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 1. ADMINISTRATION 
 Part V. General Services Commission 
  Chapter 111. Executive Administration Division 
  
  Historically Underutilized Business Certification Program 
 
  1 TAC sec.sec.111.11-111.19 
 
  The General Services Commission adopts the repeal of sec. sec.111.11-111.19, 
concerning the Historically Underutilized Business Certification Program, 
without changes to the proposed repeal as published in the March 14, 1995, issue 
of the Texas Register (20 TexReg 1805). 
 The sections are repealed to be replaced with new sec. sec.111.11 to 111.23. 
 The repealed sections are replaced by new sections 111.11 to 111.23 which 
reorganize and clarify the rules and allow for improved recordkeeping with the 
Disparity Study. 
 No comments were received regarding adoption of the repeals. 
 The repeals are adopted under the authority of Texas Civil Statutes, Article 
601b, which provide the General Services Commission with the authority to 
promulgate rules necessary to accomplish the purpose of the Article. 
 
  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 September 12, 1995. 
 TRD-9511711 
  David Ross Brown 
 Assistant General Counsel 
 General Services Commission 
    Effective date: October 4, 1995 
 Proposal publication date: March 14, 1995 
 For further information, please call: (512) 463-3960 
         
       
  1 TAC sec.sec.111.11-111.23 
 
  The General Services Commission adopts new sec.sec.111.11-111.23, concerning 
utilization of historically underutilized businesses ("HUBs"), based upon the 
results of the Texas Disparity Study. The Commission also repeals current 
sec.sec.111.11-111.19. Sections 111.12-111.16, 111.22, and 111.23 are adopted 
with changes to the proposed text as published in the March 14, 1995, issue of 
the Texas Register (20 TexReg 1805). Sections 111.17-111.21 are adopted without 
changes and will not be republished. 
 The new sections establish guidelines that may be used by governmental bodies 
in managing their contracting goals for historically underutilized businesses 
(HUBs). 
 In sec.111.11, Policy and Purpose, the first sentence has been revised to read 
as follows: "It is the policy of the commission to encourage the use of 
historically underutilized businesses by state agencies and to assist agencies 
to achieve these goals through race, ethnic, and gender neutral means." The 
change deletes language concerning the use of race and gender conscious remedial 
actions and clarifies the scope of the policy. 
 The definition of "Historically Underutilized Business." in sec.111.12, 
Definitions, has been amended to reorganize the subsections. The first sentence 
now reads: "A business outlined in subparagraph (C), (D), (E), (F), (G) and (H) 
in which the owner(s):". New subparagraph (A) was the second half of the 
sentence in former subparagraph (C). The first sentence in new subparagraph (B) 
was the second half of the sentence in former subparagraph (A) . New clauses 
(i)-(v) were part of former subparagraph (A). The definition of "American women" 
that appears in subparagraph (B)(iii) has been amended to add the words, "except 
those specified in clauses (i), (ii) (iv) and (v)." New subparagraph (C) now 
reads: "a corporation formed for the purpose of making a profit in which at 
least 51% of all classes of the shares of stock or other equitable securities 
are owned by one or more persons described by subparagraphs (A) and (B); or." 
New subparagraph (D) was formerly subparagraph (B) and has been modified to 
insert the words "and (B)" between the words "(A) " and "of this section," and 
to add the word "or" following the semicolon. New subparagraph (E) was formerly 
subparagraph (C) which was amended to replace the word "subparagraph" with the 
word "subparagraphs," to insert the word "and (B)" between the words "(A)" and 
"of this section," and to strike the words following the semicolon which have 
been moved to new subparagraph (A). New subparagraph (F) was formerly 
subparagraph (D) and new subparagraph (G) was formerly subparagraph (E). New 
subparagraph (H) is added and reads as follows: "a business other than described 
in subparagraphs (D), (F), and (G) of this section, which formed for the purpose 
of making a profit and is otherwise a legally recognized business organization 
under the laws of the State of Texas, provided that at least 51% of the assets 
and interest and 51% of any classes of stock and equitable securities are owned 
by one or more persons described by subparagraphs (A) and (B) of this section." 
The amendment reorganizes the text of the former rule, adds new subparagraph (H) 
in order to clarify the factors used in defining HUBs and excludes minorities 
from the description of "American women-owned businesses." These changes clarify 
the subsection and allow for improved recordkeeping consistent with the 
Disparity Study. Also in sec.111.12, the definition of "term contract" has been 
amended to add the words, "as defined in sec.113.2 of this title." The change 
reconciles this definition with agency practices. 
 In the first sentence of sec.111.13, subsection (a), the words, "increasing the 
level of HUB participation" have been replaced with the words, "encouraging the 
use of HUBs." A final sentence is added which reads: "Each agency may achieve 
the annual program goals by contracting directly with HUBs or indirectly through 
subcontracting opportunities." The amendments are made to clarify the subsection 
and to emphasize that contracting with a HUB at either the prime or 
subcontractor levels is permissive. 
 Section 111.13, subsection (b) is amended to read: "Each state agency shall 
make a good faith effort to assist HUBs in receiving a portion of the total 
contract value of all contracts that the agency expect to award in a fiscal year 
in accordance with the following percentages: (1) 11.9% for heavy construction 
other than building contracts; (2) 26.1% for all other building construction, 
including general contractors and operative builders contracts; (3) 57.2% for 
all special trade construction contracts; (4) 20% for professional services 
contracts; (5) 33% for all other services contracts; and (6) 12.6% for 
commodities contracts." The amendments substitute the term "good faith effort" 
for the term "best efforts" and delete the words "not less than" from the stated 
overall contracting goals for each category of contract, thus clearly denoting 
the stated percentages as goals rather than "set-asides". The category 
construction has been subdivided into three construction (sub) categories 
consistent with the relevant Standard Industrial Code(s) (SIC) reported in the 
Disparity Study. The numerical goal for each category or (sub) category has been 
amended to reflect total actual availability of HUBs as a percent of dollars as 
reported in Table 3.12 or Appendix H of the Disparity Study. The revisions also 
emphasize that the goals are applicable to the sum total of an agency's 
contracts on an annual basis. 
 Former sec.111.13, subsection (c), has been deleted and replaced with former 
subsections (d) and (e) as amended. The subsection as amended reads: " Each 
agency shall make a good faith effort to meet or exceed the goals outlined in 
sec.111.13(b). The percentage goals established in subsection (b) are overall 
annual program goals for each state agency applicable to the total annual dollar 
amount of an agency's contracts for each of the specific types of contracts. It 
may not be practicable to apply these goals to each contract. For each contract, 
state agencies may set higher or lower program goals than those outlined in 
subsection (b). Agencies may consider HUB availability, HUB utilization, 
geographical location of the project, the contractual scope of work or other 
relevant factors. By implementing the following procedures, an agency shall be 
presumed to have made a good faith effort: (1) prepare and distribute 
information on procurement procedures in a manner that encourages participation 
in state contracts by all businesses; (2) divide proposed requisitions into 
reasonable lots in keeping with industry standards and competitive bid 
requirements; (3) assess bond and insurance requirements and design such 
requirements to reasonably permit more than one business to perform the work; 
(4) specify reasonable, realistic delivery schedules consistent with an agency's 
actual requirements; (5) ensure that specifications, terms, and conditions 
reflect an agency's actual requirements, are clearly stated and do not impose 
unreasonable or unnecessary contract requirements; (6) provide contractors with 
referenced list of certified HUBs for subcontracting; (7) determine whether 
specific agency-wide goals are appropriate under the Disparity Study because 
some HUB groups have not been underutilized within applicable contracting 
categories and should not be included in the HUB goals for that category." These 
amendments delete references to former subsection (c) which identified specific 
racial and gender goals for each contract category, consolidate related 
provisions and clarify the subsection. Paragraph (7), in particular, clarifies 
the responsibilities of state agencies to review and revise agency-wide racial 
and gender goals for each contracting category to conform with the Disparity 
Study. 
 Former sec.111.13, subsection (f), now subsection (d), is amended to read: "A 
state agency may also demonstrate good faith under this section by including a 
supplemental letter with documentation as prescribed by the commission: (1) 
identifying the percentage of contracts awarded to women and/or minority-owned 
businesses that are not certified as HUBs; (2) demonstrating that a different 
goal from that identified in sec.111.13(b) was appropriate given the agency's 
mix of purchases; (3) demonstrating that a different goal was appropriate given 
the particular qualifications required by an agency for its contracts; or (4) 
demonstrating that a different goal was appropriate given that graduated HUBs 
cannot be counted toward the goal." The changes affirm state agency flexibility 
in satisfying the good faith standard. 
 Section 111.14, subsection (a) has been amended to add the following language 
as the first sentence: "Each agency's bid and contract documents for 
construction, professional services, other services and commodities exceeding 
$100,000 shall include HUB subcontracting good faith effort guidelines and goals 
as established in sec.111.13." The amendment establishes a $100,000 threshold 
for the application of the good faith effort guidelines specified in sec.111.14 
to subcontracts. The former second and now third sentence of subsection (a) has 
been revised to replace the words "in house" with the words, "with its employees 
as defined by the Internal Revenue Service. A new fourth sentence has been added 
which reads: "The HUB prime contractor may subcontract the remaining 75% of the 
contract with HUB or non-HUB subcontractors." The fifth and sixth sentences of 
subsection (a) as revised replace the words "in house" with the words "with its 
employees." The latter amendments clarify current restrictions on pass-through 
and brokering contracting arrangements so that a HUB may not assign more than 
75% of the contract work to non-employees and be credited as a prime contractor. 
The section also clarifies that a HUB prime has the option of subcontracting up 
to 75% of the contract work to HUB or non-HUB subcontractors. 
 In sec.111.14, subsection (b), the second sentence has been replaced with the 
following language: "The contractor shall submit a copy of the notice described 
in subsection (c)(2) below with its offer, and shall submit a statement within 
seven working days following its offer that specifies the expected percentage of 
work, if any, to be subcontracted." The change streamlines the language of the 
proposed rule, indicates a timeframe for contractor outreach efforts and 
clarifies that subcontracting is permissive. 
 In sec.111.14, the first sentence of subsection (c) and subsection (c), 
paragraphs (2) and (4) have been modified. The first sentence of subsection (c) 
now reads: "By implementing the following procedures, a contractor shall be 
presumed to have made a good faith effort:" In subsection (c), paragraph (1), 
the words "the smallest feasible parts" have been replaced with the words, 
"reasonable lots." The second sentence in paragraph (2) of subsection (c) has 
been amended to read: "The notice shall include a description of the 
subcontracting opportunities and identify the location to review contract 
specifications." The third sentence in paragraph (2) of subsection (c) has been 
amended to read: "The notice shall be provided to potential subcontractors prior 
to submission of the contractor's bid." In paragraph (3) of subsection (c), the 
words "in the area in which the work will be performed" have been added to the 
first sentence and the second and third sentences have been deleted. In 
paragraph (4) of subsection (c), the words "but not selected" have been inserted 
between the words "bid," and "the contractor" and the words "explain not hiring 
a HUB subcontractor" have been replaced with the words "document the selection 
process." In paragraph (5), the words "at the times (and) reporting" have been 
replaced with the word "report." The changes streamline and clarify the 
language. The change in paragraph (2) deletes the requirement that primes 
transmit a complete copy of all specifications as this could be unduly 
burdensome. 
 Revised sec.111.14, subsection (d) now reads: "If the commission's directory 
does not include at least five businesses, the contractor shall send the notice 
to HUBs on lists of minority and women-owned businesses maintained by other 
government agencies or organizations. If a contractor uses a source other than 
the commission's directory, the selected HUB subcontractor must become certified 
by the commission in accordance with the procedures set forth in sec.111.17 of 
this title." The new language encourages contractors to look outside of the 
commission's HUB directory when the directory does not include at least five HUB 
businesses within the applicable profession or trade, but also requires that any 
HUB contractor selected from outside the commission's directory become certified 
before the agency may receive good faith credit. 
 Section 111.14, subsection (e) contains the language of former subsection (d) 
as amended. Subsection (e) now reads: "An agency shall ensure that a contractor 
has complied with this sec.111.14 as a condition of awarding any contract." The 
modifications clarify that it is the responsibility of the state agency to 
confirm that a contractor has conducted the outreach efforts described in 
sec.111.14 before making a formal contract award. 
 Section 111.14, subsection (f) contains the language of former subsection (e) 
as amended. In the first sentence in subsection (f) as revised the word 
"minimum" has been deleted and the words, "after the award date of the contract" 
have been replaced with the words "following selection, but prior to the award 
of the contract." The second sentence of former subsection (e) has been deleted. 
Subsection (f) includes revisions to paragraphs (1), (2),(3),(4), (5), (6), and 
(7) of former subsection (e). Former paragraph (8) has been deleted and former 
paragraph (9) has become subsection (g). Former paragraphs (1) and (2) have been 
combined as revised paragraph (1). Paragraph (1) now reads: "Whether the 
contractor provided written notices to at least five qualified HUBs or the 
contractor advertised in general circulation, trade association, and/or 
minority/women focus media concerning subcontracting opportunities." Paragraph 
(2) contains the language of former paragraph (3) as amended. Specifically, the 
words, "a reasonable number of" were replaced with the words "at least five 
qualified HUBs" in paragraph (2) as amended. In paragraph (3), the language of 
former paragraph (4) has been inserted, the words "smallest feasible" have been 
replaced with the word "reasonable" and the words "in order to increase HUB 
participation" have been replaced with the words "in accordance with standard 
industry practices." Revised paragraph (4) contains the language of former 
paragraph (5), revised to add the words "or met with the rejected HUB to discuss 
the rejection" to the end of the first sentence and to delete the second 
sentence. Revised paragraph (5) contains the language of former paragraph (6) as 
amended and reads; "Whether the contractor provided qualified HUBs with adequate 
information about bonding, insurance, the plans, the specifications, scope of 
work and requirements of the contract. " Revised paragraph (6) contains the 
language of former paragraph (7) as amended and reads: "Whether the contractor 
negotiated in good faith with qualified HUBs, not rejecting qualified HUBs who 
are also the lowest responsive bidder." The revisions streamline and clarify 
contractor obligations with regard to subcontracting and remove provisions 
deemed unduly burdensome. 
 Revised sec.111.14, subsection (g) contains the amended language of former 
subsection (f), paragraph (9). Subsection (g) now reads: "Contractors are 
encouraged to use the services of available minority and women community 
organizations, contractor groups, local, state and federal business assistance 
offices, and other organizations that provide support services to HUBs." 
 Revised sec.111.14, subsection (h) contains the language of former subsection 
(f) as amended. In the second sentence of revised subsection (h), the words 
"include but not limited to the following:" have been replaced with the words, 
"state the reasons for the deficiency," and paragraphs (1) and (2) have been 
deleted. The revisions clarify the responsibilities of state agencies to notify 
contractors regarding the sufficiency of the contractor's asserted good faith 
effort(s). 
 Section 111.15, subsection (a) has been replaced with the following language: 
"Agencies are required to prepare a written plan for the use of HUBs in 
purchasing and in public works contracts in accordance with Texas Government 
Code, Chapter 2056 and Article 601b, sec.1.03(l)." The revisions clarify the 
responsibility of state agencies to prepare written plans for the use of HUBs in 
accordance with law. 
 In sec.111.16, subsection (c), the words "and suppliers" have been deleted from 
the first sentence. The words "and equipment" and have been added to the end of 
the second sentence. The words, "On a quarterly basis," have been added at the 
beginning of the third sentence. The words "or suppliers" have been deleted from 
the third sentence and in the fourth sentence, the words "or suppliers" have 
been deleted between the words "contractor" and "should". The changes conform 
the terminology used in this section with that used elsewhere in the title and 
clarify that contractors are subject to quarterly reporting requirements. 
 In sec.111.16, subsection (f), the text of subparagraphs (A)-(E) of paragraph 
(3) have been added to paragraph (2) and former paragraph (3) has been deleted. 
Paragraph (2) now reads: " the total number of HUBs receiving payments from each 
state agency and actually paid by each state agency to the following groups as 
defined in sec.111.12 of this title and certified by the commission: (A) Black 
Americans; (B) Hispanic Americans: (C) American Women; (D) Asian Pacific 
Americans and (E) Native Americans." The change clarifies the language in a 
manner consistent with sec.111.12. 
 In sec.111.22, subsection (a), the second sentence has been revised to read: 
"The commission shall update the directory semiannually and make the directory 
available to state agencies, local governments and the public on a cost recovery 
basis." The changes better reflect the groups to which the Commission makes the 
directory available. The third sentence in subsection (a) has been amended to 
substitute the words " in hard copy, on floppy diskette, or on magnetic tape" 
for the words "or in another format." The change specifies the alternative 
formats of the directory which the Commission shall make available. Subsection 
(b) of sec.111.22 has been deleted because the substance has been incorporated 
in subsection (a). 
 In sec.111.23, subsection (a), the first sentence has been revised to read: "A 
HUB shall be graduated from being used to fulfill HUB procurement utilization 
goals when it has maintained gross receipts or total employment levels for four 
consecutive years which exceed 75% of the following schedule which is extracted 
from the U.S. Small Business Administration's size standard for firms within 
similar primary four-digit Standard Industrial Classification codes, as stated 
in 13 Code of Federal Regulations, 121.601:" In addition, new paragraphs (1)-(8) 
were added to establish graduation ceilings for each contract category 
referenced in sec.111.12 and sec.111.13. New paragraphs (1)-(8) read: "(1) for 
heavy construction other than is building construction, $17, 0000,000; (2) for 
building construction, including general contractors and operative builders, 
$17,000,000; (3) for special trade construction, $7,000, 000; (4) for medical, 
financial and accounting services, $3,500,000; (5) for architectural/engineering 
and surveying services, $3,500,000; (6) for other services including legal 
services, $3,500,000; (7) for commodities wholesale, 100 full-time equivalent 
employees; (8) for commodities manufacturers, 500 full-time equivalent 
employees." 
 The new sections describe the basic components of the State's HUB contracting 
program consistent with the provisions of House Bill 2626, Acts, 73rd 
Legislature and Chapter, 1051, Article V, sec.101, and Chapter 684, sec.65(c), 
Acts, 73rd Legislature, Regular Session (1993) and the State of Texas Disparity 
Study. Proposed sec.111.11 states the commission's adopted policy; (2) 
sec.111.12 defines terms; (3) sec.111.13 establishes statewide remedial HUB 
