
to deny treatment for patients falling outside the guideline, and that it is a 
consensus medical document, subject to revision. It was expressed that, although 
the rule stipulates otherwise, the guideline would be used by carriers as the 
sole determinant for continuation of or denial of care. Suggestion was also made 
that the phrase "Medical services consistent with this guideline are presumed 
reasonable and necessary" be included in the ground rules. 
 RESPONSE: The commission disagrees that the recommended language is needed. The 
purpose of the treatment guideline is to clarify those services that are 
considered to be reasonable and necessary for both operative and nonoperative 
treatment of a worker with a spinal injury. The guideline clearly states 
throughout the document that a small percentage of injured workers will fall 
outside the guidelines recommended and will therefore require either more or 
less treatment than is outlined in the document. In addition, the guideline 
clearly states that the recommendations contained in the guideline are not to be 
used as the sole reason for denial of treatment or services. The statement 
recommended is present in the introduction, subsection (b)(1) titled "Purpose". 
 COMMENT: A comment was made that the insurance carriers did not participate in 
the development of this treatment guideline. 
 RESPONSE: The commission disagrees. A primary general public member of the 
Medical Advisory Committee who was employed by a fourth party auditor, was 
involved in the combined work group which assisted in the development of this 
treatment guideline. In addition, comments from insurance carriers were received 
during the public comment process and were taken into consideration at that 
time. 
 COMMENT: General comments were made expressing dissatisfaction with the 
development and revision of the proposed Spine Treatment Guideline. 
 RESPONSE: The commission disagrees. Every effort was made by the commission to 
include the comments and suggestions of both the original and combined work 
groups in the creation of this document. The guideline was presented to the MAC 
(whose members include the combined work group) prior to its publication in the 
Texas Register. 
 COMMENT: Support was expressed regarding the following subsections of the Spine 
Treatment Guideline: (b)(1), (d)(1)(B), (e)(2)(H), (e)(2)(N) and (O), and 
(e)(3)(D) and (g)(2)(A), Introduction, Diagnostic Procedures, Surgical Treatment 
Algorithms, Algorithms. 
 RESPONSE: The commission agrees. 
 COMMENT: Concern was expressed regarding the definition of "doctor", as 
outlined in the Spine Treatment Guideline. 
 RESPONSE: The commission disagrees. The commenter is addressing the definition 
of "doctor" as defined in Texas Labor Code,  sec.401.011. 
 COMMENT: Concern was expressed regarding the definitions of body regions as 
outlined in the Spine Treatment Guideline. Specifically, concern was expressed 
that the ribs and thoracic spine were combined into one area (thorax), the 
lumbar and sacral areas were combined into one area (lumbosacral), and the 
pelvis was deleted. 
 COMMENT: The commission disagrees. The commenter appears to be addressing the 
body areas as defined in the proposed revisions of the Medical Fee Guideline 
ground rules. This document is not yet available for public comment, although 
those comments pertinent to that document will be taken into consideration, 
along with other comments from the general public, when preparing revisions to 
the ground rules. 
 RESPONSE: Concern was expressed regarding the information contained in the 
surgical algorithms as set out in the proposed Spine Treatment Guideline. 
 COMMENT: The commission disagrees. The formation of the surgical algorithms, 
and the information contained within each algorithm, was based on input from the 
members of both the original and combined work groups, each of which recommended 
the use of algorithms as an appropriate method of conveying complex information. 
 RESPONSE: Suggestions were made for the following revisions in terminology: 
 a. where it currently states "multidisciplinary assessment", revise the phrase 
to refer to "multidisciplinary medical assessment". 
 b. where it currently refers to "injured worker", refer instead to "patient". 
 RESPONSE: The commission disagrees. Not all interdisciplinary or 
multidisciplinary programs are medically directed; to require that the 
assessment be medically directed would limit access to certain nonmedically 
directed programs such as work hardening. The use of the phrase "injured worker" 
is consistent with the currently adopted Mental Health Treatment Guideline which 
also uses that phrase. 
 COMMENT: General support of the Spine Treatment Guideline was expressed. 
 COMMENT: General objection to the adoption of the proposed Spine Treatment 
Guideline was expressed. 
 COMMENT: Concern was expressed that the guideline will limit many physicians 
from referring to specialists, such as orthopedic surgeons, neurosurgeons, or 
neurologists, and many tests will not be performed due to the criteria that is 
described. 
 RESPONSE: The commission disagrees. The purpose of the guideline is to identify 
a normal course of treatment for both operative and nonoperative care of the 
worker with a spine injury. This guideline is not to be used as a fixed 
treatment protocol, nor is it to be used as the sole reason for denial of or 
access to care. 
 COMMENT: Concerns were raised and answered regarding the liability issues of 
neuroaugmentation and spinal pumps. The questions and answers include: 
 a. Will the insurance company be liable? This is an accepted and recognized 
procedure by Medicare, Blue Cross/Blue Shield and other insurance carriers and 
there is evidence of its efficacy (50% to 70%) in selected patients who have 
failed all other treatments. 
 b. Will the State be liable for the deaths? ERSA laws technically do not 
protect governmental bodies from law suits. 
 c. Will the treating physician be liable? Considering current judgment and 
practices the physician seems to have the most liability in treating a patient 
where an accepted procedure is not obtainable. This would most closely align at 
this point in time to managed care interfering with the physician's decision for 
treatment. 
 This was a series of questions/comments and did not specifically address the 
contents of the guideline. 
 COMMENT: Concern was expressed that an outcome-based reporting system is not 
mentioned in the guideline. 
 RESPONSE: The commission disagrees that an outcome-based reporting system 
should be specifically mentioned in the guideline. Throughout the guideline 
there are criteria established regarding documentation requirements. Through 
documentation, outcomes can be generated to show progression of recovery. It is 
not the intent at this time to mandate computer generated outcome-based reports 
by all health care providers. This type of reporting should remain within the 
domain of the health care provider. 
 COMMENT: Concern was expressed that the chronological severity index (CSI) was 
deleted. 
 RESPONSE: The commission disagrees that the CSI was present in either Draft 8, 
which was the document presented in the MAC or in the previous proposal of this 
treatment guideline. The chronological severity index referred to by the 
commenter was edited out during the revision process by the subgroup of the MAC. 
 COMMENT: Concern was expressed that the guideline does nothing to eliminate or 
lessen the amount of paperwork surrounding the treatment of the injured worker. 
 RESPONSE: The commission disagrees. The purpose of this guideline was to 
provide an outline of those services which are considered to be reasonable and 
necessary for operative and nonoperative care of the injured worker with a 
spinal injury. This guideline, while it does not subtract from the amount of 
paperwork associated with the treatment of the injured worker, does provide an 
outline of expectations regarding documentation and course of action. This 
should make the process of treating the injured worker easier by providing a 
readily available reference or standard to which both the health care provider 
and insurance carrier can refer when determining the appropriateness of the 
proposed treatment plan or when performing a review of the injured worker's 
care. 
 COMMENT: Information was provided on the Omega Rehabilitation Center's 
Functional Restoration Therapy programs. This comment is more informative rather 
than a true comment on the Spine Treatment Guideline. 
 COMMENT: Suggestions were made regarding the correction of certain 
words/phrases as they currently appear in the guideline: 
 a. change "phases" to "levels" when referring to levels of care throughout the 
document; 
 b. change the phrase "Assessments/Evaluations" to read 
"Evaluations/Assessments" 
 c. insert the word "medically" in the phrase "services that are reasonable and 
medically necessary for operative and nonoperative care to the spine."; 
 d. in the section stating the responsibilities of the Primary Gatekeeper, the 
following additions and deletions are necessary: 
 i. insert after "management by other health plans" the words "for all further 
evaluations and care after the assessment has been made that the injury is non-
work related." 
 ii. delete subsection (c)(2)(A)(vi) which refers to the appropriate cost of the 
services; the commenter felt that this function was not within the domain of the 
treating doctor. 
 e. separately define consulting and referral doctor in the glossary; 
 f. in the Application Tables, the following revisions were suggested: 
 i. re-number #3 in the table "Initiation of Treatment-Treating Doctor", 
"Assessment/Evaluation and Treatment" to be #5 and re-number #4 and 5, 
respectively, as #3 and #4; 
 ii. in the same chart, under "Documentation Requirements", #8 should be re-
numbered as #4 and the remaining items re-numbered respectively. 
 The commission agrees to the following recommended revisions: 
 1. the substitution of "levels" for "phases" when referring to levels of care. 
 2. the insertion of the word "medically" in the phrase "services that are 
reasonable and medically necessary for operative and nonoperative care to the 
spine". 
 3. separately defining consulting and referral doctor in the glossary. 
 4. the suggested re-numbering listed above in the Application Tables. 
 The commission disagrees with the following recommended revisions: 
 1. the insertion of the phrase "for all further evaluations and care after the 
assessment has been made that the injury is non-work related". 
 2. the deletion of subsection (c)(2)(A)(vi) which refers to the appropriate 
cost of services. 
 3. the re-ordering of the phrase "Assessments/Evaluations" to 
"Evaluations/Assessments". 
 The reason for the disagreement is as follows: 
 1. not all treatment for nonrelated health care services is due to a 
noncompensable injury. The injured worker may have a co-morbidity, such as heart 
disease or diabetes, which is not related to the compensable injury but which 
still requires care by the treating doctor. 
 2. this subsection recommended for deletion is part of the responsibility of 
the treating doctor, as defined in of the Texas Labor Code, 408.025(b)which 
states that "The treating doctor shall be responsible for maintaining efficient 
utilization of health care." 
 3. there is no justification for reversing these words. 
 COMMENT: A suggestion was made by a commenter to delay the adoption of the 
proposed treatment guideline until the Agency for Health Care Policy and 
Research (AHCPR) study can be reviewed and those parts of the federal 
recommendations which are pertinent to this guideline included in the contents 
of the proposed treatment guideline. 
 RESPONSE: The commission disagrees with the proposal to delay the adoption of 
the Spine Treatment Guideline. The guideline is a medically sound document. The 
commission presented the AHCPR study to the MAC, outlining the differences and 
similarities between the two documents. 
 The following comments were received regarding the gatekeeper. 
 COMMENT: Concern was expressed in regards to subsection (c)(2), Primary 
Gatekeeper Responsibilities. It was recommended that if the commission wants the 
treating doctor to act as a gatekeeper, which is an additional duty, specific 
guidelines need to be promulgated as to: (1) increased weight of evidence as to 
the treating doctor's opinions and (2) reimbursement for the mandated case 
management services. The treating doctor should not and cannot be responsible 
for the actions of others beyond his/her control. 
 RESPONSE: The commission disagrees that charges need to be changed to reflect 
an additional increase in reimbursement for the primary gatekeeper. The 
responsibilities of the primary gatekeeper, as outlined in subsection (c) (2) 
are a delineation of the general statutory requirements as previously outlined 
in subsection (c)(1)(A)through (E). This is a clarification of the role of 
treating doctor (i.e., primary gatekeeper). 
 The new rule is adopted under the Texas Labor Code, sec.402.061, which 
authorizes the commission to adopt rules necessary to administer the Act, the 
Texas Labor Code, sec.413.011, which authorizes the commission to establish by 
rule medical policies and guidelines relating to necessary treatments for 
injuries, and the Texas Labor Code, sec.413.013, which authorizes the commission 
to establish by rule a program for prospective, concurrent, and retrospective 
review and resolution of a dispute regarding health care treatments and 
services; and to establish by rule a program for the systematic monitoring of 
the necessity of treatments administered and fees charged and paid for medical 
treatments or services, including the authorization of prospective, concurrent, 
or retrospective review under the medical policies of the commission to ensure 
that the medical policies or guidelines are not exceeded. 
 