utilization goals based upon the disparities identified in the study for 
potential availability of HUBs overall in each contract category and for 
separate HUB groups in each contract category; (4) sec.111.14 prescribes 
requirements for the application of the utilization goals to subcontracts; (5) 
sec.111.15 states agencies' strategic planing responsibilities; (6) sec.sec.111. 
17-111.22 restate the commission's current HUB certification program 
requirements, including audits, revocations, and protest procedures, and race, 
ethnic, and gender neutral assistance efforts for HUBs; (7) sec.111.23 provides 
a graduation requirement for HUBs which maintain certain levels of gross 
receipts or employment for two consecutive years. 
 Forty-four written comments were received from individuals, groups, 
associations, and governmental bodies in response to the proposed sections. Oral 
comments were received from 21 individuals, groups, associations, and 
governmental bodies during a public hearing held on April 24, 1995. The 
transcripts of that hearing are available upon request. The comments fell within 
ten general subject categories, as follows: 
 A. Definitions (sec.111.12)  A number of commenters questioned the use of the 
term "American Women" as falling outside the statute. Some commenters suggested 
that the definition of and criteria for women-owned businesses should include 
all women of any ethnicity. The alternative view is that the definition of women 
and women-owned businesses should exclude women or businesses that would also 
qualify for minority-based HUB status. Others noted an inconsistency in the 
definitions of women used in  sec.111.12 and sec.111.13. At least one commenter 
suggested that the definition of "term contract" be amended to correspond with 
the GSC's general usage. One commenter recommended that the definition of 
"professional services" be expanded to include the services available under 
Chapter 12, Health and Safety Code. 
 B. Proposed HUB Contracting and Procurement Goals ( sec.111.13 and sec.111. 14)  
Most of the comments concerned the proposed HUB contracting goals at the prime 
(111.13) and subcontracting (111.14) levels. A number of commenters described 
the proposed rules as promoting reverse discrimination, providing unwarranted 
preferential treatment, creating set asides or quota programs, or allowing 
businesses to be selected based on race, ethnicity, or gender regardless of the 
business' ability to provide a quality product or service at a competitive 
price. Some commenters urged that the creation of ethnic or gender-based 
contracting goals was not narrowly tailored to address a compelling state 
interest or to remedy discrimination. Others asserted that the HUB program was 
not "narrowly tailored" due to the failure to expressly state a sunset date. 
Some suggested that the established good faith effort goals should be based on 
actual availability rather than potential availability which was the standard 
proposed in the rules published on March 14, 1995. Others urged the adoption of 
goals based on potential availability and at least one commenter questioned 
whether potential availability had been underestimated. 
 A number of commenters questioned the appropriateness of the goals within 
certain of the four procurement categories used in the Disparity Study, arguing 
that the procurement categories were too broad or narrow, e.g. that certain 
object codes are improperly categorized or that geographical adjustments are 
necessary. Others questioned the appropriateness of continuing goals for certain 
minorities or women within those categories based on a perceived unavailability 
of qualified women or minorities for certain types of work, e.g. heavy 
construction. At least one commenter recommended that goals be discontinued for 
groups where an "overutilization" was documented in the Disparity Study, i.e, 
where the actual utilization rate exceeded 80% of the expected utilization rate 
(based on actual availability). 
 A number of commenters recommended technical amendments to sec.111.13 and 
sec.111.14 to remove one or more of the following phrases: "best efforts," "to 
award," and "shall be allocated," as each phrase reportedly suggested an illegal 
"set-aside." 
 C. Other Annual Procurement Utilization Goals Issues ( sec.111.13) A number of 
commenters were opposed to the adoption of former sec.111.13 (f), now 
sec.111.13(d), which would allow state agencies to demonstrate a good faith 
contracting effort by producing evidence of contracting with non-certified HUBs. 
At least one commenter opined that the section would remove the teeth from the 
certification program and invite abuse by businesses that cannot meet the 
criteria of being owned by ethnic or gender groups who own at least 51% of the 
business and demonstrate active participation or control. 
 D. Other Subcontracting Issues (sec.111.14) Some commenters stated that 
subcontracting opportunities may not be applicable to all awarded contracts, and 
contractors should only be required to meet overall HUB procurement goals. 
Others opined that requiring contractors to solicit five businesses in each of 
the possible race and gender categories would be an unfair burden or that 
compliance with the good faith subcontracting checklist would be too time 
consuming. The commission received one comment suggesting there should be no 
evaluation of good faith effort in negotiations between contractors and 
subcontractors and there should be no meetings to discuss rejections of 
subcontractors. This commenter was concerned that meetings held to discuss 
rejections of subcontractors may lead to price shopping abuses. Another 
commenter recommended that the expenditure of tax dollars on subcontracts, if 
not prime contracts, should grant preference only to Texas resident HUBs. 
 One commenter recommended that responsibility for publishing or transmitting 
notices of available subcontracting opportunities in a manner designed to reach 
qualified HUBs, should be shifted to state agencies under sec.111.14 or 
sec.111.15. In the alternative, contractors should have electronic access to the 
HUB directory so that they will have more current information. 
 commenters recommended technical amendments to subsections (c)(1) and (e)(1) to 
read: "Shall divide the contract work into the smallest feasible parts in 
accordance with standard construction practices." It was also recommended that 
subsection (c)(2) be amended to require "adequate information about the plans" 
rather than "shall include a copy of the specifications." 
 E. Comments on Agency Planning Responsibilities (sec.111.15)  One commenter 
recommended that proposed subsections (a) and (b) be deleted and replaced to 
read: " The provisions of this act (sic) shall not apply to any state agency 
that has a program approved by a branch of the federal government, or specific 
statutory authority to have a HUB or DBE program." 
 F. State Agency Reporting Requirements (sec.111.16) A number of commenters 
recommended that contractors and suppliers be required to report information 
related to HUB utilization no more frequently than quarterly, consistent with 
other reporting responsibilities. Another commenter recommended that a reporting 
matrix be developed that would allow for crediting of minority participation 
within a firm which is not minority or women-owned within the definition of the 
statute. According to the commenter, this arrangement would better track the 
utilization of state tax dollars. At least one commenter opined that subsection 
(c), which requires contractors to document all subcontract payments with copies 
of invoices, is excessive. 
 G. Certification Process (sec.111.17) A number of commenters recommended that 
subsection (b) be amended to exempt financial records and client lists from the 
documentation that must be provided to the commission for purposes of 
certification. The stated reason for the recommendation was to prevent required 
disclosure under the Open Records Act. One commenter recommended adding the 
following language to subsection (b): "If the articles of incorporation or a 
stock ownership agreement adequately serve to demonstrate that a business 
qualifies for HUB certification, then financial reports need not be submitted. 
The certifying agency may privately review financial records, but shall not make 
them part of the public record." 
 H. HUB Certification Directory (sec.111.22) Two commenters requested that 
contractors be given the ability to access the HUB Directory electronically. 
Another commenter noted that, under the proposed rules, HUB vendors who do not 
pay the fee to be listed on the central bid list (CMBL) will continue to be 
listed as certified, but information on the class and items for the commodities 
or services they provide will no longer appear as part of the computer file. 
According to the commenter, requiring HUBs to pay the CMBL fee operates to 
deprive state agencies of the best information on available HUBs. The commenter 
suggested that the rules or systems be modified to provide electronic access to 
available HUBs by class and item. 
 I. Graduation Requirements (sec.111.23) One commenter who supported the 
graduation requirement additionally recommended that sec.111.13 be amended to 
allow adjustments in HUB goals to reflect changes in actual availability brought 
about by graduation. Some commenters urged that professional organizations 
should establish the measures used to graduate businesses from the HUB program. 
It was also recommended that the proposed period for graduation from the state's 
program be extended from two to three years to correspond with the provisions of 
13 Code of Federal Regulations 121.60. 
 K. Additional Costs to Contractors and Agencies  (1) Costs to Contractors: 
Several commenters stated that the proposed rules will unduly delay the 
procurement process and will result in increased costs for contractors and the 
state. (2) Costs to Agencies: Some commenters suggested that the HUB 
subcontracting program will increase bid processing time and administrative 
staff for program tracking and compliance functions. Others commented that 
setting a $100,000 threshold would minimize direct and indirect costs. 
 For: The L.B.J. School of Public Affairs at the University of Texas, Texas 
Rehabilitation Commission, Minority Contractors Alliance of Texas, J. J. Nita 
Burgoon Company, Coastal Record Service, Inc., Micromal Computer Consulting, 
NAACP-Austin Branch, Carter Design Associates, Texas Coalition of Black 
Democrate/Texas, TAMAC, Austin Minority and Women Alliance, and African American 
Chambers of Commerce. 
 Against: Parkhill, Smith & Cooper Inc., Datum Engineering Incorporated, Texas 
Department of Criminal Justice, Texas Department of Transportation, Texas 
Department of Health, Texas Lottery Commission, Texas Society of Professional 
Engineering, the Associated General Contractors of America-Texas Building 
Branch, Consulting Engineers Council, Fulton Construction Corporation/Coastcon 
Corporation, Diamond Roofing & Construction, Gary Donaldson Architecture, Hunter 
Industries, Inc., BLGY, Dan Williams Company, J. L. Steel, Inc. AS 
Rehabilitation Commission, the University of Texas System, Texas Department of 
Agriculture, Texas Society of Architects, River City Materials Inc., Texas 
Department of Human Services, Texas Employment Commission, H.A. Lott, Inc. 
 A. Definitions (sec.111.12)  The Commission has amended the definitions of 
"American Women," "Historically Underutilized Businesses" and "Term Contract" in 
accordance with comments received. Section 111.12(A)(iii) is amended to read: 
"American Women-which includes women of any ethnicity except those specified in 
clauses (i), (ii), (iv), and (v)." A related change was made in sec.111.16, 
subsection (f) as previously described. 
 B. HUB Contracting and Procurement Goals (sec.111.13 and sec.111.14) The 
commission disagrees that the rules provide a quota system or otherwise 
guarantee business contracts based on ethnicity or gender. The proposed rules 
are designed to insure that the State of Texas makes a good faith effort to 
include HUBs in all contracting opportunities. At no time are the numerical 
goals represented as mandatory or a "set-aside." Instead, "good faith efforts" 
are described in sec.111.13 and sec.111.14 as an outreach process. 
 The commission agrees that HUB goals should be based upon actual availability 
of HUBs within the relevant industry and geographical area. The Legislature 
directed the commission to promulgate rules as necessary to implement the 
findings, conclusions and recommendations contained in the Disparity Study that 
was commissioned by the Comptroller of Public Accounts and developed by the 
National Economic Research Association (NERA) in consultation with the L.B.J. 
School of Public Affairs at the University of Texas. The Disparity Study, in 
turn, provides information that would permit the adoption of goals based on 
either actual or potential availability. Actual and potential HUB availability 
data is also reported in the Disparity Study as a percentage of vendors or as a 
percentage of contract dollars. Accordingly, the commission has revised 
sec.111.13, subsection (b) to establish three separate contracting goals for the 
construction industries and separate goals for professional services, other 
services and commodities. The goals are based on actual HUB availability as a 
percentage of contract dollars as reported in Table 3.12 and Appendix H of the 
Disparity Study. Section 111.13, subsection (c) as amended expressly allows 
state agencies to set higher or lower program goals than those outlined in 
subsection (b) based on HUB availability, geographical considerations, the 
contractual scope of work or other relevant factors. 
 The commission agrees with comments recommending that different or additional 
procurement categories should be established. Section 111.13 as revised, 
establishes three (sub)categories for construction contracts. i.e., heavy 
construction unrelated to building construction, building construction, and 
specialty trades consistent with the discreet SIC codes for each referenced in 
Appendix H of the Disparity Study. The (sub)categories for construction 
contracts showed wide variations in HUB availability so the goals for each 
subcategory have been amended accordingly. 
 The commission disagrees that utilization goals should be deleted for women 
within some or all of the construction contract categories and for Asians and 
Native Americans in the professional services contract category based upon the 
comments received and further consideration of the findings in the Disparity 
Study. The commission has, instead, established overall HUB goals and deleted 
former sec.111.13, subsection (c) which provided specific racial and gender-
based goals for each contractual category. In the commission's view, it would be 
unfair to remove women, Asians and Native Americans from contractual categories 
based on data that was collected primarily in 1987 and to a lesser extent, in 
1990. Thus, the goals provided within these rules may fairly be regarded as 
interim. 
 C. Other Annual Procurement Utilization Goals Issues ( sec.111.13) The 
commission has amended sec.111.13, subsection (f), now sec.111.13, subsection 
(d) , to address both the concerns of state agencies that contract in good faith 
with non-certified women and minority-owned businesses and the concerns of those 
who fear abuse by businesses that may not qualify for HUB certification. As 
amended, the section will allow state agencies to submit a supplemental letter 
and other documentation prescribed by the commission, as evidence of good faith 
efforts. Amendments also clearly indicate, however, that agencies may not use 
decertified and graduated HUBs to satisfy the good faith efforts standard. 
 D. Other Subcontracting Issues (sec.111.14) The commission agrees that 
requiring contractors to solicit five businesses in each of the possible 
categories could be burdensome and that subcontracting opportunities may not be 
applicable to all awarded contracts. The rules require solicitation from a total 
of five HUBs for contracting opportunities (one from each category or any 
combination). The commission also has amended sec.111.14(a) which allows for 
contractors to be evaluated for making a good faith effort in accordance with 
the goals set forth in sec.111.13(b). The commission disagrees with the request 
that negotiations between contractors and subcontractors be exempted from 
evaluation of good faith efforts and any requirement of explaining the 
subcontracting selection. State agencies should consider not only the different 
kinds of efforts the contractor has made, but also the quantity and intensity of 
those efforts. For the use of the checklist, good faith means not rejecting HUBs 
who qualify as the lowest, responsive bidder. 
 E. Comments on Agency Planning Responsibilities (sec.111.15)  The commission 
does not agree that agencies which are subject to federal DBE guidelines or 
alternative statutory HUB programs should be exempted from the application of 
the rules when engaged in contracting or procurements that are subject to 
Article 601b. Moreover, the intent of the Legislature as expressed in Chapter 
684, Acts 73rd Legislature, Regular Session, sec.65(c), (1993), was that the 
General Services Commission would promulgate rules necessary to implement the 
findings, conclusions and recommendations of the Disparity Study mandated by 
that Act. 
 F. State Agency Reporting Requirements (sec.111.16) The commission agrees that 
contractors and suppliers should be required to report information related to 
HUB utilization on a quarterly basis and has amended sec.111.16(c) accordingly. 
The commission disagrees that agencies should be credited with the award of a 
contract to a HUB prime or subcontractor based on a percentage of minorities or 
women who are employed by the contractor, but do not possess the requisite level 
of ownership and management. By statute, the HUB goals must be applied to women 
or minority-owned businesses only. 
 G. Certification Process (sec.111.17) The commission responds that its ability 
to withhold documentation that is collected and used to determine HUB 
certification eligibility is governed by provisions of the Open Records Act, 
Chapter 552, Government Code. It should also be noted that certain documents 
collected by the commission for certification reviews, such as tax returns, are 
confidential by law and thus, not subject to mandatory disclosure under the Open 
Records Act. 
 H. HUB Certification Directory (sec.111.22) The commission has amended  
sec.111.22, subsection (a), to better reflect the groups to which the commission 
makes the directory available and to substitute the words " in hard copy, on 
floppy diskette, or on magnetic tape" for the words "or in another format." The 
latter change specifies the alternative formats of the directory which are 
available. The commission's electronic database is currently available in hard 
copy, on diskette, on tape, or through the Department of Commerce Marketplace 
electronic bulletin board. In addition, the commission's automation team is in 
the process of creating and activating direct access to its information server. 
Agencies will also be required to include a list of HUBs with the bid 
information packet. The commission disagrees that the failure to waive the 
Centralized Master Bidders List fee for HUBs operates to deprive state agencies 
of information related to the services or commodities HUBs provide. The CMBL fee 
is a standard cost of doing business for and is uniformly applied to both HUB 
and non-HUB vendors. State agencies can also retrieve product descriptions for 
codes for commodities and services by using vendor names or vendor 
identification numbers. 
 I. Graduation Requirements (sec.111.23) The commission agrees that it may be 
unfair to graduate HUBs based on their financial performance during a two-year 
period, but disagrees that the period should be coextensive with federal rules 
governing the Texas Department of Transportation's minority contracting 
programs. The commission's certification and central Bid List are both two-year 
renewal cycles; A four-year period will allow completion of two HUB program 
cycles and be more cost efficient than the recommended three-year graduation 
period. The Commission has also adopted specific graduation ceilings for each of 
the contract categories referenced in sec.111.12 and sec.111.13. The new 
ceilings were culled from federal standards and reduced by 25% to ensure broader 
distribution of business among eligible HUBs. 
 K. Additional Costs to Contractors and Agencies  (1) To Contractors: At this 
time it is not possible to estimate the potential fiscal impact to contractors. 
The commission's experience shows no evidence of related price increases in 
construction, term contracts, open markets, or professional services (bids or 
proposals) since the implementation of the HUB program in Fiscal Year 1994. (2) 
To Agencies: At this time it is not possible to estimate the potential fiscal 
impact to all agencies resulting from the adoption of these rules. During Fiscal 
Year 1994 and Fiscal Year 1995, GSC experienced a $20,000 annual fiscal impact 
for administering the HUB program, but no new or additional fiscal impact for 
staffing is anticipated for the period Fiscal Years 1996-2000. GSC estimates 
that the graduation program will result in expenses for automation resources, 
equipment and other operating functions in the amount of $113,776 for Fiscal 
Years 1996-2000. The Commission has adopted the $100,000 subcontracting 
threshold as recommended by several state agencies to ameliorate the potential 
impact. 
 The new rules are adopted under the authority of Chapter 684, sec.65(c), Acts 
73rd Legislature, Regular Session (1993), which provides the General Services 
Commission with the authority to promulgate rules necessary to implement the 
findings. 
 