 
  sec.134.1001. Spine Treatment Guideline 
 
  (a) Table of Contents. The following headings and their corresponding 
subdivisions comprise a table of contents for this section. 
 
  (1) Introduction-subsection (b). 
 
  (A) Purpose-subsection (b)(1). 
   
  (B) Goals-subsection (b)(2). 
   
  (C) Development Process-subsection (b)(3). 
   
  (D) Philosophy of Care-subsection (b)(4). 
     
  (2) Role of Primary Gatekeeper subsection (c). 
 
  (A) Statutory Requirements subsection (c)(1). 
   
  (B) Primary Gatekeeper Responsibilities subsection (c)(2). 
   
  (C) Referrals subsection (c)(3). 
   
  (D) Diagnostics subsection (c)(4). 
   
  (E) Expectation and Compliance subsection (c)(5). 
     
  (3) Application Instructions for Involved Parties subsection (d). 
 
  (A) Concepts and Governing Principles subsection (d)(1). 
   
  (B) Application Matrix Table subsection (d)(2). 
     
  (4) Ground Rules subsection (e). 
 
  (A) Introduction subsection (e)(1). 
   
  (B) Ground Rules subsection (e)(2). 
   
  (C) General Documentation Requirements subsection (e)(3). 
   
  (D) Documentation Requirements for Unrelated or Intercurrent Illness 
subsection (e)(4). 
     
  (5) Diagnostic Procedures subsection (f). 
 
  (A) Introduction subsection (f)(1). 
   
  (B) List of Diagnostic Interventions subsection (f)(2). 
   
  (C) Time Recommendations for Listed Procedures subsection (f)(3). 
     
  (6) Levels of Nonoperative Care subsection (g). 
 
  (A) Introduction subsection (g)(1). 
   
  (B) Criteria in Primary Intervention Phase Primary Level of Care 
subsection(g)(2). 
   
  (C) Referral Criteria in Secondary Intervention Phase Secondary Level of Care 
subsection (g)(3). 
   
  (D) Referral Criteria in Tertiary Intervention Phase Tertiary Level of Care 
subsection (g)(4). 
   
  (E) Criteria to Distinguish between Secondary and Tertiary subsection (g)(5). 
   
  (F) Levels of Care Tables subsection (g)(6). 
     
  (7) Assessments/Evaluations subsection (h). 
 
  (A) Interdisciplinary Assessment subsection (h)(1). 
   
  (B) Physical Capacity and Functional Capacity Assessments subsection (h) (2). 
   
  (C) Appropriate and Inappropriate Testing subsection (h)(3). 
     
  (8) Treatment Algorithms subsection (i). 
 
  (A) Introduction to Algorithms subsection (i)(1). 
   
  (B) Surgical Treatment Code Legend subsection (i)(2). 
   
  (C) Initial Approach to Treatment of Spinal Injury Chart 1 subsection (i)(3). 
   
  (D) Fracture and/or Dislocation Chart 2 subsection (i)(4). 
   
  (E) Soft Tissue Injury Chart 3 subsection (i)(5). 
   
  (F) Peri-Operative Algorithm Chart 4 subsection (i)(6). 
   
  (G) Surgical Treatment Chart 5 subsection (i)(7). 
   
  (H) Surgical Treatment Subchart Chart 5A subsection (i)(7)(A). 
   
  (I) Surgical Treatment Subchart Chart 5B subsection (i)(7)(B). 
   
  (J) Surgical Treatment Subchart Chart 5C subsection (i)(7)(C). 
   
  (K) Treatment Continuation Chart 6 subsection (i)(8). 
     
  (9) Glossary subsection (j). 
   
  (10) Bibliography subsection (k). 
     
  (b) Introduction. 
 
  (1) Purpose. The purpose of this guideline is to clarify those services that 
are reasonable and medically necessary for operative and nonoperative care to 
the spine for the injured workers of Texas. This guideline identifies a normal 
course of treatment. It is anticipated that there will be injured workers who 
will require less treatment than the average and other injured workers who will 
require more treatment. This is a guideline and shall not be used as the sole 
reason for denial of treatments and services. 
   
  (2) Goals. The following subparagraphs outline the primary goals of this 
guideline: 
 
  (A) to assist all parties with regard to the appropriate treatment and 
management of disorders of the spine; 
   
  (B) to establish elements against which aspects of care can be compared; 
   
  (C) to establish a guideline to identify clinically acceptable courses of 
treatment; 
   
  (D) to establish documentation standards which support the appropriateness of 
the level of service; and 
   
  (E) to provide a mechanism of prospective, concurrent, retrospective review 
for efficient and effective health care utilization. 
     
  (3) Development Process. The Texas Workers' Compensation Commission (TWCC), in 
conjunction with health care providers and other parties in the system, have 
developed clinical and diagnostic treatment guidelines. Following are three 
major components in the guideline development process. 
 
  (A) Design and Methodology. A search of all 50 workers' compensation state 
agencies revealed that only a few had developed treatment guidelines. The format 
and design of these guidelines were mainly in narrative presentation. Research 
revealed an algorithmic approach to be the most understandable. Therefore, the 
focus of this treatment guideline is toward an algorithmic approach versus 
straight text. 
   
  (B) Provider Work Group. Research into successful guidelines developed in the 
private sector identified that involvement from provider work groups achieves 
the best outcome regarding clinical policy development. 
   
  (C) Public Evaluation. The evaluation of the developed guideline should be 
broad and include comments from employees, employers, health care providers and 
insurance carriers. 
     
  (4) Philosophy of Care. The health care of the injured worker is a coordinated 
team effort. All parties including employees, employers, health care providers, 
insurance carriers and the Texas Workers' Compensation Commission should promote 
quality health care, injury specific treatment and appropriateness of care. 
Communication between all parties must remain open in order to achieve rapid 
recovery from the effects of the injury. This communication should promote a 
timely return to modified or full duty work that takes into account the job 
demands and the functional capabilities of the injured worker. 
     
  (c) Role of Primary Gatekeeper. 
 
  (1) Statutory Requirements. The following sections of the Texas Labor Code and 
specific Commission rules address key areas pertaining to those services that 
are reasonable and necessary for treatment of the spine. 
 
  (A) sec.408.021(a). An employee who sustains a compensable injury is entitled 
to all health care reasonably required by the nature of the injury as and when 
needed. The employee is specifically entitled to health care that: 
 
  (i) cures or relieves the effects naturally resulting from the compensable 
injury; 
   
  (ii) promotes recovery; and 
   
  (iii) enhances the ability of the employee to return to or retain employment. 
     
  (B) sec.408.021(b). Medical benefits are payable from the date of the 
compensable injury. 
   
  (C) sec.408.021(c). Except in an emergency, all health care must be approved 
or recommended by the employee's treating doctor. 
   
  (D) sec.408.025(b). The commission by rule shall adopt reasonable requirements 
for reports and records to be made available to other health care providers to 
prevent unnecessary duplication of tests and examinations. 
   
  (E) sec.408.025(c). The treating doctor shall be responsible for maintaining 
efficient utilization of health care. 
     