 
  sec.111.12. Definitions.  The following words and terms, when used in this 
subchapter, shall have the following meanings, unless the context clearly 
indicates otherwise. 
   
     Applicant-A corporation, sole-proprietorship, partnership, joint venture, 
or supplier that applies to the commission as an historically underutilized 
business. 
   
     Application-A written request for certification as an historically 
underutilized business in the required format submitted to the commission. 
   
     Commodities-Materials, supplies, or equipment. 
   
     Comptroller-Comptroller of Public Accounts. 
   
     Contractor-A supplier of commodities or services to a state agency under a 
purchase order contract or other contract. 
   
     Directory-The Texas Certified Historically Underutilized Business 
Directory. 
   
     Disparity Study -The State of Texas Disparity Study, performed by the 
National Economic Research Associates, Inc. ("NERA"). 
   
     Historically Underutilized Business-A business outlined in subparagraph 
(C), (D), (E), (F), (G) and (H) in which the owner(s): 
 
  (A) have a proportionate interest and demonstrate active participation in the 
control, operation, and management of the entities' affairs; and 
   
  (B) have been socially disadvantaged because of their identification as 
members of the following groups: 
 
  (i) Black Americans-which includes persons having origins in any of the Black 
racial groups of Africa; 
   
  (ii) Hispanic Americans-which includes persons of Mexican, Puerto Rican, 
Cuban, Central or South American, or other Spanish or Portuguese culture or 
origin, regardless of race; 
   
  (iii)  AmericanWomen-which includes all women of any ethnicity except those 
specified in clauses (i), (ii), (iv), and (v) of this subparagraph; 
   
  (iv) Asian Pacific Americans -which includes persons whose origins are from 
Japan, China, Taiwan, Korea, Vietnam, Laos, Cambodia, the Philippines, Samoa, 
Guam, the U.S. Trust Territories of the Pacific, the Northern Marianas, and 
Subcontinent Asian Americans which includes persons whose origins are from 
India, Pakistan, Bangladesh, Sri Lanka, Bhutan or Nepal; and 
   
  (v)  Native Americans-which includes persons who are American Indians, 
Eskimos, Aleuts, or Native Hawaiians; and 
     
  (C) a corporation formed for the purpose of making a profit in which at least 
51% of all classes of the shares of stock or other equitable securities are 
owned by one or more persons described by subparagraphs (A) and (B); or 
   
  (D) a sole proprietorship created for the purpose of making a profit that is 
100% owned, operated, and controlled by a person described by subparagraphs (A) 
and (B) of this section; or 
   
  (E) a partnership formed for the purpose of making a profit in which 51% of 
the assets and interest in the partnership is owned by one or more persons who 
are described by subparagraphs (A) and (B) of this section; or 
   
  (F) a joint venture in which each entity in the joint venture is an 
historically underutilized business under this subdivision; or 
   
  (G) a supplier contract between an historically underutilized business under 
this subdivision and a prime contractor under which the historically 
underutilized business is directly involved in the manufacture or distribution 
of the supplies or materials or otherwise warehouses and ships the supplies. 
   
  (H) a business other than described in subparagraphs (D), (F), and (G) of this 
section, which is formed for the purpose of making a profit and is otherwise a 
legally recognized business organization under the laws of the State of Texas, 
provided that at least 51% of the assets and interest and 51% of any classes of 
stock and equitable securities are owned by one or more persons described by 
subparagraphs (A) and (B) of this section. 
     
     NERA-National Economic Research Associates, Inc. 
   
     Non-Treasury Funds -Funds paid by a state agency that are not treasury 
funds. 
   
     Other services -all services other than construction and professional 
services, including consulting services subject to Texas Government Code, 
Chapter 2254, Subchapter B. 
   
     Person-U.S. citizen, born or naturalized. 
   
     Professional services -Services of accountants, architects, engineers, land 
surveyors, and physicians that must be purchased by state agencies under Texas 
Government Code, Chapter 2254, Subchapter A. 
   
     Subcontractor-A supplier of commodities or services to a contractor. 
   
     Subcontractor Funds -Payments made to certified historically underutilized 
businesses by a contractor or supplier under contract with the state. 
   
     Term Contract-A contract establishing a source or sources of supply for a 
specified period of time as defined in sec.113.2 of this title (relating to 
Annual Procurement Utilization Goals). 
   
     Treasury Funds -Funds maintained in the state treasury and paid through the 
comptroller's office for each state agency. 
   
     USAS-Uniform Statewide Accounting System for the State of Texas. 
 
   
  sec.111.13. Annual Procurement Utilization Goals. 
 
  (a) In accordance with the commission's policy of encouraging the use of HUBs 
in state procurement, and based upon the findings of the Disparity Study, each 
state agency shall make a good faith effort to utilize HUBs in contracts for 
construction, services, including professional and consulting services, and 
commodities purchases. Each agency may achieve the annual program goals by 
contracting directly with HUBs or indirectly through subcontracting 
opportunities. 
   
  (b) Each state agency shall make a good faith effort to assist HUBs in 
receiving a portion of the total contract value of all contracts that the agency 
expects to award in a fiscal year in accordance with the following percentages. 
 
  (1) 11.9% for heavy construction other than building contracts; 
   
  (2) 26.1% for all other building construction, including general contractors 
and operative builders contracts; 
   
  (3) 57.2% for all special trade construction contracts; 
   
  (4) 20% for professional services contracts; 
   
  (5) 33% for all other services contracts; and 
   
  (6) 12.6% for commodities contracts. 
     
  (c) Each agency shall make a good faith effort to meet or exceed the goals 
outlined in subsection (b) of this section. The percentage goals established in 
subsection (b) are overall annual program goals for each state agency applicable 
to the total annual dollar amount of an agency's contracts for each of the 
specific types of contracts. It may not be practicable to apply these goals to 
each contract. For each contract, state agencies may set higher or lower program 
goals than those outlined in this subsection. Agencies may consider HUB 
availability, HUB utilization, geographical location of the project, the 
contractual scope of work or other relevant factors. By implementing the 
following procedures, an agency shall be presumed to have made a good faith 
effort: 
 
  (1) prepare and distribute information on procurement procedures in a manner 
that encourages participation in state contracts by all businesses; 
   
  (2) divide proposed requisitions into reasonable lots in keeping with industry 
standards and competitive bid requirements; 
   
  (3) assess bond and insurance requirements and design such requirements to 
reasonably permit more than one business to perform the work; 
   
  (4) specify reasonable, realistic delivery schedules consistent with an 
agency's actual requirements; 
   
  (5) ensure that specifications, terms, and conditions reflect an agency's 
actual requirements, are clearly stated and do not impose unreasonable or 
unnecessary contract requirements; 
   
  (6) provide contractors with referenced list of certified HUBs for 
subcontracting; 
   
  (7) determine whether specific agency-wide goals are appropriate under the 
Disparity Study because some HUB groups have not been underutilized within 
applicable contracting categories and should not be included in the HUB goals 
for that category. 
     
  (d) A state agency may also demonstrate good faith under this section by 
including a supplemental letter with documentation as prescribed by the 
commission: 
 
  (1) identifying the percentage of contracts awarded to women and/or minority-
owned businesses that are not certified as HUBs; 
   
  (2) demonstrating that a different goal from that identified in subsection (b) 
of this section was appropriate given the agency's mix of purchases; 
   
  (3) demonstrating that a different goal was appropriate given the particular 
qualifications required by an agency for its contracts; or 
   
  (4) demonstrating that a different goal was appropriate given that graduated 
HUBs cannot be counted toward the goal. 
 
       
  sec.111.14. Subcontracts. 
 
  (a) Each agency's bid and contract documents for construction, professional 
services, other services, and commodities exceeding $100,000 shall include HUB 
subcontracting good faith effort guidelines and goals as established in 
sec.111.13. Therefore, a contractor shall be required to make a good faith 
effort to award necessary subcontracts to HUBs in accordance with the goals set 
forth in sec.111.13(b) of this title (relating to Annual Procurement Utilization 
Goals). When the contractor is a HUB, it must satisfy the good faith effort 
requirements by performing at least 25% of the contract work with its employees 
as defined by the Internal Revenue Service. The HUB prime contractor may 
subcontract the remaining 75% of the contract with HUB or non-HUB 
subcontractors. Any contractor that seeks to satisfy the good faith effort 
requirement in this manner shall report quarterly to the contracting agency, in 
the form required by the agency, the volume of work performed under the contract 
and the portion of the work that was performed with its employees. If a HUB 
contractor performs less than 25% of the cumulative total contract with its 
employees, then for the next quarter, the contractor shall report its 
subcontractors as required by a non-HUB contractor. 
   
  (b) A state agency shall require a potential contractor to state whether it is 
a Texas certified HUB and whether one or more subcontractors will be used to 
perform the contract. The contractor shall submit a copy of the notice described 
in subsection (c)(2) below with its offer, and shall submit a statement within 
seven working days following its offer that specifies the expected percentage of 
work, if any, to be subcontracted. 
   
  (c) By implementing the following procedures, a contractor shall be presumed 
to have made a good faith effort: 
 
  (1) To the extent consistent with prudent industry practice, divide the 
contract work into reasonable lots. 
   
  (2) Notify HUBs of the work that the contractor intends to subcontract. The 
notice shall be in writing. The notice shall include a description of the 
subcontracting opportunities and identify the location to review contract 
specifications. The notice shall be provided to potential subcontractors prior 
to submission of the contractor's bid. 
   
  (3)  The contractor shall send the notice described in paragraph (2) of this 
subsection to at least five businesses in the current commission directory of 
certified HUBs that perform the type of work required in the area in which the 
work will be performed. 
   
  (4) If a non-HUB subcontractor is selected through means other than 
competitive bidding, or a HUB bid is the lowest price responsive bidder to a 
competitive bid, but not selected, the contractor will be required to document 
the selection process. 
   
  (5) The contractor shall maintain business records documenting its compliance 
with this sec.111.14 and shall make a compliance report to the contracting 
agency and report in the format required by the agency's contract documents, 
provided that reporting shall be required at least once for each calendar 
quarter during the term of the contract. 
   
  (6) If the contract is a state lease contract, the contractor or lessor shall 
comply with the requirements of this section from and after the occupancy date 
provided in the lease, or such other time as may be specified in the invitation 
for bid for the lease contract. 
     
  (d) If the commission's directory does not include at least five businesses, 
the contractor shall send the notice to HUBs on lists of minority and women-
owned businesses maintained by other government agencies or organizations. If a 
contractor uses a source other than the commission's directory, the selected HUB 
subcontractor must become certified by the commission in accordance with the 
procedures set forth in sec.111.17 of this title. 
   
  (e) An agency shall ensure that a contractor has complied with this section as 
a condition of awarding any contract. 
   
  (f) In making a determination that a good faith effort has been made, a state 
agency shall require the contractor to complete a checklist, and submit 
supporting documentation explaining in what ways the contractor has made a good 
faith effort according to each requirement, within 14 days following selection 
but prior to award of the contract. The checklist shall include at least the 
following: 
 
  (1) Whether the contractor provided written notices to at least five qualified 
HUBs or the contractor advertised in general circulation, trade association, 
and/or minority/women focus media concerning subcontracting opportunities. 
   
  (2) Whether the contractor provided written notice to at least five qualified 
HUBs allowing sufficient time for HUBs to participate effectively. 
   
  (3) Whether the contractor divided the contract work into the reasonable 
portions in accordance with standard industry practices. 
   
  (4) Whether the contractor documented reasons for rejection or met with the 
rejected HUB to discuss the rejection. 
   
  (5) Whether the contractor provided qualified HUBs with adequate information 
about bonding, insurance, the plans, the specifications, scope of work and 
requirements of the contract. 
   
  (6) Whether the contractor negotiated in good faith with qualified HUBs, not 
rejecting qualified HUBs who are also the lowest responsive bidder. 
     
  (g) Contractors are encouraged to use the services of available minority and 
women; community organizations contractor groups; local, state, and federal 
business assistance offices, and other organizations that provide support 
services to HUBs. 
   
  (h) State agencies shall review the checklist and attached documentation 
submitted by the contractor and issue a written notice of acceptance or 
deficiency of a good faith effort within 14 days of the agency's receipt. The 
notice of deficiency shall state the reasons for deficiency. 
 
     
  sec.111.15. Agency Planning Responsibilities. 
 
  (a) Agencies are required to prepare a written plan for the use of HUBs in 
purchasing, and in public works contracts in accordance with Texas Government 
Code, Chapter 2056 and Article 601b, sec.1.03(l). 
   
  (b) An agency may adopt the requirements of sec. sec.111.11-111.14 of this 
title (relating to Executive Administration Division) as part of its required 
strategic plan. 
 
     
  sec.111.16. State Agency Reporting Requirements. 
 
  (a) The comptroller will report to the commission not later than March 15 of 
each year regarding the previous six-month period, and on September 15 of each 
year regarding the preceding fiscal year, the payments made for the purchase of 
goods, services and public works awarded and actually paid from treasury funds 
by each state agency. Subject to the capabilities of the comptroller's USAS 
system, the comptroller shall identify state agencies' purchases from state term 
contracts which are paid from treasury funds so that those purchases awarded and 
actually paid under term contracts may be included in the commission's report of 
its own purchases. 
   
  (b) State agencies will report to the commission, not later than March 15 of 
each year regarding the previous six-month period and on September 15 of each 
year regarding the preceding fiscal year, the payments made for the purchase of 
goods and services awarded and actually paid from non-treasury funds by the 
state agency. The report shall include information requested by the commission 
and shall be in a form prescribed by the commission. State agencies' purchases 
from state term contracts which are paid from non-treasury funds must be 
identified on the report as such so that they may be reflected on the 
commission's report of its own purchases. 
   
  (c) State agencies will continuously maintain, and compile monthly, 
information relating to the agency's use, and the use by each operating division 
of the agency, of historically underutilized businesses, including information 
regarding subcontractors. This information shall include, but is not limited to 
the information required in subsections (a) and (b) of this section. On a 
quarterly basis, state agencies shall require a contractor to whom a state 
agency has awarded a contract to report to the agency the identity and the 
amount paid to each historically underutilized business to whom the contractor 
has awarded a subcontract for the purchase of supplies, materials, and 
equipment. Contractors should document progress payments made to subcontractors, 
professionals consultants or suppliers certified as historically underutilized 
businesses by submitting invoices to the paying state agency. 
   
  (d) State agencies will report to the commission, not later than March 15 of 
each year regarding the previous six-month period and on September 15 of each 
year regarding the preceding fiscal year, the total dollar amount of 
historically underutilized business subcontracting participation in all of the 
agencies' contracts for the purchase of goods, services and public works 
payments. State agencies must include subcontracting participation paid from 
Treasury and Non-Treasury funds. 
   
  (e) State agencies that participate in a group purchasing program under 
sec.3.01(a)(5) of the Act shall include a separate report to the commission, not 
later than March 15 of each year regarding the previous six-month period and 
September 15 of each year regarding the preceding fiscal year, of purchases that 
are made through the group purchasing program and shall report the dollar amount 
of each purchase that is allocated to the reporting agency. 
   
  (f) The commission shall prepare a consolidated report based on a compilation 
and analysis of the reports submitted by each state agency and information 
provided by the comptroller in the format specified by the commission. These 
reports of historically underutilized business purchasing and contracts shall 
form a record of each agency's purchases in which the agency selected the 
vendor. If the vendor was selected by the commission as part of its state term 
contract program, the purchase will be reflected on the commission's report of 
its own purchases. The commission report will contain the following information: 
 
  (1) the total dollar amount of payments made by each state agency; 
   
  (2) the total number of HUBs receiving payments from each state agency and 
actually paid by each state agency to the following groups as defined in 
sec.111.12 of this title (relating to Definitions) and certified by the 
commission; 
 
  (A) Black Americans; 
   
  (B) Hispanic Americans; 
   
  (C) American Women; 
   
  (D)  Asian Pacific Americans; and 
   
  (E) Native Americans. 
       
  (g) On April 15 of each year, the commission shall submit the consolidated 
report regarding the previous six-month period to the joint committee, 
referenced in House Bill 2626, sec.3, charged with monitoring the implementation 
of the historically underutilized business goals. The commission shall submit a 
consolidated report on October 15 of each year regarding the preceding fiscal 
year to the presiding officer of each house of the legislature, the members of 
the legislature and the joint select committee. 
 
     
  sec.111.22. Texas Historically Underutilized Business Certification Directory. 
The commission shall compile in the most cost-efficient format a directory of 
businesses certified as historically underutilized businesses. The commission 
shall update the directory semiannually and provide a copy to state agencies, 
local governments and the public on a cost recovery basis. The commission shall 
provide access to the directory either electronically or in hard copy, on floppy 
diskette, or on magnetic tape, depending on the needs of the each state agency. 
The commission and state agencies shall use the directory to solicit bids from 
certified HUBs for state purchasing and public works contracts. 
 
   
  sec.111.23. Graduation Procedures. 
 
  (a) A HUB shall be graduated from being used to fulfill HUB procurement 
utilization goals when it has maintained gross receipts or total employment 
levels for four consecutive years which exceed 75% of the following schedule 
which is extracted from the U.S. Small Business Administration's size standard 
for firms within similar primary four-digit Standard Industrial Classification 
codes as stated in 13 Code of Federal Regulations 121.601: 
 
  (1) for heavy construction other than is building construction, $17,0000,000; 
   
  (2)  for building construction, including general contractors and operative 
builders, $17,000,000; 
   
  (3) for special trade construction, $7,000,000; 
   
  (4) for medical, financial and accounting services, $3,500,000; 
   
  (5) for architectural/engineering and surveying services, $3,500,000; 
   
  (6) for other services including legal services, $3,500,000; 
   
  (7)  for commodities wholesale, 100 full-time equivalent employees; 
   
  (8)  for commodities manufacturers 500 full-time equivalent employees. 
     
  (b) Firms which have achieved the size standards identified in subsection (a) 
of this section will be assumed to have reached a competitive status in 
overcoming the effects of discrimination. The commission shall review as part of 
the certification or recertification process the financial revenue or relevant 
data of firms to determine whether the size standards identified in subsection 
(a) have been met. 
   
  (c) Businesses that have graduated from the HUB program in accordance with 
this section or have been decertified in accordance with sec.sec.111.17-111. 22 
of this title (relating to Executive Administration Division) may not be 
included in meeting agency goals. 
 
  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 September 12, 1995. 
 TRD-9511712 
  David Ross Brown 
 Assistant General Counsel 
 General Services Commission 
    Effective date: October 4, 1995 
 Proposal publication date: March 14, 1995 
 For further information, please call: (512) 463-3960 
         
                   
  TITLE 4. AGRICULTURE 
 Part I. Texas Department of Agriculture 
  Chapter 5. Quarantines 
  
  Pink Bollworm Quarantine 
 
  4 TAC sec.sec.5.171-5.179 
 
  The Texas Department of Agriculture (the department) adopts the repeal of 
sec.sec.5.171-5.179, concerning pink bollworm quarantine, without changes to the 
proposed text as published in the August 11, 1995, issue of the Texas Register 
(20 TexReg 6061). 
 The repeals are adopted in order to allow the department to make the 
regulations consistent with House Bill 3003 passed in the 74th Legislative 
Session (now codified at Texas Agriculture Code (the Code), Chapter 6 (Vernon 
Supplement 1995)). 
 The department is submitting separately adopted new sections in order to 
substitute those for these sections. 
 No comments were received regarding the adoption of the repeals. 
 The repeals are adopted under the Texas Agriculture Code, sec.74.006, which 
provides the Texas Department of Agriculture with the authority to adopt rules 
as necessary for the efficient enforcement and control and administration of the 
Cotton Pest Law. 
 
  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 September 11, 1995. 
 TRD-9511642 
  Dolores Alvarado Hibbs 
 Chief Administrative Law Judge 
 Texas Department of Agriculture 
    Effective date: October 2, 1995 
 Proposal publication date: August 11, 1995 
 For further information, please call: (512) 463-7583 
         
           Chapter 6. Boll Weevil Control 
  
  4 TAC sec.sec.6.1-6.6 
 
  The Texas Department of Agriculture (the department) adopts the repeal of 
sec.sec.6.1-6.6, concerning boll weevil control, without changes to the proposed 
text as published in the August 11, 1995, issue of the Texas Register  (20 
TexReg 6061). 
 The repeals are adopted in order to allow the department to make the 
regulations consistent with House Bill 3003 passed in the 74th Legislative 
Session (now codified at Texas Agriculture Code (the Code), Chapter 6 (Vernon 
Supp. 1995). 
 The department is submitting separately adopted new sections in order to 
substitute those for these sections. 
 No comments were received regarding adoption of the repeals. 
 The repeals are adopted under the Texas Agriculture Code, sec.74.006, which 
provides the Texas Department of Agriculture with the authority to adopt rules 
as necessary for the efficient enforcement and control and administration of the 
Cotton Pest Law. 
 
  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 September 11, 1995. 
 TRD-9511641 
  Dolores Alvarado Hibbs 
 Chief Administrative Law Judge 
 Texas Department of Agriculture 
    Effective date: October 2, 1995 
 Proposal publication date: August 11, 1995 
 For further information, please call: (512) 463-7583 
         
         Chapter 6. Cotton Pest Control 
  
  4 TAC sec.sec.6.1-6.10 
 
  The Texas Department of Agriculture (the department) adopts new sec.sec.6.1-6. 
10, concerning cotton pest control. Section 6.9 is adopted with changes to the 
proposed text as published in the August 11, 1995, issue of the Texas Register 
(20 TexReg 6062). Sections 6.1-6.8 and 6.10 are adopted without changes and will 
not be republished. 
 These new sections are being adopted in accordance with statutory changes made 
by the 74th Legislature, Regular Session, 1995 in accordance with House Bill 
3003. Section 6.9 is adopted with changes to subsection (b), paragraph (4) by 
adding new subparagraph (E) which allows for extensions for cotton stalk 
destruction when other extenuating circumstances are determined by the 
department. 
 The department is adopting new sec.sec.6.1-6.10 to combine the current pink 
bollworm and boll weevil regulations into one consolidated rule which assists in 
controlling and minimizing the spread of cotton pests. 
 No comments were received regarding adoption of the new sections. 
 The new sections are adopted under the Texas Agriculture Code, sec.74.006, 
which provides the Texas Department of Agriculture with the authority to adopt 
rules as necessary for the efficient enforcement and administration of the 
Cotton Pest Law. The new sections concerning quarantines are proposed under the 
Texas Agriculture Code, sec.74.010, which permits the regulation of cotton pests 
and quarantines; and the Texas Agriculture Code Chapter 71, Subchapter A, which 
authorizes inspections, quarantines, and control and eradication zones for 
dangerous insect pests. 
 
 
  sec.6.9. Authorized Planting and Stalk Destruction Dates. 
 
  (a) All cotton plants in any of the pest management zones set forth in sec.6.7 
of this title (relating to Pest Management Zones) shall be planted within and 
mechanically destroyed by the authorized planting and stalk destruction dates 
indicated for each zone. Destruction shall be accomplished by the methods 
described as follows. 
 
  (1) Zone 1. 
 
  (A) Planting dates: February 1-April 20. 
   
  (B) Cotton destruction date: on or before September 1. Destruction shall be 
accomplished by shredding and plowing out the plants to prohibit the presence of 
any cotton plants. 
     
  (2) Zone 2. 
 
  (A) Area (1). 
 
  (i) Planting dates: February 1-April 15. 
   
  (ii) Cotton destruction date: on or before September 10. 
   
  (iii) Destruction shall be accomplished by shredding and plowing out the 
plants to prohibit the presence of any cotton plants. 
     
  (B) Area (2). 
 
  (i) Planting dates: February 1-April 15. 
   
  (ii) Cotton destruction date: on or before September 25. 
   
  (iii) Destruction shall be accomplished by shredding and plowing out the 
plants to prohibit the presence of any cotton plants. 
     
  (C) Area (3). 
 
  (i) Planting dates: March 1-May 1. 
   
  (ii) Cotton destruction date: on or before October 1; 
   
  (iii) Destruction shall be accomplished by shredding and plowing out the 
plants to prohibit the presence of any cotton plants. 
       
  (3) Zone 3. 
 
  (A) Area (1). 
 
  (i) Planting dates: March 5-May 15. 
   
  (ii) Cotton destruction date: on or before October 1. 
   
  (iii) Destruction shall be accomplished by shredding and plowing out the 
plants to prohibit the presence of any cotton plants. 
     
  (B) Area (2). 
 
  (i) Planting dates: March 5-May 15; 
   
  (ii) Cotton destruction date: on or before October 15. 
   