  (2) Primary Gatekeeper Responsibilities. 
 
  (A) The role of the treating doctor is an important role which requires the 
treating doctor to monitor all health care services being provided for the 
injured worker. These responsibilities of the treating doctor are vital aspects 
of the goal to ensure that the injured worker receives quality health care. This 
monitoring extends to ensure: 
 
  (i) the identification of the extent and severity of the injury initially; 
   
  (ii) the appropriateness of all services; 
   
  (iii) the relatedness of all services to the workers' compensation injury; 
   
  (iv) separation and referral of nonrelated health care services for management 
by other health plans; 
   
  (v) whether the treatment is duplicative, necessary and/or effective; 
   
  (vi) the appropriate cost of the services; 
   
  (vii) the quality of the treatment; and 
   
  (viii) enhancement and promotion of effective communication among all involved 
parties. 
     
  (B) Refer to sec.126.9 of this title and sec.133.3 of this title for 
responsibilities of the treating doctor. 
     
  (3) Referrals. The treating doctor is responsible for recommending timely and 
appropriate referrals. The treating doctor must clearly delineate the clinical 
rationale for all referrals. The documentation contained in the TWCC 64 should 
clearly outline whether the purpose of the referral is to corroborate the 
diagnosis and/or proposed course of treatment or to initiate ongoing treatment. 
It is appropriate for the treating doctor to document and explain the referral 
in the TWCC 61 or TWCC 64. Once a consultation or referral has occurred, the 
consulting or referral doctor should submit a summary report or initiate a case 
management phone call back to the treating doctor. This communication by the 
consulting or referral doctor is necessary to enable the treating doctor to meet 
his responsibility to submit a TWCC 64 every (60) days. 
   
  (4) Diagnostics. Diagnostic work should be performed in accordance with the 
recommended testing and timeframes contained in this guideline. If the need 
arises to deviate from the guideline, then a clinical rationale must be provided 
which adequately substantiates the need for this deviation. The need to repeat 
previously completed diagnostic procedures due to the quality of the study may 
trigger a review. All health care providers involved in the treatment of an 
injured worker must share copies of all diagnostic studies, film and reports in 
order to avoid unnecessary duplication of procedures. Section 133.2 of this 
title (relating to Sharing Medical Reports and Test Results) addresses the need 
to share medical records, including diagnostic studies, to avoid duplication. 
Section 133.106 of this title (relating to Fair and Reasonable Fees for Required 
Reports and Records) addresses reimbursement for copies of records. 
   
  (5) Expectation and Compliance. 
 
  (A) All health care providers must encourage injured workers to be active 
participants in their health care treatment regimens and must communicate to the 
injured worker realistic expectations regarding the potential outcome of this 
treatment regimen as it relates to his/her physical functioning and/or ability 
to return to work. Therefore, it is important to document the injured worker's 
compliance with his/her treatment regimen when reporting the progress of his/her 
recovery. 
   
  (B) Health care providers must explain to the injured worker in clear terms 
the extent and severity of the injury and the treatment needed. Health care 
providers must define the symptomatology that is directly and/or indirectly 
related to the injury and specify treatment not covered under workers' 
compensation. 
       
  (d) Application Instructions for Involved Parties. 
 
  (1) Concepts and Governing Principles. 
 
  (A) Health Care Provider. This guideline is to be used as a tool by the health 
care provider to establish the required elements to initiate and continue 
treatment. If, for example, a provider's treatment deviates from the guideline, 
documentation of a clearly delineated rationale for the need for this treatment 
would be required. 
 
  (i) This guideline identifies typical treatment based on normal tissue healing 
responses for the average injured worker. 
   
  (ii) It is expected that a subset of injured workers will be found to be 
outside the parameters of these guidelines. 
   
  (iii) This guideline should be used as a tool which identifies the recommended 
treatment parameters for treatment of injured workers within the workers' 
compensation system. 
   
  (iv) This guideline identifies the need to provide documentation which clearly 
explains the reason for the treatment, the relatedness to the workers' 
compensation injury and alternative treatment. 
   
  (v) The health care provider also becomes aware of the need to educate the 
injured worker of health care treatment appropriate in the workers' compensation 
injury. 
   
  (vi) This guideline recommends early return to work based upon the injured 
worker's functional capacity which includes ability, clinical status, and either 
full or modified job requirements. 
     
  (B) Insurance Carriers. The insurance carrier should use this guideline to 
compare treatment prospectively, concurrently and retrospectively with the 
predetermined elements contained in the guides. 
 
  (i) This document and its parameters serve only as a guideline and are not to 
be used as the sole reason for denial of treatments and services. 
   
  (ii) This guideline provides a tool by which to monitor the injured worker's 
recovery process. 
   
  (iii) This guideline serves as a tool to assist the insurance carriers in the 
medical audit process. 
   
  (iv) This guideline is not to be used to direct care toward a specific health 
care discipline or to a specific type of treatment. It is the responsibility of 
the insurance carrier to provide specific documentation and rationale if 
treatment is denied. This rationale may include elements of the guideline. 
Additional information regarding the rationale for denial of treatment may also 
be derived from the injured worker's medical records and from the professional 
opinion of a peer review, if utilized. 
   
  (v) It is expected that a subset of injured workers will be found to be 
outside the parameters of this guideline. 
     
  (C) Medical Review Division. The Medical Review Division will use the 
guideline as a tool for the basis of their administrative review of prospective, 
concurrent and retrospective treatment. It will also be used as a tool in 
conducting on-site audits for both health care providers and insurance carriers. 
   
  (D) Consulting or Peer Review Health Care Provider. This guideline should be 
used as a reference in advising the Medical Review Division and when the need 
for an unbiased medical opinion is indicated. The peer reviewer should use 
his/her clinical expertise in conjunction with the clinical intent of the 
guideline to address issues. 
   
  (E) Injured Worker. It is essential the injured worker understands his/her 
role in complying with recommended treatment. The recovery and return to work 
process requires active cooperation of the injured worker. 
   
  (F) Employer. It is the responsibility of the employer to report the 
compensable injury in a timely fashion to ensure that there is no delay in the 
treatment of the compensable injury. It is also the responsibility of the 
employer to work with the insurance carrier and health care providers to ensure 
that the injured worker is afforded the opportunity to return to work in either 
a modified or full employment capacity as rapidly as possible within the medical 
limitations of his/her injury. 
     
  (2) Application Tables. See Figures (1)-(3) published in the Tables and 
Graphics Section of this issue of the  Texas Register. 
 
  (A) Initiation of Treatment. 
         
  Figure 1: 28 TAC sec. 134.1001(d)(2)(A) 
 
  (B) Ongoing Treatment. 
     
  Figure 2: 28 TAC sec. 134.1001(d)(2)(B) 
 
  (C) Ongoing Treatment (For other parties involved). 
     
  Figure 3: 28 TAC sec.134.1001(d)(2)(C) 
 
  (e) Ground Rules. 
 
  (1) Introduction. The guidelines are not to be used as fixed treatment 
protocols. The guidelines reflect typical courses of intervention. It is 
acknowledged that, in atypical cases, treatment may fall outside these 
guidelines. However, those cases that exceed the guidelines level of treatment 
will be subject to more careful scrutiny and review and will require 
documentation of the special circumstances justifying that treatment. The 
guideline should not be seen as prescribing the type, frequency or duration of 
treatment. Treatment must be based on the injured worker's need and the doctor's 
professional judgment. 
   
  (2) Ground Rules. 
 
  (A) Not withstanding any other provision of this section, treatment of a work 
related injury must be: 
 
  (i) adequately documented; 
   
  (ii) evaluated for effectiveness and modified based on clinical changes; 
   
  (iii) provided in the least intensive setting; 
   
  (iv) cost effective; 
   
  (v) consistent with this guideline or contain a documented clinical rationale 
for deviation from this guideline; 
   
  (vi) objectively measured and demonstrate functional gains; and 
   
  (vii) consistent in demonstrating ongoing progress in the recovery process by 
appropriate re-evaluation of the treatment. 
     
  (B) Communication between all health care providers involved in treating the 
injured worker must ensure that all previous treatment and diagnostic tests are 
considered when developing a plan of treatment. All reports and records should 
be made available to all health care providers to prevent unnecessary 
duplication of tests and examinations (as provided in subsection (c)(2) and (3) 
of this section). 
   
  (C) Patient education is an essential component in ensuring patient compliance 
to all treatment. Education is essential for the active cooperation of the 
patient in all aspects of health care and as a means to prevent re-injury. It is 
essential that the patient understand his/her role in the recovery and return to 
work process. 
   
  (D) Although preoperative educational programs and chronic pain management 
programs are not specifically outlined, the intent of this guideline is not to 
eliminate or prohibit their use. When deemed medically necessary, these programs 
may be considered appropriate types of intervention to be utilized. 
   
  (E) All parties in the workers' compensation system should work together to 
ensure that the injured worker returns to work at the earliest medically 
appropriate time. Return-to-work is an important therapeutic approach which 
benefits the injured worker. The health care provider should communicate with 
the injured worker, employer and the insurance carrier to coordinate a 
successful return to work. 
   
  (F) The level of service should be the same as the health care provider's 
usual and customary level of service regardless of the payor system. 
   
  (G) The injured worker may move between levels of care or utilize 
interventions in more than one level of care simultaneously, depending on 
clinical indicators. 
   
  (H) Treatment durations are cumulative; however, it should not always be 
necessary to use full durations for any given level of care. 
   