  (iii) Destruction shall be accomplished by shredding and plowing out the 
plants to prohibit the presence of any cotton plants. 
       
  (4) Zone 4. 
 
  (A) Planting dates: March 5-May 10. 
   
  (B) Cotton destruction date: on or before October 10. Destruction shall be 
accomplished by shredding and plowing out the plants to prohibit the presence of 
any cotton plants. 
     
  (5) Zone 5. 
 
  (A) Planting dates: March 10-May 20. 
   
  (B) Cotton destruction date: on or before October 20. Destruction shall be 
accomplished by shredding and/or plowing out the plants to prevent further 
growth of any cotton plants. 
     
  (6) Zone 6. 
 
  (A) Planting dates: March 10-May 20. 
   
  (B) Cotton destruction date: on or before October 31. Destruction shall be 
accomplished by shredding and/or plowing out the plants to prevent further 
growth of any cotton plants. 
     
  (7) Zone 7. 
 
  (A) Planting dates: March 20-May 31. 
   
  (B) Cotton destruction date: on or before November 30. Destruction shall be 
accomplished by shredding and/or plowing out the plants to prevent further 
growth of any cotton plants. 
     
  (8) Zone 8. Cotton destruction date: on or before February 1. 
 
  (A) Destruction shall be accomplished by shredding and plowing out the plants 
to prohibit the presence of any cotton plants. 
   
  (B) Plowing shall be performed with an implement which dislodges the root and 
leaves the soil in a ridged and roughened condition. 
     
  (9) Zone 9. 
 
  (A) Planting dates: March 15-May 31. 
   
  (B) Cotton destruction date: on or before February 1. Destruction shall be 
accomplished by shredding and plowing out the plants to prohibit the presence of 
any cotton plants. 
       
  (b) The department may, on written request by a farm owner and/or operator, 
grant an extension of the cotton planting or destruction dates. The department 
may also, on written request by a farm owner and/or operator, authorize an 
alternative to the method of mechanical destruction of cotton prescribed by 
these rules. Requests for extensions or changes in the method of the destruction 
of cotton stalks, regrowth cotton or volunteer cotton may be granted for the 
reasons listed in paragraph (4) of this subsection. 
 
  (1) A written request must include the Consolidated Farm Service Agency (CFSA) 
Farm/Tract Number, the reason for the request, the amount of acreage subject to 
the request, and the amount of time needed to complete planting or destruction. 
   
  (2) All requests for extensions on initially un-destroyed or un-planted cotton 
or for approval of an alternative method of cotton destruction must be 
postmarked on or prior to the last planting date or cotton destruction date, 
whichever is applicable. An extension may be requested after the last planting 
date if sufficient information is provided by the owner or operator documenting 
that the crop was initially planted prior to the planting deadline and re-
planting is necessary, or after the cotton destruction date if the stalks were 
previously destroyed prior to the deadline. Extensions may be granted based on 
the criteria in paragraph (4) of this subsection. 
   
  (3) Failure to submit an extension request when required constitutes a 
violation and shall subject the farm owner and/or operator to administrative 
penalties as allowed by the Texas Agriculture Code, Chapter 74, and the Texas 
Agriculture Code, sec.12.020. 
   
  (4) Extension requests will be considered for approval only if compliance with 
subsection (a) of this section is delayed for one or more of the following 
reasons: 
 
  (A) research; 
   
  (B) weather conditions; 
   
  (C) illness; 
   
  (D) mechanical failure; or 
   
  (E) other good cause. 
       
  (c) Where there is conflict between the planting and cotton destruction dates 
set for counties in the pest management zones established under this chapter, 
and the planting and stalk destruction dates set for those same counties under 
other federal, state or county regulations, the dates set under this chapter 
shall take precedence, unless otherwise specified. 
 
  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 September 11, 1995. 
 TRD-9511640 
  Dolores Alvarado Hibbs 
 Chief Administrative Law Judge 
 Texas Department of Agriculture 
    Effective date: October 2, 1995 
 Proposal publication date: August 11, 1995 
 For further information, please call: (512) 463-7583 
         
               Part II. Texas Animal Health Commission 
  Chapter 41. Fever Ticks 
  
  4 TAC sec.41.1 
 
  The Texas Animal Health Commission adopts an amendment to sec.41.1, concerning 
tick eradication, without changes to the proposed text as published in the July 
25, 1995, issue of the Texas Register (20 TexReg 5458). 
 The amendment is necessary to allow the Executive Director to authorize 
research programs and field studies vary from standard tick quarantine 
requirements. 
 One comment in favor of the regulation was received from Heart-Bar Deer Farms. 
The Texas Animal Health Commission agrees with this comment that regulation will 
facilitate field studies that may advance eradication of the fever tick. 
 The amendment is adopted under the Texas Agriculture Code, Texas Civil 
Statutes, Chapter 161, which provides the Commission with the authority to adopt 
rules to eradicate ticks. 
 The amendment implements the Agriculture Code, sec.167.003 and sec.167.029, 
which authorizes the Commission to adopt necessary rules to eradicate ticks and 
to provide conditions for the handling and movement of livestock. 
 
  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 September 11, 1995. 
 TRD-9511612 
  Terry Beals, DVM 
 Executive Director 
 Texas Animal Health Commission 
    Effective date: October 15, 1995 
 Proposal publication date: July 25, 1995 
 For further information, please call: (512) 719-0714 
         
         Chapter 43. Tuberculosis 
  
  Subchapter A. Cattle 
 
  4 TAC sec.43.1 
 
  The Texas Animal Health Commission adopts an amendment to sec.43.1, concerning 
the movement of cattle exposed to tuberculosis, without changes to the proposed 
text as published in the July 28, 1995, issue of the Texas Register  (20 TexReg 
5561). 
 The amendment is necessary to allow cattle exposed to tuberculosis to move to 
designated pens if tested negative to tuberculosis within 60 days prior to 
entry. 
 No comments were received regarding adoption of the amendment. 
 The amendment is proposed under the Texas Agriculture Code, Texas Civil 
Statutes, Chapter 162, which provides the Commission with the authority to enter 
into a cooperative program to eradicate tuberculosis. 
 The amendment implements the Agriculture Code, sec.sec.162.002, 162.003, 161. 
041, and 161.061, which provides the Commission with the authority to establish 
rules relating to tuberculosis, establish testing requirements, protect 
livestock from tuberculosis, and establish quarantines. 
 
  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 September 11, 1995. 
 TRD-9511610 
  Terry Beals, DVM 
 Executive Director 
 Texas Animal Health Commission 
    Effective date: October 15, 1995 
 Proposal publication date: July 28, 1995 
 For further information, please call: (512) 719-0714 
         
           Chapter 47. Requirements and Standards for Approved Personnel 
  
  4 TAC sec.47.1 
 
  The Texas Animal Health Commission adopts an amendment to sec.47.1, concerning 
changing the vaccination age of female cattle from 120 and 365 days to four and 
ten months, without changes to the proposed text as published in the July 25, 
1995, issue of the Texas Register (20 TexReg 5459). 
 The amendment is necessary to lower the maximum age for official calfhood 
vaccination. 
 No comments were received regarding adoption of the amendment. 
 The amendment is adopted under the Texas Agriculture Code, Texas Civil 
Statutes, Chapter 163, which provides the Commission with the authority to 
promulgatge rules to eradicate brucellosis. 
 The amendment implements the Agriculture Code, sec.163.064, which provides the 
Commission with the authority to regulate and require vaccination. 
 
  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 September 11, 1995. 
 TRD-9511611 
  Terry Beals, DVM 
 Executive Director 
 Texas Animal Health Commission 
    Effective date: October 15, 1995 
 Proposal publication date: July 25, 1995 
 For further information, please call: (512) 719-0714 
         
         Chapter 55. Swine 
  
  4 TAC sec.55.4 
 
  The Texas Animal Health Commission adopts an amendment to sec.55.4, concerning 
livestock markets handling swine, without changes to the proposed text as 
published in the July 25, 1995, issue of the Texas Register (20 TexReg 5460). 
 The amendment is necessary to increase disease surveillance for swine by 
testing and identification. 
 One comment was received regarding adoption of the amendment. The Texas Pork 
Producers opposed the exemption from post-sale testing for swine with disease-
free status or a negative test within 30 days prior to sale. The Commission 
deferred consideration of eliminating the exemption rather than postponing 
adoption of the livestock testing program. 
 The amendment is adopted under the Texas Agriculture Code, Texas Civil 
Statutes, sec.165.022, which provides the Commission with the authority to 
promulgate rules for eradication of swine diseases. 
 The amendment implements the Agriculture Code, sec.165.021 and sec.165.022, 
which provide the Commission with the authority to act to eradicate swine 
diseases. 
 
  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 September 11, 1995. 
 TRD-9511614 
  Terry Beals, DVM 
 Executive Director 
 Texas Animal Health Commission 
    Effective date: October 15, 1995 
 Proposal publication date: July 25, 1995 
 For further information, please call: (512) 719-0714 
         
             
  TITLE 7. BANKING AND SECURITIES 
 Part II. Banking Department of Texas 
  Chapter 29. Sale of Checks Act 
  
  7 TAC sec.29.1 
 
  The Banking Commissioner of Texas (the commissioner) adopts new sec.29.1, 
concerning permissible investments for licensees under the Sale of Checks Act, 
Texas Civil Statutes, Article 489d (the Act), without changes to the proposed 
text as published in the July 28, 1995, issue of the Texas Register  (20 TexReg 
5575). 
 The Act, sec.9, provides that licensees with a net worth of not less than $5 
million must maintain permissible investments equal to the aggregate face amount 
of all of their outstanding checks sold in the United States. Under the Act, 
sec.9A, the commissioner has the authority to approve investments other than 
those specified in the Act as "permissible investments" for purposes of the Act, 
sec.9 and sec.9A. The commissioner also is empowered to adopt and enforce 
reasonable rules to implement sec.9A. The section as adopted expands the list of 
investments that would qualify as permissible investments under sec.9A. 
 No comments were received regarding adoption of the new section. 
 The new section is adopted under Texas Civil Statutes, Article 489d, sec.9A, 
which authorize the commissioner to approve investments other than those 
specified in that section as permissible investments for purposes of the Act and 
to adopt and enforce reasonable rules to implement that section. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on September 11, 1995. 
 TRD-9511630 
  Everette D. Jobe 
 General Counsel 
 Banking Department of Texas 
    Effective date: October 2, 1995 
 Proposal publication date: July 28, 1995 
 For further information, please call: (512) 475-1300 
         
             
  TITLE 13. CULTURAL RESOURCES 
 Part I. Texas State Library and Archives Commission 
  Chapter 7. Local Records 
  
  Standards and Procedures for Management of Electronic Records 
 
  13 TAC sec.sec.7.71-7.78 
 
  The Texas State Library and Archives Commission adopts amendments to 
sec.sec.7.71-7.78, concerning standards and procedures for the management of 
electronic records of local governments. Section 7.75 is adopted with changes to 
the proposed text as published in the May 30, 1995, issue of the Texas Register 
(20 TexReg 3946). Sections 7.71-7.74 and 7.76-7.78 are adopted without changes 
and will not be republished. 
 Amendments are being adopted to provide electronic recordkeeping requirements 
that are more clearly stated and that update the rules with newly published 
national standards. Subsection (c) of sec.7.75 is amended based on comments 
received from a government records management official that the requirements for 
records stored on rewritable media should apply to all electronic records within 
the scope of the rules to support the integrity and authenticity of the records. 
 Adoption of the amendments makes the rules for electronic records easier to use 
by removing definitions for records of varying retention periods, as these 
distinctions serve no purpose in the context of the requirements of these 
sections; by setting out in full, rather than by reference, requirements 
concerning temperature and humidity requirements for the storage of optical 
disks and the expungement of information from a certain type of optical disk; 
and by removing references to state agencies in order to make these sections 
language specific to local governments. The opportunity for local governments to 
appropriately use digital imaging systems is enhanced by adding a standard for 
the scanning of microforms that has become available since the rules were 
originally adopted. 
 The commission received one comment regarding adoption of a change to sec.7. 
75, which was incorporated into the rules. This comment was received from Laura 
McGee, Records Management Officer, City of Dallas. 
 The amendments are adopted under the Local Government Code, sec.205.003(a), 
which provides the Texas State Library and Archives Commission with the 
authority to adopt rules establishing standards and procedures for the 
electronic storage of local government records. The amendments were approved by 
the Local Government Records Committee, as required by the Government Code, 
sec.441.165, at an open meeting held in Austin on June 20, 1995. 
 The Local Government Code, sec.205.003, is affected by the amendments. 
 
 
  sec.7.75. Security of Electronic Records. 
 
  (a) Local governments must implement and maintain an electronic records 
security program for office and storage areas that: 
 
  (1)-(5) (No change.) 
     
  (b) (No change.) 
   
  (c) For records stored on rewritable electronic media, the system must ensure 
that read/write privileges are controlled and that an audit trail of rewrites is 
maintained. 
 
  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 September 11, 1995. 
 TRD-9511620 
  Raymond Hitt 
 Assistant State Librarian 
 Texas State Library and Archives Commission 
    Effective date: October 2, 1995 
 Proposal publication date: May 30, 1995 
 For further information, please call: (512) 463-5460 
         
                   
  TITLE 22. EXAMINING BOARDS 
 Part IV. Texas Cosmetology Commission 
  Chapter 89. General Rules and Regulations 
  
  22 TAC sec.sec.89.4, 89.6, 89.11, 89.14, 89.20, 89.34, 89.41, 89. 53, 89.54, 
89.56, 89.72, 89.75, 89.76 
 
  The Texas Cosmetology Commission adopts amendments and new section to 
sec.89.4, concerning cosmetology instructor on duty; sec.89.6, concerning new 
location or change in floor plan of school; sec.89.11, concerning daily 
attendance register;  sec.89.14, concerning concurrent enrollments and make-up 
hours; sec.89.20, concerning length of courses; sec.89.34, concerning applicants 
for licensure through reciprocity; sec.89.41, concerning change of location of a 
salon or independent contractor; sec.89.53, concerning minimum requirements for 
both private and public cosmetology schools; sec.89.54, concerning independent 
contractor/booth rental license; sec.89.72, concerning curriculum; sec.89.75, 
concerning field trips; and sec.89.76, concerning minimum requirements for 
cosmetology school separate facility; and new sec.89.56, concerning 
administrative processing fees. Sections 89.20, 89.34, 89.41, 89.53, 89.54, and 
89.72 are adopted with changes to the proposed text as published in the August 
8, 1995, issue of the Texas Register (20 TexReg 5984). Changes are the result of 
public comments received in open meeting September 9, 1995. Amended 
sec.sec.89.4, 89.6, 89.11, 89.14, 89.75, and 89.76; and new 89.56 are adopted 
without changes and will not be republished. 
 The amendments and new section are adopted to comply with Senate Bill 1502 and 
House Bill 1, 74th Texas Legislature, Regular Session. 
 The amended and new sections will bring the Texas Cosmetology Commission into 
compliance with Senate Bill 1502 and House Bill 1, 74th Legislature, Regular 
Session. 
 No comments were received regarding the adoption of the amendments and new 
section. 
 The amendments and new section are adopted under Texas Civil Statutes, Article 
8451a, sec.4(a), which provide the Texas Cosmetology Commission with the 
authority to "issue rules consistent with this Act after a public hearing", to 
protect the public's health and welfare. 
 
 
  sec.89.20. Length of Courses. 
 
  (a)-(h) (No change.) 
   
  (i) Manicurist: The manicuring course shall be for 600 hours in an approved 
school. 
   
  (j)-(k) (No change.) 
   
  (l) Recommendations for approving validation of hours: 
 
  (1)-(7) (No change.) 
   
  (8) The guidelines recommended above will be pro-rated based upon the number 
of hours required for the speciality license or instructor license. Required 
course hours for licensure are based on current hour requirements at the time of 
reinstatement. 
 
       
  sec.89.34. Applicants for Licensure through Reciprocity. 
 
  (a) Any person who seeks licensure in the State of Texas through reciprocity 
from any other state shall: 
 
  (1)-(3) (No change.) 
   
  (4) the applicant must present the same number of hours as required by the 
State of Texas for the applied license; 
   
  (5) In addition, the state from which the applicant holds a current license or 
certificate must grant reciprocity for Texas license or certificate holders. 
     
  (b) Any person who seeks licensure in the State of Texas through reciprocity 
from another nation shall: 
 
  (1)-(3) (No change.) 
   
  (4) the applicant must present the same number of hours as required by the 
State of Texas for the applied license; and 
   
  (5) (No change.) 
   
  (6) In addition, the state from which the applicant holds a current license or 
certificate must grant reciprocity for Texas license or certificate holders. 
     
  (c) (No change.) 
 
     
  sec.89.41. Change of Location of a Salon or School. A salon or school may move 
and continue to operate with the current license, but must be inspected and 
approved under the current requirements in the new location. The salon or school 
must notify the commission office in writing of the change of address as soon as 
the change of address becomes available. 
 
   
  sec.89.53. Minimum Requirements for Both Private and Public Cosmetology 
Schools. 
 
  (a) The following are the requirements for a private cosmetology school as 
authorized by the Texas Cosmetology Commission: 
 
  (1) A building to house a cosmetology school must be fireproof and of 
permanent type of construction, and contain a minimum of 3,500 square feet of 
floor space, with separate restrooms for male and female students. The building 
must be divided into two separate areas: one for classroom instruction and one 
clinic work area. 
   
  (2)-(15) (No change.) 
     
  (b) (No change.) 
 
     
  sec.89.54. Independent Contractor/Booth Rental License. 
 
  (a)-(d) (No change.) 
   
  (e) The original and renewal booth rental license fee shall be $50 and shall 
be valid for two years from date of issue. If a booth rental license is 
delinquent for less than 30 days, the delinquency fee shall be $10, over 30 days 
the delinquency fee shall be $25. 
   
  (f) Independent Contractors practicing cosmetology in more than one location 
must exhibit an original booth rental license at each location. 
   
  (g) Independent Contractors must post in a location visible at all times the 
following information. It must be posted on the outside of the booth or the door 
where it can be read by visitors or prospective clients: 
 
  (1) Operators name. 
   
  (2) Operators license number. 
   
  (3) Hours of business. 
     
  (h) The lessor to an independent contractor must maintain a list of all 
renters that includes: 
 
  (1) Name of renter. 
   
  (2) Cosmetology license number of the renter. 
   
  (3) Hours of business of the renter. 
     
  (i) The lessor must supply the inspector with a list of renters upon request. 
Failure to provide the list can result in a violation of such significance to 
require a hearing. 
 
     
  sec.89.72. Curriculum.  The curriculum listed has been established by the 
Texas Cosmetology Commission and must be followed by all cosmetology schools. 
The curriculum shall be posted in a conspicuous place in the school. A current 
syllabus and lesson plans for each course shall be maintained by the school and 
be available for inspection. 
 
  (1) Operator curriculum. 
 
  (A)-(C) (No change.) 
   
  (D) Manicure curriculum: 
 
  (i)-(iv) (No change.) 
   
  (v) procedures, 320 hours; 
 
  (I)-(IX) (No change.) 
   
  (X) application of nail extensions; 
 
  (-a-)-(-d-) (No change.) 
   
  (-e-) Odorless product 
       
  (vi) arms and hands; 
 
  (I) (No change.) 
   
  (II) muscles-ten hours: 
 
  (-a-)-(-b-) (No change.) 
     
  (III) (No change.) 
   
  (IV) skin-ten hours; 
 
  (-a-)-(-e-) (No change.) 
     
  (V) nails-50 hours; 
 
  (-a-)-(-d-) (No change.) 
       
  (vii) bactoriology, sanitation and safety measures-100 hours; 
 
  (I)-(IV) (No change.) 
     
  (viii) professional practices -80 hours; 
 
  (I)-(II) (No change.) 
     
  (ix) total, 600 hours. 
   
  (x) Theory is construed to mean any topic of instruction (See listed in this 
subparagraph) in the classroom or practical area. 
     
  (E)-(I) (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 September 11, 1995. 
 TRD-9511638 
  Dick G. Strader 
 Executive Director 
 Texas Cosmetology Commission 
    Effective date: October 2, 1995 
 Proposal publication date: August 8, 1995 
 For further information, please call: (512) 454-4674 
         
             
  22 TAC sec.89.5, sec.89.73 
 
  The Texas Cosmetology Commission adopts the repeal of sec.89.5, concerning 
specialty instructor on duty; and sec.89.73, concerning fashion photography 
salon requirements, without changes to the proposed text as published in the 
August 4, 1995, issue of the Texas Register (20 TexReg 5850). 
 The repeals are adopted to comply with Senate Bill 1502, 74th Texas 
Legislature, Regular Session. 
 Rule 89.5 defined the requirements for speciality instructors on duty in 
schools of cosmetology. Rule 89.73 defined the requirements for fashion 
photography salons. 
 No comments were received regarding adoption of the repeals. 
 The repeals are adopted under Texas Civil Statutes, Article 8451a, sec.4(a), 
which provide the Texas Cosmetology Commission with the authority to "issue 
rules consistent with this Act after a public hearing", to protect the public's 
health and welfare. 
 
  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 September 11, 1995. 
 TRD-9511639 
  Dick G. Strader 
 Executive Director 
 Texas Cosmetology Commission 
    Effective date: October 2, 1995 
 Proposal publication date: August 4, 1995 
 For further information, please call: (512) 454-4674 
         
           Part XI. Board of Nurse Examiners 
  Chapter 211. Bylaws 
  
  22 TAC sec.211.7 
 
  The Board of Nurse Examiners adopts an amendment to sec.211.7, concerning 
Committees of the Board, without changes to the proposed text as published in 
the July 28, 1995, issue of the Texas Register (20 TexReg 5578). 
 In accordance with the Health and Safety Code, sec.142.016, the Board of Nurse 
Examiners and the Texas Department of Health (TDH) entered into a memoranda of 
understanding (MOU) and is adopting rules to address the relationship in regard 
to the MOU. 
 The amendment will comply with the legislative directive and clarify that 
jurisdiction granted to each agency follows the statutory delegation of 
authority from the legislature. 
 There were no comments received regarding adoption of the amendment. 
 The amendment 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 authority. 
 Issued in Austin, Texas, on September 11, 1995. 
 TRD-9511634 
  Kathy Thomas, MN, RN, CPNP 
 Interim Executive Director 
 Board of Nurse Examiners 
    Effective date: October 2, 1995 
 Proposal publication date: July 28, 1995 
 For further information, please call: (512) 835-8675 
         
         Chapter 217. Licensure and Practice 
  
  22 TAC sec.217.3 
 
  The Board of Nurse Examiners adopts an amendment to sec.217.3, concerning 
Temporary Permit, without changes to the proposed text as published in the July 
28, 1995, issue of the Texas Register (20 TexReg 5587). 
 The Computer Adaptive Test (CAT), implemented in 1994, offers daily testing of 
candidates, rather than twice a year as previously done with the paper and 
pencil exam. As candidates complete all requirements for graduation and testing, 
they are deemed eligible for the examination. Currently, the temporary permit is 
only valid for 60 days or until the results of the exam are received. This has 
caused numerous problems with for the candidates and their employers. Extending 
the length of time for the temporary permit will benefit the candidates, 
employers and office staff. 
 The amendment will provide additional time for application and results process 
ing and license mailing to occur, will increase the time in which graduates can 
test and will inform educators, employers and graduate nurses of the period the 
permit is valid. 
 There were no comments received regarding adoption of the amendment. 
 The amendment 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 authority. 
 Issued in Austin, Texas, on September 11, 1995. 
 TRD-9511635 
  Kathy Thomas, MN, RN, CPNP 
 Interim Executive Director 
 Board of Nurse Examiners 
    Effective date: October 2, 1995 
 Proposal publication date: July 28, 1995 
 For further information, please call: (512) 835-8675 
         
             
  TITLE 25. HEALTH SERVICES 
 Part VII. Texas Medical Disclosure Panel 
  Chapter 601. Informed Consent 
 Texas Medical Disclosure Panel (panel) adopts the repeal of existing 
sec.sec.601.1-601.4 and adopts new sec.sec.601.1-601.6 concerning informed 
consent. Section 601.2 and sec.601.3 are adopted with changes to the proposed 
text as published in the April 7, 1995, edition of the Texas Register  (20 
TexReg 2593). Section 601.1 and sec. sec.601.4-601.6 and the repealed sections 
are adopted without changes to the proposed text and therefore will not be 
published. 
 the new sections cover the purpose of the chapter; the panel's procedures 
requiring full disclosure (list A) and procedures requiring no disclosure (list 
B); the panel's disclosure and consent form; the panel's radiation therapy 
disclosure and consent form; and the history of the rules of the panel. 
 repeal of sec.sec.601.1-601.4 allow for the adoption of the new sections in 
Texas Register format. New sec.601.1 relates generally to the panel and sets out 
the purpose of the sections which are to implement the requirements of the 
Medical Liability and Insurance Improvement Act of Texas, Texas Civil Statutes, 
Article 4590i, Subchapter F relating to informed consent. This section also 
makes reference to list A in the new sec.601.2 and list B in the new sec.601.3. 
 601.2 and sec.601.3 have been put into proper Texas Register format so that the 
full text of the rules, including list A and list B, will be published in future 
volumes of the Texas Administrative Code. At this time the actual list A and 
list B are adopted by reference and are not published in the code. There are no 
changes to the procedures listed or to the risks and hazards assigned to the 
listed procedures. The only purpose of the new sections is to place the existing 
procedures and risks and hazards into Texas Register format. 
 some places it was necessary to add additional language stating that no other 
procedures or risks are assigned at this time. This language was added in order 
to create the proper outline form of having two items, such as subparagraphs (A) 
and (B) in each list. This change is found in new sec.601.2(a) (1)(B), (2)(B), 
(3)(B), (c)(2), (e)(2), (h)(2), and (q)(2). In sec.601.3 this change is found in 
subsections (b)(2) and (h)(2). In addition, since the disclosure and consent 
form has been moved to new  sec.601.4, the reference to the form has been 
changed in new  sec.601.2 (a)(1)(A), (2)(A), and (3)(A). In addition, 
punctuation or capitalization has been corrected in ten places in new  sec.601.2 
and in one place in new sec.601.3. In new sec.601.3, subsection (n) under 
radiology has been changed to use lower case letters instead of capital letters 
in paragraphs (11), (16), (18), (20), (23), (24)-(27), and (31) and in paragraph 
(11) "gastrointestinal" is spelled out. 
 new sec.601.4 the disclosure and consent form is being adopted so that it will 
be published in the Texas Administrative Code. There have been no changes to the 
language of the disclosure and consent form. This is still the same form 
originally adopted by the panel in 1982. New sec.601.5 adopts the radiation 
therapy disclosure and consent form which was originally adopted by the panel in 
1990. There have been no changes to the form. 
 sec.601.6 lists the history of the rules adopted by the panel. The history is 
listed in order to assist individuals in identifying the rules in effect on a 
certain date. This history was previously included in existing sec.601.1. 
 Texas Department of Health (department) accepted comments on the proposal for a 
30-day period beginning April 7, 1995. The department received the following 
comments from department staff to correct errors in terminology. No other 
comments were received. 
 One commenter suggested changing the word "uncontrolled" in  sec.601. 
2(g)(5)(A) relating to removing fibroids, (7)(A) relating to removal of the 
nerves to the uterus (presacral neurectomy), (8)(A) relating to removal of the 
cervix, and (10)(A) relating to abdominal suspension of the bladder (retropubic 
urethropexy), to "uncontrollable" in order to maintain consistency with  
sec.601.2(g)(1)(A), (2)(A), and (6)(A), and because the term "uncontrollable" 
better describes the condition. 
 The department agrees and has changed the term "uncontrolled" in subparagraphs 
(5)(A), (7)(A), (8)(A) and (10)(A) to "uncontrollable." The term "uncontrolled" 
was used in the panel's existing rules at sec.sec.601.1.7.5.1, 601.1.7.7.1, 
601.1.7.8.1, and 601.1.7.10.1 which are being repealed and replaced. 
 One commenter asked if the words "shinny" and "contratrue" in 
sec.601.2(r)(8)(B)(i) relating to skin should be "shiny" and "contracture." 
 Response: The department agrees and has made the change. The words were 
misspelled in the panel's existing rules at sec.sec.601.1.18.8.2.1 which are 
being repealed and replaced. 
 One commenter asked if the term "stereotaxic" should be "stereotactic" in 
sec.601.3(m)(7) relating to nervous system. 
 The department agrees and has made the change. The word was misspelled in the 
panel's existing rules at sec.601.2.13.7. 
 One commenter asked if the term "dachrocystography" should be 
"dacryocystography" in sec.601.3(n)(15) relating to radiology. 
 The department agrees and has made the change. The term was misspelled in the 
panel's existing rules at sec.601.2.14.15 which is being repealed and replaced. 
 One commenter asked if the term "cystolitholopaxy" should be "cystolitholapaxy" 
in sec.601.3(p)(4) relating to urinary system. 
 The department agrees and has made the change. The term was misspelled in the 
panel's existing rules at sec.601.2.16.4 which is being repealed and replaced. 
  
  Medical Treatments and Surgical Procedure Established by the Texas Medical 
Disclosure Panel 
 
  25 TAC sec.sec.601.1-601.4 
 
  The repeals are adopted under the Medical Liability and Insurance Improvement 
Act of Texas, Texas Civil Statutues, Article 4590i, sec.6.04 which authorizes 
the Texas Medical Disclosure Panel to prepare lists of medical treatments and 
surgical procedures that do and do not require disclosure by physicians and 
health care providers of the possible risks and hazards and to prepare the form 
for the treatments and procedures which do require disclosure. 
 
  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 September 11, 1995. 
 TRD-9511685 
  John Yatsu, M.D. 
 Chairman 
 Texas Medical Disclosure Panel 
    Effective date: October 3, 1995 
 Proposal publication date: April 7, 1995 
 For further information, please call: (512) 458-7236 
         
       
  25 TAC sec.sec.601.1-601.6 
 
  The new sections are adopted under the Medical Liability and Insurance 
Improvement Act of Texas, Texas Civil Statutes, Article 4590i, sec.6.04, which 
authorizes the Texas Medical Disclosure Panel to prepare lists of medical 
treatments and surgical procedures that do and do not require disclosure by 
physicians and health care providers of the possible risks and hazards and to 
prepare the form for the treatments and procedures which do require disclosure. 
 
 
  sec.601.2. Procedures Requiring Full Disclosure-List A. 
 