  (I) An initial mental health evaluation to determine the injured worker's 
readiness for the Work Hardening program may be performed prior to entrance into 
the program. This evaluation is not considered part of the Work Hardening 
program. Group therapy, provided by a Qualified Mental Health Provider, is 
considered to be part of the Work Hardening program. Individual therapy (i.e., 
one-to-one therapy with a Qualified Mental Health Provider) is not considered to 
be part of the Work Hardening program. Referral for this evaluation must come 
from the treating doctor. 
   
  (J) The highest quality of patient care and clinical outcomes should be the 
standards by which referrals to secondary and tertiary care programs are 
determined. Documentation should be provided by the treating doctor which 
demonstrates the clinical progress of the injured worker's condition and 
evidence of the doctor's supervision. With this documentation present, both 
secondary and tertiary nonoperative care may be provided sequentially within the 
same facility or in facilities with linked ownership if self-referral or 
conflict of interest elements do not exist. 
   
  (K) All health care providers providing services to an injured worker have the 
responsibility to substantiate in their documentation the level of service. All 
payors have the responsibility to review all documentation submitted as the 
basis for the treatment and services provided. 
   
  (L) Any new treatment must meet acceptable standards of care and may be 
subject to review by the Texas Workers' Compensation Commission. 
   
  (M) Documentation of significant neurological deficit may support early 
intervention (zero-six weeks) of MRI's and CT scans, which would better direct 
the course of treatment. 
   
  (N) Indications for bone growth stimulators (internal and external) (CPT codes 
20974 and 20975) include: 
 
  (i) revision spinal fusion; 
   
  (ii) history of spinal fusion or delayed union at different level; 
   
  (iii) multiple level spinal fusion; 
   
  (iv) use of allograft; 
   
  (v) spondylolisthesis greater than grade two; and 
   
  (vi) nonassociated high risk problems: e.g. metabolic bone disease, smokers, 
diabetics, obesity. 
     
  (O) Interventional pain procedures may include spinal cord or peripheral nerve 
stimulation and/or implantable infusion pumps. CPT codes for these procedures 
include 64555, 63650, 63655, 63685, 63750, 63780, 64575, and 64590. These 
procedures are performed to achieve one or more of the following objectives: i. 
lesion specific delivery of medications to damaged nerve roots; ii. release of 
entrapped nerve roots from scars; iii. complete therapeutic neurodestructive 
procedures (e.g., injection of neurolytic substances, cryoneurolysis, and 
radiofrequency thermocoagulation); iv. establish diagnosis using only diagnostic 
procedures (e.g., nerve sleeve injections and facet injections) 
   
  (P) Preauthorization of any treatments or services will be as required in the 
Commission's preauthorization rule. 
   
  (Q) When it becomes necessary for an injured worker to travel in order to 
obtain appropriate and necessary medical care for a compensable injury, 
reimbursement for travel expenses is governed by sec.134.6 of this title. 
   
  (R) The CPT codes in the current Medical Fee Guideline should be used. The CPT 
codes listed should not be used until they are adopted into a current Medical 
Fee Guideline. 
     
  (3) General Documentation Requirements. 
 
  (A) The health care provider's documentation is vital as an information source 
regarding the injured worker's injury and treatment. It also provides 
information which impacts income benefits. For these reasons, many of the 
Commission's rules have set time requirements for submission of required 
reports. For example, the TWCC 61 could be the first report submitted which 
informs the insurance carrier of the injury. The TWCC 64 provides medical 
information regarding the injured worker's clinical progress and the need for 
continuation of any income benefits. The TWCC 69 provides the determination of 
MMI and an impairment rating which may result in a change in income benefits. 
   
  (B) Documentation should be provided by the health care provider to determine 
the level of care to be provided and the necessity for that care. The elements 
of that documentation may include: 
 
  (i) A description of the injury, including the events surrounding that injury 
and the extent and severity of that injury; 
   
  (ii) A description of any pre-existing condition(s), complicating conditions, 
and/or any non-related conditions; 
   
  (iii) A plan of treatment, including proposed methods of treatment, expected 
outcomes, and probable duration of treatment; 
   
  (iv) Updates to the plan of treatment as needed, including the clinical 
progress of the injured worker, and any revisions needed to the treatment plan 
in light of the injured worker's response to treatment; 
   
  (v) Education/information provided to the injured worker regarding his injury 
and plan of treatment, and the injured worker's compliance with this plan of 
treatment; and 
   
  (vi) Documentation substantiating the need for deviation from the guideline, 
if necessary. 
     
  (C) Permanent impairment for compensable injuries in workers' compensation 
should be limited to these injuries and illnesses for which physicians are able 
to demonstrate objective findings. 
   
  (D) The need for emergency treatment must be based on the doctor's 
professional judgment. This documentation must provide a clear explanation of 
the nature of the emergency, the injured worker's medical condition, 
complications which could occur as well as any irreversible conditions which 
occurred or could occur as a result of this event. 
     
  (4) Documentation Requirements for Unrelated or Intercurrent Illness. 
Situations may arise where certain medical conditions need to be delineated or 
clarified prior to intervention. Treatment administered to other body areas (not 
a part of the original injury) or for a pre-existing medical condition(s) must 
be identified and the relation of this treatment to the compensable injury 
documented by the health care provider. If it appears that this treatment is not 
related to the compensable injury, the injured worker should be informed by the 
health care provider that this treatment may not be covered by the insurance 
carrier. The rationale for such treatment and its relation to the compensable 
injury should also be clearly documented for the insurance carrier by the health 
care provider. 
     
  (f) Diagnostic Procedures. 
 
  (1) Introduction. This subsection provides an average timeline in which to 
utilize certain listed diagnostic studies. The actual need for the diagnostic 
studies will be dependent on both the amount of time that has passed since the 
date of injury and on the injured worker's documented clinical condition. If the 
clinical condition of the injured worker is more severe, certain tests may be 
required sooner than is proposed in this guideline. 
   
  (2) List of Diagnostic Interventions. The following subdivisions of this 
paragraph comprise a list of diagnostic interventions: 
 
  (A) history and physical: 
 
  (i) identify mechanism of injury; 
   
  (ii) correlate patient's association of complaint with mechanism of injury; 
and 
   
  (iii) correlate mechanism of injury and resultant body area(s) of injury; 
     
  (B) plain X-ray: 
 
  (i) five views; 
   
  (ii) two views; or 
   
  (iii) flexion/extension views; 
     
  (C) laboratory tests; 
   
  (D) myelogram; 
   
  (E) CT scan; 
   
  (F) MRI; 
   
  (G) CT Scan augmented with myelography; 
   
  (H) IV enhanced CT Scan; 
   
  (I) gadolinium MRI-only with a history of prior surgery, failed back surgery, 
or to rule out an infection; 
   
  (J) discography +/- CT scan; 
   
  (K) radionucleotide bone scan: 
 
  (i) nucleotide; 
   
  (ii) dual photon; or 
   
  (iii) P.E.T.; 
     
  (L) EMG/evoked potential; 
   
  (M) diagnostic selective nerve root injection-must be done under fluoroscopy; 
   
  (N) diagnostic facet injection-done under fluoroscopy control both diagnostic 
& therapeutic; 
   
  (O) physical capacity evaluation; 
   
  (P) functional capacity evaluation; or 
   
  (Q) mental health evaluation. 
     
  (3) Time Recommendations for Listed Diagnostic Interventions. 
 
  (A) Recommended treatment at zero to six weeks includes the diagnostic 
interventions listed in paragraph (2)(A)(B) and (C) of this subsection. 
   
  (B) Recommended treatment at six weeks to four months includes the diagnostic 
interventions listed in paragraph (2)(D)-(I) and (K)-(M) of this subsection. 
   
  (C) Recommended treatment at greater than four months includes the diagnostic 
interventions listed in paragraph (2)(J) and (N) of this subsection. 
   
  (D) The diagnostic interventions listed in paragraph (2)(O)-(Q) of this 
subsection may occur at any time after the initial date of injury. Once the 
injured worker has sufficiently recovered, a Physical Capacity Evaluation and/or 
Functional Capacity Evaluation is usually performed to determine whether or not 
the injured worker is considered a candidate for a work hardening or work 
conditioning program. These tests are usually performed just prior to entry into 
the program and at the end of the program to determine the injured worker's 
level of physical ability and his capability to return to work. 
       
  (g) Levels of Nonoperative Care. 
 
  (1) Introduction. The following subsection defines the criteria for referral 
to primary, secondary and tertiary levels of care that are reasonable and 
necessary for care to the spine. Primary, secondary and tertiary levels of 
nonoperative care are illustrated in Tables I, II and III in paragraph (6) of 
this subsection. The tables define duration and specific components of each 
level of care. The clinical condition of the injured worker, as documented by 
the treating doctor, will be the determining factor for placing the injured 
worker in the most appropriate level of care. The injured worker may move 
between these levels of care dependent upon his condition and the treatment 
preceding the move between levels. The duration of treatment at any one level of 
care may be less than or greater than the recommended duration dependent upon 
the documented condition of the injured worker. If the treatment provided 
exceeds the recommended duration at that level of care, additional documentation 
needs to be provided regarding the need for extended care. Please note that 
treatment durations are considered cumulative and it should not always be 
necessary to use full durations for any given level of care (see subsection 
(e)(2)(G) of this section). 
   
  (2) Primary Level of Care. This level of care is generally considered to be 
appropriate for injured workers immediately following the compensable injury; 
however, the injured worker in this level of care may also be an early 
postoperative patient or may be experiencing an acute exacerbation of his/her 
chronic back pain. Since bedrest and partial or total cessation of work over a 
brief period of time (i.e., 2 to 3 days maximum) is also considered to be part 
of the primary level of care, further treatment by a health care provider may 
not be considered necessary at this level of care. Little or no deconditioning 
has occurred due to the injury, immobilization or decreased activity. The goal 
for this level of care is symptom control to facilitate rapid recovery and 
return to work before deconditioning or psychosocial barriers occur. The usual 
duration for this level of care is eight weeks. 
   
  (3) Secondary Level of Care. This level of care is the first stage of 
rehabilitation for those injured workers who have not returned to productivity 
through the normal healing process. It is designed to facilitate return to 
productivity before the onset of chronic disability. It is individualized, time 
limited and of limited intensity. The injured worker has a history of a limited-
to-good response to early primary treatment with persistent symptoms limiting 
activities of daily living. The objective physical examination demonstrates 
findings suggestive of early deconditioning including loss of motion and/or 
strength with limitation of activities of daily living. Evidence of mental 
health or psychosocial barriers may be present which impede the injured worker's 
clinical progress. Duration of this level of care is generally up to eight 
weeks. In addition to the normative duration listed, an additional two weeks is 
added to secondary level for less intensive care if necessary at the termination 
of the tertiary level of care. Documentation of necessity must be included with 
the request for the additional two weeks. 
   
  (4) Tertiary Level of Care. This level of care is interdisciplinary, 
individualized, and intensive, designed for the injured worker who demonstrates 
physical and psychological changes consistent with chronic disability. There is 
a documented history of persistent failure to respond to nonoperative or 
operative treatment which surpasses the usual healing period of four to six 
months post-injury or post-surgery or special cases with severe mental health 
issues lasting more than two months without response to primary or secondary 
treatment. Psychosocial issues such as substance abuse, affective disorders, and 
other psychological disorders may be present. There is a documented inhibition 
of physical functioning evidenced by pain sensitivity, and nonorganic signs such 
as fear which produce a physical inhibition or limited response to reactivation 
treatment. This level of care may also be indicated for the injured worker whose 
physical capacity to work still does not meet the job requirements for heavy 
physical labor after adequate treatment, thereby causing an inability to return 
to full duty. This situation would be evidenced by an excessive transitional 
period of light duty or significant episodes of lost work time due to the need 
for continued medical treatment. This level of care is also indicated for those 
injured workers who cannot tolerate either primary or secondary levels of care. 
The usual duration for this level of care is generally up to six weeks. 
   
  (5) Criteria to Distinguish between Secondary and Tertiary Level of Care. Many 
factors may determine the choice between secondary and tertiary levels of care. 
In general, if lower cost secondary treatment can be effective, this level of 
care is preferred over the more expensive tertiary care. However, if the 
documented condition of the injured worker is indicative of the need for more 
intensive treatment, the tertiary level of care may be more appropriate. Key 
factors in determining the need for secondary versus tertiary care include: 
 
  (A) the time elapsed since injury; 
   
  (B) the presence of psychosocial barriers to recovery such as depression, 
substance abuse, personality disorder, etc., and the severity of these barriers; 
   
  (C) the lack of responsiveness to previously attempted treatment; 
   
  (D) the severity of physical/functional deconditioning; 
   
  (E) socioeconomic barriers to recovery; and/or 
   
  (F) failed back surgery. 
     
  (6) Level of Care Tables. See Figures 4-7 published in the Tables and Graphics 
Section in this issue of the Texas Register. 
 
  (A) Levels of Care Tables 
         
  Figure 4: 28 TAC sec. 134.1001(g)(6)(A) 
 
  (B) Table II. Secondary Level of Care 
     
  Figure 5: 28 TAC sec. 134.1001(g)(6)(B) 
 
  (C) Table III. Tertiary Level of Care 
     
  Figure 6: 28 TAC sec.134.1001(g)(6)(C) 
 
  (D) Table IV. Surgical Intervention 
     
  Figure 7: 28 TAC sec. 134.1001(g)(6)(D) 
 
  (h) Assessments/Evaluations 
 
  (1) Interdisciplinary Assessment. In certain cases involving either surgical 
or nonoperative treatment, an interdisciplinary assessment may be needed. This 
assessment may include: 
 
  (A) Sequelae of Injury. Injuries may produce a variety of unanticipated 
nonoperative or postoperative sequelae, including problems with other 
joints/regions due to deconditioning, chronic or progressive neurological 
conditions, urological problems, or a variety of mental health disturbances. Any 
or all of these may result in the need for an interdisciplinary assessment to 
determine what treatment options are needed to bring the injured worker to the 
highest functional level. 
   
  (B) Intercurrent Illness. Injured workers suffering from a variety of 
intercurrent illnesses (e.g., hypertension, cardiac disease, diabetes, etc.) may 
require medical management beyond the scope of the treating doctor. An 
interdisciplinary assessment may be needed to determine the treatment options 
required to bring the injured worker to the highest functional level, given the 
limitations of the intercurrent illness. Treatment for the intercurrent illness 
may not be related to the compensable injury and therefore, may not be the 
responsibility of the workers' compensation insurance carrier. 
   
  (C) Risk Factors for Complications. Some injured workers may have risk factors 
in their personal or family history which may affect the delivery of care. In 
particular, injured workers expecting to undergo surgery or to undergo an 
exercise program may demonstrate a variety of cardiovascular risk factors 
necessitating additional evaluations and modification to the treatment plan. 
     
  (2) Physical Capacity and Functional Capacity Assessments. This paragraph 
specifically discusses the issues of physical and functional capacity 
assessments. These measurements have been used to monitor the injured workers's 
clinical progress; to guide the doctors and/or therapists in determining an 
exercise program and to provide objective data to determine a permanent physical 
impairment. 
 
  (A) Physical Examination vs. Human Performance Measurement: A physical 
examination usually consists of a qualitative estimate of the injured worker's 
physical or functional ability. A human performance measurement, by contrast, 
involves the use of accurate devices and specific skills to quantitatively 
determine the performance parameters that provide an objective measurement of 
the injured worker's ability as it relates to the compensable injury. 
   
  (B) A physical examination and neurological evaluation may include the 
following: 
 
  (i) appearance: observation and palpation; 
   
  (ii) flexibility (extremity joint or spinal region): usually observational; 
   
  (iii) posture and deformities; 
   
  (iv) vascular integrity; 
   
  (v) dermatomal sensation: observational, to detect neurological sensory 
deficit; 
   
  (vi) myotomal strength: usually observational, by manual muscle testing, to 
detect gross neurological motor deficits; and 
   
  (vii) reflexes to detect neurological reflex asymmetry. 
     
  (C) A physical capacity evaluation of the injured area may include the 
following: 
 
  (i) range of motion: quantitative measurements (using appropriate devices) of 
the injured joint or region (i.e., knee, shoulder, lumbar spine, cervical spine, 
etc.); and 
   
  (ii) strength/endurance: quantitative measures of the injured area or region 
using accurate devices (isometric, isoinertial and/or isokinetic devices in one 
or more planes), with comparison to contralateral side and/or normative 
database. 
     
  (D) A functional capacity evaluation of the whole person or multiple areas of 
the body may include the following: 
 
  (i) isometric lifting: NIOSH standard leg lift, torso lift, arm lift or 
extremity isometric test using measurement device; 
   
  (ii) isokinetic lifting: controlled speed floor-to-knuckle, knuckle-to-
shoulder lifts using measurement devices and standardized protocols; 
   
  (iii) isoinertial lifting: standardized free weight lifting tests; 
   
  (iv) activities of daily living tests: standardized tests (but often 
observational) of generic functional tasks (i.e. pushing, pulling, kneeling, 
squatting, carrying, climbing, etc.) 
   
  (v) hand function tests: measurement of fine/gross motor coordination, grip 
strength, pinch strength, manipulation tests, etc., using measurement devices; 
   
  (vi) submaximal cardiovascular endurance tests: measurement of aerobic 
capacity using bicycle or treadmill; and 
   
  (vii) static positional tolerance: observational for tolerance of sitting or 
standing tolerance. 
       
  (3) Appropriate and Inappropriate Testing. 
 
  (A) Evaluations Appropriate to Level of Care. The actual need for diagnostic 
studies is dependent on both the amount of time that has passed since the date 
of injury and on the injured worker's documented clinical condition. To 
determine the level of testing appropriate for the injured worker, please refer 
to subsection (f) (relating to Diagnostic Procedures) of this section. 
   
  (B) Inappropriate Testing. Certain tests and procedures are inappropriate for 
the assessment of work-related injuries. Some examples include tests performed 
only to assess the injured workers' efforts, physical capacity assessments for a 
joint or body region not related to the compensable injury or invalid or 
scientifically unjustifiable techniques. 
       
  (i) Treatment Algorithms. Paragraphs (1)-(7) of this subsection present 
commonly pursued courses of treatment for spinal injuries depending on 
presenting conditions and associated factors. Algorithms are provided for 
progressive decisions relating to treatment approaches as well as commonly 
recognized treatment procedures.The treatment algorithms presented in this 
guideline offer greater potential for agreement between health care providers 
and payors on medical utilization for specific conditions than use of ICD-9 
codes alone. Health care providers who pursue treatment at variance with the 
guideline are subject to greater documentation requirements as provided in 
subsection (e)(4) of this section. 
 