  (a)  Anesthesia. 
 
  (1) Epidural. 
 
  (A) Risks are enumerated in the form in sec.601.4 of this title (relating to 
Disclosure and Consent Form). 
   
  (B) No other risks are assigned at this time. 
     
  (2) General. 
 
  (A) Risks are enumerated in the form in sec.601.4 of this title. 
   
  (B) No other risks are assigned at this time. 
     
  (3) Spinal. 
 
  (A) Risks are enumerated in the form in sec.601.4 of this title. 
   
  (B) No other risks are assigned at this time. 
       
  (b)  Cardiovascular system. No procedures are assigned at this time. 
   
  (c)  Digestive system treatments and procedures. 
 
  (1) Cholecystectomy with or without common bile duct exploration. 
 
  (A) Pancreatitis. 
   
  (B) Injury to the tube between the liver and the bowel. 
   
  (C)  Retained stones in the tube between the liver and the bowel. 
   
  (D)  Narrowing or obstruction of the tube between the liver and the bowel. 
   
  (E) Injury to the bowel and/or intestinal obstruction. 
     
  (2)  Other procedures. No other procedures are assigned at this time. 
     
  (d)  Ear treatments and procedures. 
 
  (1) Stapedectomy. 
 
  (A)  Diminished or bad taste. 
   
  (B) Total or partial loss of hearing in the operated ear. 
   
  (C) Brief or long-standing dizziness. 
   
  (D)  Eardrum hole requiring more surgery. 
   
  (E) Ringing in the ear. 
     
  (2) Reconstruction of auricle of ear for congenital deformity or trauma. 
 
  (A) Less satisfactory appearance compared to possible alternative artificial 
ear. 
   
  (B) Exposure of implanted material. 
     
  (3) Tympanoplasty with mastoidectomy. 
 
  (A) Facial nerve paralysis. 
   
  (B) Altered or loss of taste. 
   
  (C) Recurrence of original disease process. 
   
  (D) Total loss of hearing in operated ear. 
   
  (E) Dizziness. 
   
  (F) Ringing in the ear. 
       
  (e) Endocrine system treatments and procedures. 
 
  (1) Thyroidectomy. 
 
  (A)  Injury to nerves resulting in hoarseness or impairment of speech. 
   
  (B)  Injury to parathyroid glands resulting in low blood calcium levels that 
require extensive medication to avoid serious degenerative conditions, such as 
cataracts, brittle bones, muscle weakness and muscle irritability. 
   
  (C)  Lifelong requirement of thyroid medication. 
     
  (2) Other procedures. No other procedures are assigned at this time. 
     
  (f) Eye treatments and procedures. 
 
  (1) Eye muscle surgery. 
 
  (A) Additional treatment and/or surgery. 
   
  (B) Double vision. 
   
  (C) Partial or total loss of vision. 
     
  (2) Surgery for cataract with or without implantation of intraocular lens. 
 
  (A) Complications requiring additional treatment and/or surgery. 
   
  (B) Need for glasses or contact lenses. 
   
  (C)  Complications requiring the removal of implanted lens. 
   
  (D)  Partial or total loss of vision. 
     
  (3) Retinal or vitreous surgery. 
 
  (A) Complications requiring additional treatment and/or surgery. 
   
  (B) Recurrence or spread of disease. 
   
  (C) Partial or total loss of vision. 
     
  (4) Reconstructive and/or plastic surgical procedures of the eye and eye 
region, such as blepharoplasty, tumor, fracture, lacrimal surgery, foreign body, 
abscess, or trauma. 
 
  (A) Worsening or unsatisfactory appearance. 
   
  (B) Creation of additional problems. 
 
  (i) Poor healing or skin loss. 
   
  (ii) Nerve damage. 
   
  (iii) Painful or unattractive scarring. 
   
  (iv)  Impairment of regional organs, such as eye or lip function. 
     
  (C)  Recurrence of the original condition. 
     
  (5) Photocoagulation and/or cryotherapy. 
 
  (A) Complications requiring additional treatment and/or surgery. 
   
  (B) Pain. 
   
  (C) Partial or total loss of vision. 
     
  (6) Corneal surgery, such as corneal transplant, refractive surgery and 
pterygium. 
 
  (A) Complications requiring additional treatment and/or surgery. 
   
  (B) Possible pain. 
   
  (C) Need for glasses or contact lenses. 
   
  (D) Partial or total loss of vision. 
     
  (7)  Glaucoma surgery by any method. 
 
  (A) Complications requiring additional treatment and/or surgery. 
   
  (B) Worsening of the glaucoma. 
   
  (C) Pain. 
   
  (D) Partial or total loss of vision. 
     
  (8)  Removal of the eye or its contents (enucleation or evisceration). 
 
  (A)  Complications requiring additional treatment and/or surgery. 
   
  (B)  Worsening or unsatisfactory appearance. 
   
  (C) Recurrence or spread of disease. 
     
  (9) Surgery for penetrating ocular injury, including intraocular foreign body. 
 
  (A) Complications requiring additional treatment and/or surgery, including 
removal of the eye. 
   
  (B) Chronic pain. 
   
  (C) Partial or total loss of vision. 
       
  (g) Female genital system treatments and procedures. 
 
  (1) Abdominal hysterectomy (total). 
 
  (A) Uncontrollable leakage of urine. 
   
  (B) Injury to bladder. 
   
  (C) Sterility. 
   
  (D) Injury to the tube (ureter) between the kidney and the bladder. 
   
  (E) Injury to the bowel and/or intestinal obstruction. 
     
  (2) Vaginal hysterectomy. 
 
  (A)  Uncontrollable leakage of urine. 
   
  (B) Injury to bladder. 
   
  (C)  Sterility. 
   
  (D) Injury to the tube (ureter) between the kidney and the bladder. 
   
  (E) Injury to the bowel and/or intestinal obstruction. 
   
  (F) Completion of operation by abdominal incision. 
     
  (3) All fallopian tube and ovarian surgery with or without hysterectomy, 
including removal and lysis of adhesions. 
 
  (A) Injury to the bowel and/or bladder. 
   
  (B) Sterility. 
   
  (C) Failure to obtain fertility (if applicable). 
   
  (D) Failure to obtain sterility (if applicable). 
   
  (E) Loss of ovarian functions or hormone production from ovary(ies). 
     
  (4) Abdominal endoscopy (peritoneoscopy, laparoscopy). 
 
  (A)  Puncture of the bowel or blood vessel. 
   
  (B) Abdominal injection and complications of infection. 
   
  (C) Abdominal incision and operation to correct injury. 
     
  (5) Removing fibroids (uterine myomectomy). 
 
  (A) Uncontrollable leakage of urine. 
   
  (B) Injury to bladder. 
   
  (C) Sterility. 
   
  (D) Injury to the tube (ureter) between the kidney and the bladder. 
   
  (E) Injury to the bowel and/or intestinal obstruction. 
     
  (6) Uterine suspension. 
 
  (A) Uncontrollable leakage of urine. 
   
  (B) Injury to bladder. 
   
  (C) Sterility. 
   
  (D) Injury to the tube (ureter) between the kidney and the bladder. 
   
  (E) Injury to the bowel and/or intestinal obstruction. 
     
  (7)  Removal of the nerves to the uterus (presacral neurectomy). 
 
  (A)  Uncontrollable leakage of urine. 
   
  (B) Injury to bladder. 
   
  (C)  Sterility. 
   
  (D) Injury to the tube (ureter) between the kidney and the bladder. 
   
  (E) Injury to the bowel and/or intestinal obstruction. 
   
  (F) Hemorrhage, complications of hemorrhage, with additional operation. 
     
  (8) Removal of the cervix. 
 
  (A) Uncontrollable leakage of urine. 
   
  (B) Injury to bladder. 
   
  (C) Sterility. 
   
  (D)  Injury to the tube (ureter) between the kidney and the bladder. 
   
  (E)  Injury to the bowel and/or intestinal obstruction. 
   
  (F) Completion of operation by abdominal incision. 
     
  (9) Repair of vaginal hernia (anterior and/or posterior colporrhaphy and/or 
enterocele repair). 
 
  (A)  Uncontrollable leakage of urine. 
   
  (B) Injury to bladder. 
   
  (C)  Sterility. 
   
  (D) Injury to the tube (ureter) between the kidney and the bladder. 
   
  (E) Injury to the bowel and/or intestinal obstruction. 
     
  (10) Abdominal suspension of the bladder (retropubic urethropexy). 
 
  (A) Uncontrollable leakage of urine. 
   
  (B) Injury to bladder. 
   
  (C) Injury to the tube (ureter) between the kidney and the bladder. 
   
  (D) Injury to the bowel and/or intestinal obstruction. 
     
  (11)  Conization of cervix. 
 
  (A) Hemorrhage with possible hysterectomy to control. 
   
  (B) Sterility. 
   
  (C) Injury to bladder. 
   
  (D)  Injury to rectum. 
   
  (E) Failure of procedure to remove all of cervical abnormality. 
     
  (12) Dilation and curettage of uterus (diagnostic). 
 
  (A) Hemorrhage with possible hysterectomy. 
   
  (B)  Perforation of the uterus. 
   
  (C) Sterility. 
   
  (D) Injury to bowel and/or bladder. 
   
  (E) Abdominal incision and operation to correct injury. 
     
  (13) Dilation and curettage of uterus (obstetrical). 
 
  (A)  Hemorrhage with possible hysterectomy to control. 
   
  (B) Perforation of the uterus. 
   
  (C) Sterility. 
   
  (D) Injury to the bowel and/or bladder. 
   
  (E) Abdominal incision and operation to correct injury. 
   
  (F) Failure to remove all products of conception. 
       
  (h) Hematic and lymphatic system. 
 
  (1) Transfusion of blood and blood components. 
 
  (A) Fever. 
   
  (B) Transfusion reaction which may include kidney failure or anemia. 
   
  (C) Heart failure. 
   
  (D) Hepatitis. 
   
  (E) A.I.D.S. (acquired immune deficiency syndrome). 
   
  (F) Other infections. 
     
  (2) Other procedures. No other procedures are assigned at this time. 
     
  (i) Integumentary system treatments and procedures. 
 
  (1) Radical or modified radical mastectomy. (Simple mastectomy excluded). 
 
  (A) Limitation of movement of shoulder and arm. 
   
  (B)  Swelling of the arm. 
   
  (C) Loss of the skin of the chest requiring skin graft. 
   
  (D) Recurrence of malignancy, if present. 
   
  (E)  Decreased sensation or numbness of the inner aspect of the arm and chest 
wall. 
     
  (2) Reconstruction and/or plastic surgical operations of the face and neck. 
 
  (A) Worsening or unsatisfactory appearance. 
   
  (B)  Creation of several additional problems. 
 
  (i) Poor healing or skin loss. 
   
  (ii) Nerve damage. 
   
  (iii) Painful or unattractive scarring. 
   
  (iv) Impairment of regional organs, such as eye or lip function. 
     
  (C) Recurrence of the original condition. 
       
  (j) Male genital system. 
 
  (1) Orchidopexy (reposition of testis(es)). 
 
  (A) Removal of testicle. 
   
  (B) Atrophy (shriveling) of the testicle with loss of function. 
     
  (2) Orchiectomy (removal of the testis(es)). 
 
  (A) Decreased sexual desire. 
   
  (B)  Difficulties with penile erection. 
     
  (3) Vasectomy. 
 
  (A)  Loss of testicle. 
   
  (B) Failure to produce permanent sterility. 
       
  (k) Maternity and related cases. 
 
  (1) Delivery (vaginal). 
 
  (A) Injury to bladder and/or rectum, including a hole (fistula) between 
bladder and vagina and/or rectum and vagina. 
   
  (B) Hemorrhage possibly requiring blood administration and/or hysterectomy 
and/or artery ligation to control. 
   
  (C) Sterility. 
   
  (D) Brain damage, injury or even death occurring to the fetus before or during 
labor and/or vaginal delivery whether or not the cause is known. 
     
  (2) Delivery (cesarean section). 
 
  (A) Injury to bowel and/or bladder. 
   
  (B) Sterility. 
   
  (C) Injury to tube (ureter) between kidney and bladder. 
   
  (D)  Brain damage, injury or even death occurring to the fetus before or 
during labor and/or cesarean delivery whether or not the cause is known. 
   
  (E)  Uterine disease or injury requiring hysterectomy. 
       
  (l)  Musculoskeletal system treatments and procedures. 
 
  (1)  Arthroplasty of all joints with mechanical device. 
 
  (A) Impaired function such as shortening or deformity of an arm or leg, limp 
or foot drop. 
   
  (B) Blood vessel or nerve injury. 
   
  (C) Pain or discomfort. 
   
  (D) Fat escaping from bone with possible damage to a vital organ. 
   
  (E) Failure of bone to heal. 
   
  (F) Bone infection. 
   
  (G)  Removal or replacement of any implanted device or material. 
     
  (2)  Mechanical internal prosthetic device. 
 
  (A) Impaired function such as shortening or deformity of an arm or leg, limp 
or foot drop. 
   
  (B)  Blood vessel or nerve injury. 
   
  (C) Pain or discomfort. 
   
  (D)  Fat escaping from bone with possible damage to a vital organ. 
   
  (E)  Failure of bone to heal. 
   
  (F) Bone infection. 
   
  (G) Removal or replacement of any implanted device or material. 
     
  (3) Open reduction with internal fixation. 
 
  (A) Impaired function such as shortening or deformity of an arm or leg, limp 
or foot drop. 
   
  (B)  Blood vessel or nerve injury. 
   
  (C) Pain or discomfort. 
   
  (D)  Fat escaping from bone with possible damage to a vital organ. 
   
  (E)  Failure of bone to heal. 
   
  (F) Bone infection. 
   
  (G) Removal or replacement of any implanted device or material. 
     
  (4) Osteotomy. 
 
  (A) Impaired function such as shortening or deformity of an arm or leg, limp 
or foot drop. 
   
  (B) Blood vessel or nerve injury. 
   
  (C)  Pain or discomfort. 
   
  (D) Fat escaping from bone with possible damage to a vital organ. 
   
  (E) Failure of bone to heal. 
   
  (F)  Bone infection. 
   
  (G) Removal or replacement of any implanted device or material. 
     
  (5) Ligamentous reconstruction of joints. 
 
  (A) Failure of reconstruction to work. 
   
  (B) Continued loosening of the joint. 
   
  (C) Degenerative arthritis. 
   
  (D)  Continued pain. 
   
  (E) Increased stiffening. 
   
  (F) Blood vessel or nerve injury. 
   
  (G) Cosmetic and/or functional deformity. 
     
  (6) Children's orthopedics (bone, joint, ligament or muscle). 
 
  (A)  Growth deformity. 
   
  (B) Additional surgery. 
       
  (m) Nervous system treatments and procedures. 
 
  (1) Craniotomy (craniectomy) for excision of brain tissue, tumor, vascular 
malformation and cerebral revascularization. 
 
  (A) Additional loss of brain function including memory. 
   
  (B) Recurrence or continuation of the condition that required this operation. 
   
  (C) Stroke. 
   
  (D) Blindness, deafness, inability to smell, double vision, coordination loss, 
seizures, pain, numbness and paralysis. 
     