  (1) Surgical Treatment Code Legend. 
       
  See Figures 8 and 9 published in the Tables and Graphics Section of this issue 
of the  Texas Register. 
   
  Figures 8 and 9: 28 TAC sec.134.1001(i)(1) 
 
  (2) Initial Approach to Treatment of Spinal Injury Chart 1. See Figure 10 
published in the Tables and Graphics Section of this issue of the Texas Register 
. 
     
  Figure 10: 28 TAC sec.134.1001(i)(2) 
 
  (3) Fracture and/or Dislocation Chart 2. See Figure 11 published in the Tables 
and Graphics Section of this issue of the Texas Register. 
     
  Figure 11: 28 TAC sec.134.1001(i)(3) 
 
  (4) Soft Tissue Injury Chart 3. See Figure 12 published in the Tables and 
Graphics Section of this issue of the  Texas Register. 
     
  Figure 12: 28 TAC sec.134.1001(i)(4) 
 
  (5) Peri-Operative Algorithm Chart 4. See Figure 13 published in the Tables 
and Graphics Section of this issue of the  Texas Register. 
     
  Figure 13: 28 TAC sec.134.1001(i)(5) 
 
  (6) Surgical Treatment Chart 5. See Figure 14 published in the Tables and 
Graphics Section of this issue of the  Texas Register. 
     
  Figure 14: 28 TAC sec.134.1001(i)(6) 
 
  (A) Surgical Treatment Subchart 5A. See Figure 15 published in the Tables and 
Graphics Section of this issue of the  Texas Register. 
     
  Figure 15: 28 TAC sec.134.1001(i)(6)(A) 
 
  (B) Surgical Treatment Subchart 5B. See Figure 16 published in the Tables and 
Graphics Section of this issue of the  Texas Register. 
     
  Figure 16: 28 TAC sec.134.1001(i)(6)(B) 
 
  (C) Surgical Treatment Subchart 5C. See Figure 17 published in the Tables and 
Graphics Section of this issue of the  Texas Register. 
     
  Figure 17: 28 TAC sec.134.1001(i)(6)(C) 
 
  (7) Treatment Continuation Chart 6. See Figure 18 published in the Tables and 
Graphics Section of this issue of the  Texas Register. 
     
  Figure 18: 28 TAC sec.134.1001(i)(7) 
 
  (j) Glossary. 
 
  (1) Active Care vs. Passive Care. 
 
  (A) Active care-modes of treatment or care requiring that the injured worker 
participate in and be responsible for the level of care received. 
   
  (B) Passive care-modes of treatment or care which do not require the injured 
worker to participate in his/her care; i.e., the care is "done to" or "applied 
to" the injured worker (e.g., hot packs or cold packs) 
     
  (2) Chronic Pain Management-a program which provides coordinated, goal-
oriented, interdisciplinary team services to reduce pain, improve functioning, 
and decrease the dependence on the health care system of persons with chronic 
pain syndrome. 
   
  (3) Clinical plateau-a period of time of relative stability in which the 
injured worker displays minimal or minor changes in his/her condition. 
   
  (4) Clinical Progress vs. Lack of Clinical Progress. 
 
  (A) Clinical progress-documented change in the condition of the injured 
worker, in response to the injured worker's current treatment program. 
   
  (B) Lack of clinical progress-documented absence of change in the condition of 
the injured worker over a period of time of no less than one (1) month, 
requiring re- evaluation of the injured worker's condition and re-evaluation of 
the current treatment program. 
     
  (5) Consulting doctor-a doctor who provides an opinion or advice regarding the 
evaluation and/or management of a specific problem, as requested by the treating 
doctor, the Commission, or the insurance carrier. A consulting doctor may only 
initiate diagnostic and/or therapeutic services with approval from the treating 
doctor. 
   
  (6) Doctor-a doctor of medicine, osteopathic medicine, optometry, dentistry, 
podiatry, or chiropractic who is licensed and authorized to practice. 
   
  (7) Health care facility-means a hospital, emergency clinic, outpatient 
clinic, or other facility providing health care. 
   
  (8) Health care practitioner. 
 
  (A) an individual who is licensed to provide or render and provides or renders 
health care; or 
   
  (B) a nonlicensed individual who provides or renders health care under the 
direction or supervision of a doctor. 
     
  (9) Health care provider-a health care facility or health care practitioner 
   
  (10) Impairment-any anatomic or functional abnormality or loss existing after 
maximum medical improvement that results from a compensable injury and is 
reasonably presumed to be permanent. 
   
  (11) Interdisciplinary programs-programs in which the delivery of services is 
provided by more than one type of health care service (e.g., occupational 
therapy, physical therapy, counseling services, medical services). Examples of 
this type of program include work hardening, outpatient medical rehabilitation, 
and chronic pain management. 
   
  (12) Intervention-the act or fact of interfering with a condition to modify it 
or with a process to change its course 
   
  (13) Level of service-refers to primary, secondary, or tertiary care. 
   
  (14) Maximum Medical Improvement (MMI)-the earlier of the following two items: 
 
  (A) the earliest date after which, based on reasonable medical probability, 
further material recovery from or lasting improvement to an injury can no longer 
reasonably be anticipated; or 
   
  (B) the expiration of 104 weeks from the date on which income benefits begin 
to accrue. 
     
  (15) Outpatient Medical Rehabilitation-a program of coordinated and integrated 
services, evaluation, and/or treatment with emphasis on improving the functional 
levels of the persons served. The program is interdisciplinary in nature and is 
applicable to those persons who have severe functional limitations of recent 
onset or recent regression or progression or those persons who have not had 
prior exposure to rehabilitation. Services may be directed toward the 
development and/or maintenance of the optimal level of functioning and community 
integration of the persons served. 
   
  (16) Referral doctor-a consulting doctor who initiates health care treatments 
at the request of the treating doctor. 
   
  (17) Self-referral-the direction of a patient to another doctor, institution 
or facility whereby the referring doctor has a financial or conflict of interest 
element. 
   
  (18) Significant Neurological Deficit-rapidly progressing symptoms of 
increased physiological impairment such as severe weakness, bowel or bladder 
dysfunction directly related to the spinal injury, or severe sensory impairment. 
   
  (19) Sprain-an injury to a ligament A. Mild (Grade 1)-only a few fibers are 
torn; ligament is mostly intact and the joint is stable; B. Moderate (Grade 2)-
more fibers are torn, resulting in some instability with abnormal joint motion 
C. Severe (Grade 3)-ligaments are completely disrupted and instability may be 
severe (synonymous with marked). 
   
  (20) Strain-an injury to a muscle A. Mild (Grade 1)-only a few fibers are 
torn; muscle is mostly intact and functional; B. Moderate (Grade 2) -more muscle 
fibers are torn resulting in muscle pain with contraction; C. Severe (Grade 3)-
tendons are completely disrupted, extreme pain and loss of use of muscle. 
   
  (21) Treating doctor-the doctor primarily responsible for coordinating the 
employee's health care for an injury. (synonymous with Primary Gatekeeper) 
   
  (22) Treatment Duration-time allowed for treatment for a specific level of 
care. 
   
  (23) Treatment plan-this is a written document which must contain the 
following components: A. type of intervention/treatment modality B. frequency of 
treatment; C. expected duration of treatment; D. expected clinical response to 
treatment; and E. specification of a re-evaluation timeframe. 
   
  (24) Work Conditioning-a highly structured, goal-oriented, individualized 
treatment program using real or simulated work activities in conjunction with 
conditioning tasks. Work conditioning is a single disciplinary approach. 
   
  (25) Work Hardening-a highly structured, goal-oriented, individualized 
treatment program designed to maximize the ability of the persons served to 
return to work. Work Hardening programs are interdisciplinary in nature with a 
capability of addressing the functional, physical, behavioral, and vocational 
needs of the injured worker. Work Hardening provides a transition between 
management of the initial injury and return to work while addressing the issues 
of productivity, safety, physical tolerances, and work behaviors. Work Hardening 
programs use real or simulated work activities in a relevant work environment in 
conjunction with physical conditioning tasks. These activities are used to 
progressively improve the biomechanical, neuromuscular, 
cardiovascular/metabolic, behavioral, attitudinal, and vocational functioning of 
the persons served. 
     
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  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 authority. 
 Issued in Austin, Texas, on March 20, 1995. 
 TRD-9503464 
  Susan Cory 
 General Counsel 
 Texas Workers' Compensation Commission 
    Effective date: June 1, 1995 
 Proposal publication date: September 20, 1994 
 For further information, please call: (512) 440-3700 
         
                     
  TITLE 40. SOCIAL SERVICES AND ASSISTANCE 
 Part I. Texas Department of Human Services 
  Chapter 94. Nurse Aides 
  
  The Texas Department of Human Services (DHS) adopts amendments to its Chapter 
94, Nurse Aides, sec.sec.94.2, 94.5-94.9, and 94.11, concerning definitions; 
competency evaluation program requirements; program director and skills examiner 
requirements; filing and processing an application for a nurse aide training and 
competency evaluation program (NATCEP), or skills examiner; approval, 
reapproval, and inspection of a NATCEP; withdrawal of approval of a NATCEP, and 
skills examiner; and registry, findings, inquiries; and adopts the repeal of and 
new sec.94.13, concerning requirements for criminal conviction checks of nurse 
aides. Sections 94.7, 94.9, and 94.11 are adopted with changes to the proposed 
text as published in the September 27, 1994, issue of the  Texas Register (19 
TexReg 7589). The amendments to sec.sec.94.2, 94.5, 94.6, and 94.8, and the 
repeal of and new sec.94.13 are adopted without changes to the proposed text, 
and will not be republished. 
 The justification for the amendments, repeal, and new section is to update and 
strengthen these regulations as well as to ensure continued compliance with the 
mandates of the Omnibus Budget Reconciliation Act of 1987 (OBRA '87) which forms 
the foundation of the NATCEP as operated by DHS. 
 The amendments, repeal, and new section will function by providing updated 
rules concerning the regulation of NATCEPs and nurse aides. During the public 
comment period, DHS received comments from the Texas Health Care Association. A 
summary of the comments and DHS's responses follow. 
 Comment: An eligible individual should be allowed to challenge free-standing 
competency evaluation programs (CEPs) twice rather than once as stated in 
sec.94.5(c)(1)(D)(4). Sometimes an individual, who has demonstrated skills, 
performs poorly on the free-standing CEP because of stage fright or feelings of 
being unsure. 
 Response: DHS believes that allowing an eligible individual to challenge the 
free-standing CEP once is appropriate. If an individual fails the free-standing 
CEP, the individual must have the benefit of participating in a nurse aide 
training program in order to strengthen the knowledge and skills required to 
become a certified nurse aide. After participating in a nurse aide training 
program, the individual will have three opportunities to pass the CEP. 
 Comment: The function of skills examiner should not be performed by DHS staff 
as stated in the proposed amendment to sec.94.6(c). Before this type of change 
is even considered by DHS, tremendous work is needed on how this will be 
implemented and how it will be carried out. 
 Response: Title 42, Code of Federal Regulations, sec.483.154(c)(i) gives states 
the authority to directly administer the competency examination and evaluation 
or approve an entity to provide this service. The proposed language in 
sec.94.6(c) complies with the federal regulations. 
 Comment: In sec.94.7(c), the time period during which DHS provides notice of 
approval or proposed disapproval of a NATCEP application or skills examiner or 
requests additional information on a NATCEP application or skills examiner 
should not be increased from 30 to 60 days. 
 Response: Title 42, Code of Federal Regulations, sec.483.152(c) requires states 
to provide notice within 90 days regarding the approval or disapproval of a 
NATCEP application or skills examiner or a request for additional information. A 
90-day window provides DHS additional time for processing an application, if 
necessary. 
 Comment: In sec.94.7(e), the time period during which a written appeal may be 
filed regarding a proposed disapproval of a NATCEP or skills examiner should not 
be decreased from 20 to 10 days. In addition, this 20-day period should begin 
upon the receipt of the proposed disapproval notice. 
 Response: DHS agrees and will lengthen the time period for filing written 
appeals to 20 days after receiving the disapproval notice. Although sec.79.1605 
of this title (relating to Request for a Hearing) provides 15 days for filing an 
appeal, DHS has added five days for mailing the appeal and internal routing at 
DHS. 
 Comment: Revise sec.94.9(e) so that the period of time for initiating a written 
appeal regarding DHS's withdrawing approval of a NATCEP or skills examiner 
begins with the date on which the withdrawal notice is personally delivered. 
 Response: DHS is revising sec.94.9(e) to state that the period of time for 
initiating a written appeal of a withdrawal notice will begin with the receipt 
of the withdrawal notice in accordance with sec.79.1605 of this title (relating 
to Request for a Hearing). In addition, to maintain consistency with the changes 
to sec.94.7(e), the time period for filing a written appeal has been increased 
to 20 days. 
 Comment: There is no need for both the facility and the nurse aide to submit 
documentation to DHS to verify the current employment status of a nurse aide, as 
stated in sec.94.11(b)(1) and (2). 
 Response: DHS agrees with this recommendation and is adopting sec.94.11(b)(2) 
with changes to state that nurse aides must submit employment documentation to 
DHS unless the nurse aides know this was done by the facilities where they were 
employed. 
 In addition to changes resulting from comments, DHS is making technical changes 
to correct several inaccuracies. In the definition of nurse aide in sec.94.2, 
the federal reference has been changed to Code of Federal Regulations (CFR), 
Chapter 42, sec.sec.483.151-483.154. In sec.94.7(e), the reference for the 
hearing process has been changed to Title 40, Texas Administrative Code (TAC), 
sec. sec.79.1601-79.1614. 
 Section 94.9(e) has been corrected to state that an administrative law judge 
conducts an appeal hearing for the withdrawal of approval of a NATCEP or skills 
examiner. A change has been made to  sec.94.11(c) to indicate that written 
requests for a hearing on allegations of abuse, neglect, or misappropriation of 
property by a nurse aide must be made within 20 days of the date the notice is 
mailed, in order to be consistent with the informal hearing rules at 40 TAC 
sec.sec.79.1001-79.1007. 
   
  40 TAC sec.sec.94.2, 94.5-94.9, 94.11 
 
  The amendments are adopted under the Human Resources Code, Title 2, Chapters 
22 and 32; the Health and Safety Code, Chapter 250; and Texas Civil Statutes, 
Article 4413 (502), sec.16. The Human Resources Code, Chapters 22 and 32, 
provide the department with the authority to administer public and medical 
assistance programs. The Health and Safety Code, Chapter 250, provides the 
department with the authority to administer the nurse aide program and registry. 
Texas Civil Statutes, Article 4413(502), sec.16, provides the Health and Human 
Services Commission with the authority to administer medical assistance funds. 
 The amendments implement the Human Resources Code, sec. sec.32.001-32.042, and 
the Health and Safety Code, Chapter 250, sec.sec.250.001-250.009. 
 
 
  sec.94.7. Filing and Processing an Application for a Nurse Aide Training and 
Competency Evaluation Program, or Skills Examiner. 
 
  (a) (No change.) 
   
  (b) The Texas Department of Human Services (department) will consider whether 
the applicant complies with the Omnibus Budget Reconciliation Act of 1987 (Act) 
and this chapter. 
   
  (c) Notice of approval or proposed disapproval of the application or request 
for additional information will be given to the applicant within 90 days of the 
receipt of a complete application. If the application is proposed to be 
disapproved due to noncompliance with the requirements of the Act or this 
chapter, the reason for disapproval must be given in the notice. 
   
  (d) The applicant will be notified in writing of any deficiencies found in the 
complete application and given an opportunity to demonstrate compliance with 
provisions of the Act and this chapter by written response within 10 days of 
receipt. 
   
  (e) An applicant for approval of a nurse aide training and competency 
evaluation program (NATCEP) or skills examiner may request a hearing on a 
proposed disapproval. Such request must be made, in writing, within 20 days of 
the date the notice is received by the applicant. Such hearing will be held 
pursuant to the applicable provisions of the department's formal hearing 
procedures as provided in sec.sec.79.1601-79.1614 of this title (relating to 
Formal Hearings). The final hearing decision will be made as provided in this 
subsection. The administrative law judge, upon completion of the hearing, must 
prepare a written decision based solely on the evidence presented at the hearing 
and the statutory and regulatory provisions of the Act and this chapter. The 
decision must state the reasons for the decision. 
 
  (1)-(2) (No change.) 
 
       
  sec.94.9. Withdrawal of Approval of a Nurse Aide Training and Competency 
Evaluation Program, and Skills Examiner. 
 
  (a) Approval of a nurse aide training and competency evaluation program 
(NATCEP), or skills examiner may be withdrawn for any violation of or 
noncompliance with the Omnibus Budget Reconciliation Act of 1987 or this 
chapter. 
   
  (b)-(c) (No change.) 
   
  (d) If the department proposes to withdraw approval of a NATCEP, or skills 
examiner, the department must notify the NATCEP, or skills examiner by mail at 
the last known address as shown in the department's records or by personal 
delivery. The notice must state the facts or conduct alleged to warrant the 
action and state that the individual has an opportunity to request in writing a 
hearing. 
   
  (e) The NATCEP or individual notified may request a hearing. A request for a 
hearing must be made, in writing, within 20 days of the date the notice is 
received by the NATCEP or individual. Such hearing will be held pursuant to the 
applicable provisions of the department's formal hearing procedures as provided 
in sec.sec.79.1601-79.1614 of this title (relating to Formal Hearings). The 
final hearing decision will be made as provided in this subsection. The 
administrative law judge, upon completion of the hearing, must prepare a written 
decision based solely on the evidence presented at the hearing and the statutory 
and regulatory provisions of the Act and this chapter. The decision must state 
the reasons for the decision. 
 
  (1)-(2) (No change.) 
     
  (f) (No change.) 
 
     
  sec.94.11. Registry; Findings; Inquiries. 
 
  (a) (No change.) 
   
  (b) Nurse aide certification expires 24 months after being added to the Nurse 
Aide Registry or after the last date of verified employment. The department will 
remove a Nurse Aide Registry entry for which appropriate employment verification 
has not been received prior to the expiration date, unless a finding of abuse, 
neglect, or misappropriation of resident property is on the registry for that 
individual. To maintain current Nurse Aide Registry status, the following 
requirements must be met: 
 
  (1) Facilities must submit a department form to the department annually to 
document all nurse aides who are performing or have performed paid nursing or 
nursing-related services at the facility during the past year. 
   
  (2) A nurse aide must submit a department form to the department prior to the 
expiration of his certification to document that the nurse aide has performed 
paid nursing or nursing-related services, unless the aide knows documentation 
was submitted by the facility or facilities at which he was employed. 
     
  (c) The department reviews and investigates allegations of abuse, neglect, or 
misappropriation of resident property by a nurse aide. A nurse aide must be 
given written notice by the department of a proposed finding on an allegation 
and may request a hearing. The request must be made, in writing, within 20 days 
of the date the notice is mailed to the nurse aide. The hearing is held pursuant 
to the applicable provisions of the department's informal hearing procedures as 
provided in sec.sec.79.1001-79.1007 of this title (relating to Informal 
Hearings). The final hearing decision is made as provided in paragraph (3) of 
this subsection. 
 
  (1) A copy of the department's investigative report concerning the incident 
which is the subject of the hearing must be provided prior to the hearing by the 
hearing coordinator to the nurse aide, upon written request by the nurse aide. 
Such report may be used in the preparation of the nurse aide's defense, but is 
otherwise confidential in accordance with Health and Safety Code, Chapter 242, 
Section 127, and no other use and no subsequent release is authorized. 
   
  (2) (No change.) 
   
  (3) The hearing officer, upon completion of the hearing, must prepare a 
written decision based solely on the evidence presented at the hearing and the 
statutory and regulatory provisions of the Omnibus Budget Reconciliation Act of 
1987 and this chapter. The decision must state the reasons for the decision. 
     
  (d) If an alleged act of abuse, neglect, or misappropriation by a certified 
nurse aide, who also is a permitted medication aide under Chapter 95 of this 
title (relating to Medication Aides), violates the rules in this chapter and 
Chapter 95 of this title, the nurse aide's request for an appeal of the 
department's finding on abuse, neglect, and/or misappropriation must be 
conducted through the department's formal hearing procedures under sec. sec.79. 
1601-79.1612 of this title (relating to Formal Appeals) and the Administrative 
Procedures Act, Title 10 of the Texas Government Code, sec.sec.2001.051 et seq. 
Through the formal hearing, determinations are made on both the certificate of 
nurse aide practice and the permit for medication aide practice. 
   
  (e) The department must not make a finding that an individual has neglected a 
resident if the individual demonstrates that the neglect was caused by factors 
beyond the individual's control. 
   
  (f) The registry, the nurse aide, and the administrator of the facility where 
the event occurred must be notified of the findings. 
   
  (g) The registry must include the documented findings involving an individual 
listed on the registry, as well as any brief statement of the individual 
disputing the findings. 
   
  (h) The information on the registry must be made available to the public. 
   
  (i) The department, in the case of inquiries to the registry, must verify if 
the individual is listed on the registry and must disclose any information 
concerning a finding of neglect, abuse or misappropriation of resident property 
involving an individual listed on the registry. It must also disclose any 
statement by the individual related to the finding or a clear and accurate 
summary of such a statement. 
 
  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 March 21, 1995. 
 TRD-9503479 
  Nancy Murphy 
 Section Manager, Media and Policy Services 
 Texas Department of Human Services 
    Effective date: May 1, 1995 
 Proposal publication date: September 27, 1994 
 For further information, please call: (512) 450-3734 
         
           
  40 TAC sec.94.13 
 
  The repeal is adopted under the Human Resources Code, Title 2, Chapters 22 and 
32; the Health and Safety Code, Chapter 250; and Texas Civil Statutes, Article 
4413 (502), sec.16. The Human Resources Code, Chapters 22 and 32, provide the 
department with the authority to administer public and medical assistance 
programs. The Health and Safety Code, Chapter 250, provides the department with 
the authority to administer the nurse aide program and registry. Texas Civil 
Statutes, Article 4413(502), sec.16, provides the Health and Human Services 
Commission with the authority to administer medical assistance funds. 
 The repeal implements the Human Resources Code, sec.sec.32.001-32.042, and the 
Health and Safety Code, Chapter 250, sec.sec.250.001-250.009. 
 
  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 March 21, 1995. 
 TRD-9503488 
  Nancy Murphy 
 Section Manager, Media and Policy Services 
 Texas Department of Human Services 
    Effective date: May 1, 1995 
 Proposal publication date: September 27, 1994 
 For further information, please call: (512) 450-3765 
         
     
  The new section is adopted under the Human Resources Code, Title 2, Chapters 
22 and 32; the Health and Safety Code, Chapter 250; and Texas Civil Statutes, 
Article 4413 (502), sec.16. The Human Resources Code, Chapters 22 and 32, 
provide the department with the authority to administer public and medical 
assistance programs. The Health and Safety Code, Chapter 250, provides the 
department with the authority to administer the nurse aide program and registry. 
Texas Civil Statutes, Article 4413(502), sec.16, provides the Health and Human 
Services Commission with the authority to administer medical assistance funds. 
 The new section implements the Human Resources Code, sec. sec.32.001-32.042, 
and the Health and Safety Code, Chapter 250, sec.sec.250.001-250.009. 
 
  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 March 21, 1995. 
 TRD-9503487 
  Nancy Murphy 
 Section Manager, Media and Policy Services 
 Texas Department of Human Services 
    Effective date: May 1, 1995 
 Proposal publication date: September 27, 1994 
 For further information, please call: (512) 450-3765 
         
    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 5. 97, the 
Texas Register publishes notices of actions taken by the Department of Insurance 
pursuant to Chapter 5, Subchapter L, of the Code. Board action taken under these 
articles is not subject to the Administrative Procedure 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 Department of Insurance, 333 Guadalupe, Austin.) 
   
  The Commissioner of Insurance, at a public hearing under Docket Number 2140 
held at 1:00 p.m., March 20, 1995 in Room 100 of the Texas Department of 
Insurance Building, 333 Guadalupe Street in Austin, Texas, adopted amendments 
proposed by the Texas Automobile Insurance Service Office (TAISO) to the Texas 
Automobile Rules and Rating Manual (the Manual). TAISO's petition (Reference 
Number A-1294-30) was published in the February 17, 1995, issue of the Texas 
Register (20 TexReg 1137). 
 Amendments are adopted to the following in the rule portion of the Manual: 
Rules 6, 13, 15, 26, 42, 49, 73, 74, 75, and 135. None of the changes are 
substantive, and many of them merely change the current wording, Texas 
Automobile Insurance Plan to Texas Automobile Insurance Plan Association in 
conformity with the Insurance Code, Article 21.81. 
 Amendments are also adopted to the following in the rate portion of the Manual: 
Rules 24, 129, 134, and 135. These changes are also non-substantive. 
 Current Endorsement 544B is to be redesignated 544C, and is to be renamed, 
Texas Automobile Insurance Plan Association. 
 There are no substantive amendments adopted, and the changes other than those 
concerning the new name of the Texas Automobile Insurance Plan Association are 
described in the following five paragraphs. 
 The change to Section VII-Rule 135 adds the phrase rates -Refer to Rate Section 
VII to the end of this rule's Section II, subsection H. This change directs 
users to the proper section for rating information relating to optional 
inflation coverage. The change is necessary to add uniformity to this section of 
the Manual and to clarify that Rate Section VII applies to subsection H as well 
as subsections F, G, and I. 
 The changes to Rate Section II-Rule 24 redesignate Section B, paragraphs 1., 
2., and 3. relating to Liability Coverages as Section B, paragraphs 2., 3., and 
4. respectively. Section C relating to Premium Computation is also redesignated 
as Section B, paragraph 6. The changes are necessary to make the rating 
provisions correspond with the classification and numerical system utilized in 
Section II-Rule 24 of the Manual. 
 The change to Rate Section VII-Rule 129 deletes the separate reference to 
Section B, paragraph 1.b. relating to medical payments and personal injury 
protection. The substance of the provision remains without specific 
identification. The change is necessary to make the rating provision correspond 
with the classification currently found in Section VII-Rule 129 of the Manual. 
This change further adds uniformity to the related provision and prevents 
unnecessary confusion. 
 The change to Rate Section VII-Rule 134 deletes the parentheses from Section D, 
paragraphs 5.b. and c. This change is merely an editorial correction. 
 The change to Rate Section VII-Rule 135 capitalizes the s in the word specified 
in the chart outlined in this rule's Section I, paragraph C.5. This change is 
merely an editorial correction. 
 The amendments as adopted by the Commissioner of Insurance are shown in 
exhibits on file with the Chief Clerk under Reference Number A-1294-30, which 
are incorporated by reference into Commissioner's Order Number 95-0255. 
 The Commissioner of Insurance has jurisdiction over this matter pursuant to the 
Insurance Code, Articles 5.06, 5.96, 5.98, and 5.101. 
 The notification is made pursuant to the Insurance Code, Article 5.96, which 
exempts it from the requirements of the Government Code. 
 Consistent with the Texas Insurance Code, Article 5.96(h), the Department will 
notify all insurers writing automobile insurance of this adoption by letter 
summarizing the Commissioner's action. 
 IT IS THEREFORE THE ORDER of the Commissioner of Insurance that the Texas 
Automobile Rules and Rating Manual is amended as described herein, and the 
amendments are adopted to become effective June 1, 1995. 
   
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 21, 1995. 
 TRD-9503491 
  Alicia M. Fechtel 
 General Counsel and Chief Clerk 
 Texas Department of Insurance 
    Effective date: June 1, 1995 
 Proposal publication date: February 17, 1995 
 For further information, please call: (512) 463-6327