  (2) Craniotomy (craniectomy) for cranial nerve operation including neurectomy, 
avulsion, rhizotomy or neurolysis. 
 
  (A)  Numbness, impaired muscle function or paralysis. 
   
  (B) Recurrence or continuation of the condition that required this operation. 
   
  (C)  Seizures. 
     
  (3) Spine operation, including laminectomy, decompression, fusion, internal 
fixation or procedures for nerve root or spinal cord compression; diagnosis; 
pain; deformity; mechanical instability; injury; removal of tumor, abscess or 
hematoma (excluding coccygeal operations). 
 
  (A) Pain, numbness or clumsiness. 
   
  (B) Impaired muscle function. 
   
  (C) Incontinence or impotence. 
   
  (D) Unstable spine. 
   
  (E) Recurrence or continuation of the condition that required the operation. 
   
  (F) Injury to major blood vessels. 
     
  (4) Peripheral nerve operation; nerve grafts, decompression, transposition or 
tumor removal; neurorrhaphy, neurectomy or neurolysis. 
 
  (A) Numbness. 
   
  (B)  Impaired muscle function. 
   
  (C) Recurrence or persistence of the condition that required the operation. 
   
  (D) Continued, increased or different pain. 
     
  (5) Correction of cranial deformity. 
 
  (A)  Loss of brain function. 
   
  (B) Seizures. 
   
  (C) Recurrence or continuation of the condition that required this operation. 
     
  (6)  Transphenoidal hypophysectomy or other pituitary gland operation. 
 
  (A)  Spinal fluid leak. 
   
  (B) Necessity for hormone replacement. 
   
  (C) Recurrence or continuation of the condition that required this operation. 
   
  (D) Nasal septal deformity or perforation. 
     
  (7)  Cerebral spinal fluid shunting procedure or revision. 
 
  (A) Shunt obstruction or infection. 
   
  (B) Seizure disorder. 
   
  (C)  Recurrence or continuation of brain dysfunction. 
       
  (n) Radiology. 
 
  (1) Angiography, aortography, arteriography (arterial injection of contrast 
media-diagnostic). 
 
  (A) Injury to artery. 
   
  (B) Damage to parts of the body supplied by the artery with resulting loss of 
function or amputation. 
   
  (C) Swelling, pain, tenderness or bleeding at the site of the blood vessel 
perforation. 
   
  (D) Aggravation of the condition that necessitated the procedure. 
   
  (E) Allergic sensitivity reaction to injected contrast media. 
     
  (2) Myelography. 
 
  (A) Chronic pain. 
   
  (B) Transient headache, nausea, vomiting. 
   
  (C) Numbness. 
   
  (D) Impaired muscle function. 
     
  (3) Angiography with occlusion techniques-therapeutic. 
 
  (A) Injury to artery. 
   
  (B) Loss or injury to body parts. 
   
  (C) Swelling, pain, tenderness or bleeding at the site of the blood vessel 
perforation. 
   
  (D) Aggravation of the condition that necessitated the procedure. 
   
  (E) Allergic sensitivity reaction to injected contrast media. 
     
  (4) Angioplasty (intravascular dilatation technique). 
 
  (A) Swelling, pain tenderness, or bleeding at the site of vessel puncture. 
   
  (B) Damage to parts of the body supplied by the artery with resulting loss of 
function or amputation. 
   
  (C)  Injury to the vessel that may require immediate surgical intervention. 
   
  (D) Recurrence or continuation of the original condition. 
   
  (E)  Allergic sensitivity reaction to injected contrast media. 
     
  (5)  Splenoportography (needle injection of contrast media into the spleen). 
 
  (A) Injury to the spleen requiring blood transfusion and/or removal of the 
spleen. 
   
  (B) No other risks are assigned at this time. 
       
  (o)  Respiratory system treatments and procedures. 
 
  (1) Excision of lesion of larynx, vocal cords, trachea. No risks or hazards 
assigned at this time. 
   
  (2) Rhinoplasty or nasal reconstruction with or without septoplasty. 
 
  (A) Deformity of skin, bone or cartilage. 
   
  (B)  Creation of new problems, such as septal perforation or breathing 
difficulty. 
     
  (3) Submucous resection of nasal septum or nasal septoplasty. 
 
  (A) Persistence, recurrence or worsening of the obstruction. 
   
  (B) Perforation of nasal septum with dryness and crusting. 
   
  (C) External deformity of the nose. 
       
  (p) Urinary system. 
 
  (1) Partial nephrectomy (removal of part of the kidney). 
 
  (A) Incomplete removal of stone(s) or tumor, if present. 
   
  (B)  Obstruction of urinary flow. 
   
  (C) Leakage of urine at surgical site. 
   
  (D) Injury to or loss of the kidney. 
   
  (E) Damage to adjacent organs. 
     
  (2) Radical nephrectomy (removal of kidney and adrenal gland for cancer). 
 
  (A) Loss of the adrenal gland. 
   
  (B)  Incomplete removal of tumor. 
   
  (C) Damage to adjacent organs. 
     
  (3) Nephrectomy (removal of kidney). 
 
  (A) Incomplete removal of tumor if present. 
   
  (B) Damage to adjacent organs. 
   
  (C)  Injury to or loss of the kidney. 
     
  (4) Nephrolithotomy and pyelolithotomy (removal of kidney stone(s)). 
 
  (A) Incomplete removal of stone(s). 
   
  (B) Obstruction of urinary flow. 
   
  (C) Leakage of urine at surgical site. 
   
  (D) Injury or loss of the kidney. 
   
  (E)  Damage to adjacent organs. 
     
  (5) Pyeloureteroplasty (pyeloplasty or reconstruction of the kidney drainage 
system). 
 
  (A) Obstruction of urinary flow. 
   
  (B) Leakage of urine at surgical site. 
   
  (C)  Injury to or loss of the kidney. 
   
  (D) Damage to adjacent organs. 
     
  (6) Exploration of kidney or perinephric mass. 
 
  (A) Incomplete removal of stone(s) or tumor, if present. 
   
  (B) Leakage of urine at surgical site. 
   
  (C) Injury to or loss of the kidney. 
   
  (D)  Damage to adjacent organs. 
     
  (7) Ureteroplasty (reconstruction of ureter (tube between kidney and 
bladder)). 
 
  (A) Leakage of urine at surgical site. 
   
  (B) Incomplete removal of the stone or tumor (when applicable). 
   
  (C) Obstruction of urine flow. 
   
  (D) Damage to other adjacent organs. 
   
  (E) Damage to or loss of the ureter. 
     
  (8)  Ureterolithotomy (surgical removal of stone(s) from ureter (tube between 
kidney and bladder)). 
 
  (A) Leakage of urine at surgical site. 
   
  (B)  Incomplete removal of stone. 
   
  (C) Obstruction of urine flow. 
   
  (D) Damage to other adjacent organs. 
   
  (E) Damage to or loss of ureter. 
     
  (9) Ureterectomy (partial/complete removal of ureter (tube between kidney and 
bladder)). 
 
  (A) Leakage of urine at surgical site. 
   
  (B) Incomplete removal of tumor (when applicable). 
   
  (C)  Obstruction of urine flow. 
   
  (D) Damage to other adjacent organs. 
     
  (10) Ureterolysis (partial/complete removal of ureter (tube between kidney and 
bladder from adjacent tissue)). 
 
  (A) Leakage of urine at surgical site. 
   
  (B) Obstruction to urine flow. 
   
  (C) Damage to other adjacent organs. 
   
  (D) Damage to or loss of ureter. 
     
  (11)  Ureteral reimplantation (reinserting ureter (tube between kidney and 
bladder) into the bladder). 
 
  (A) Leakage of urine at surgical site. 
   
  (B) Obstruction to urine flow. 
   
  (C) Damage to or loss of ureter. 
   
  (D) Backward flow of urine from bladder into ureter. 
   
  (E)  Damage to other adjacent organs. 
     
  (12) Prostatectomy (partial or total removal of prostate). 
 
  (A) Leakage of urine at surgical site. 
   
  (B) Obstruction to urine flow. 
   
  (C) Incontinence (difficulty with urinary control). 
   
  (D) Semen passing backward into bladder. 
   
  (E) Difficulty with penile erection (possible with partial and probable with 
total prostatectomy). 
     
  (13) Total cystectomy (removal of urinary bladder). 
 
  (A) Probable loss of penile erection and ejaculation in the male. 
   
  (B) Damage to other adjacent organs. 
   
  (C) This procedure will require an alternate method of urinary drainage. 
     
  (14) Partial cystectomy (partial removal of urinary bladder) . 
 
  (A) Leakage or urine at surgical site. 
   
  (B) Incontinence (difficulty with urinary control). 
   
  (C) Backward flow of urine from bladder into ureter (tube between kidney and 
bladder). 
   
  (D)  Obstruction of urine flow. 
   
  (E) Damage to other adjacent organs. 
     
  (15) Urinary diversion (ileal conduit, colon conduit). 
 
  (A)  Blood chemistry abnormalities requiring medication. 
   
  (B)  Development of stones, strictures or infection. 
   
  (C) Routine lifelong medical evaluation. 
   
  (D) Leakage of urine at surgical site. 
   
  (E) Requires wearing a bag for urine collection. 
     
  (16)  Ureterosigmoidostomy (placement of kidney drainage tubes into the large 
bowel). 
 
  (A) Blood chemistry abnormalities requiring medication. 
   
  (B) Development of stones, strictures or infection. 
   
  (C)  Routine lifelong medical evaluation. 
   
  (D) Leakage of urine at surgical site. 
   
  (E) Difficulty in holding urine in the rectum. 
     
  (17) Urethroplasty (construction/reconstruction of drainage tube from 
bladder). 
 
  (A) Leakage of urine at surgical site. 
   
  (B)  Stricture formation. 
   
  (C) Additional operations(s). 
       
  (q)  Psychiatric procedures. 
 
  (1) Electroconvulsive therapy with modification by intravenous muscle 
relaxants and sedatives. 
 
  (A)  Memory changes of events prior to, during, and immediately following the 
treatment. 
   
  (B) Fractures or dislocations of bones. 
   
  (C)  Significant temporary confusion requiring special care. 
     
  (2) Other Procedures. No other procedures are assigned at this time. 
     
  (r)  Radiation therapy. A child is defined for the purpose of this subsection 
as an individual who is not physiologically mature as determined by the 
physician using the appropriate medical parameters. 
 
  (1) Head and neck. 
 
  (A) Early reactions. 
 
  (i) Reduced and sticky saliva, loss of taste and appetite, altered sense of 
smell, nausea. 
   
  (ii)  Sore throat, difficulty swallowing, weight loss, fatigue. 
   
  (iii)  Skin changes: redness, irritation, scaliness, blistering or ulceration, 
color change, thickening, hair loss. 
   
  (iv) Hoarseness, cough, loss of voice, and swelling of airway. 
   
  (v) Blockage and crusting of nasal passages. 
   
  (vi) Inflammation of ear canal, feeling of "stopped up" ear, hearing loss, 
dizziness. 
   
  (vii) Dry and irritable eye(s). 
   
  (viii) In children, these reactions are likely to be intensified by 
chemotherapy before, during or after radiation therapy. 
   
  (ix) In children, depression of blood count leading to increased risk of 
infection and/or bleeding is more common. 
     
  (B) Late reactions. 
 
  (i) Dry mouth and altered sense, or loss, of taste. 
   
  (ii)  Tooth decay and gum changes. 
   
  (iii) Bone damage, especially in jaws. 
   
  (iv) Stiffness and limitation of jaw movement. 
   
  (v) Changes in skin texture and/or coloration, permanent hair loss, and 
scarring of skin. 
   
  (vi) Swelling of tissues, particularly under the chin. 
   
  (vii) Throat damage causing hoarseness, pain or difficulty breathing or 
swallowing. 
   
  (viii)  Eye damage causing dry eye(s), cataract, loss of vision, or loss of 
eye(s). 
   
  (ix) Ear damage causing dryness of ear canal, fluid collection in middle ear, 
hearing loss. 
   
  (x) Brain, spinal cord or nerve damage causing alteration of thinking ability 
or memory, and/or loss of strength, feeling or coordination in any part of the 
body. 
   
  (xi) Pituitary or thyroid gland damage requiring long-term hormone replacement 
therapy. 
   
  (xii) In children, there may be additional late reactions. 
 
  (I)  Disturbance of bone and tissue growth. 
   
  (II) Bone damage to face causing abnormal development. 
   
  (III) Brain damage causing a loss of intellectual ability, learning capacity, 
and reduced intelligence quotient (I. Q.). 
   
  (IV) Second cancers developing in the irradiated area. 
         
  (2)  Central nervous system. 
 
  (A) Early reactions. 
 
  (i)  Skin and scalp reaction with redness, irritation, scaliness, blistering, 
ulceration, change in color, thickening, hair loss. 
   
  (ii)  Nausea, vomiting, headaches. 
   
  (iii) Fatigue, drowsiness. 
   
  (iv) Altered sense of taste or smell. 
   
  (v)  Inflammation of ear canal, feeling of "stopped-up" ear, hearing loss, 
dizziness. 
   
  (vi) Depression of blood count leading to increased risk of infection and/or 
bleeding. 
   
  (vii) In children, these reactions are likely to be intensified by 
chemotherapy before, during or after radiation therapy. 
   
  (viii) In children, depression of blood count leading to increased risk of 
infection and/or bleeding is more common. 
     
  (B) Late reactions. 
 
  (i) Permanent hair loss of variable degrees, altered regrowth, texture and 
color of hair. 
   
  (ii)  Persistent drowsiness and tiredness. 
   
  (iii) Brain damage causing a loss of some degree of thinking ability or 
memory, or personality changes. 
   
  (iv) Scarring of skin. 
   
  (v) Spinal cord or nerve damage causing loss of strength, feeling or 
coordination in any part of the body. 
   
  (vi) Damage to eye(s), or optic nerve(s) causing loss of vision. 
   
  (vii) Ear damage causing dryness of ear canal, fluid collection in middle ear, 
hearing loss. 
   
  (viii) Pituitary gland damage requiring long-term hormone replacement therapy. 
   
  (ix) In children, there may be additional late reactions. 
 
  (I) Disturbances of bone and tissue growth. 
   
  (II) Bone damage to spine, causing stunting of growth, curvature and/or 
reduction in height. 
   
  (III) Bone damage to face, or pelvis causing stunting of bone growth and/or 
abnormal development. 
   
  (IV) Brain damage causing a loss of intellectual ability, learning capacity, 
and reduced intelligence quotient (I.Q.). 
   
  (V) Second cancers developing in the irradiated area. 
         
  (3) Thorax. 
 
  (A)  Early reactions. 
 
  (i) Skin changes: redness, irritation, scaliness, ulceration, change in color, 
thickening, hair loss. 
   
  (ii)  Inflammation of esophagus causing pain on swallowing, heartburn, or 
sense of obstruction. 
   
  (iii) Loss of appetite, nausea, vomiting. 
   
  (iv) Weight loss, weakness, vomiting. 
   
  (v)  Inflammation of the lung with pain, fever and cough. 
   
  (vi)  Inflammation of the heart sac with chest pain and palpitations. 
   
  (vii) Bleeding or creation of a fistula resulting from tumor destruction. 
   
  (viii) Depression of blood count leading to increased risk of infection and/or 
bleeding. 
   
  (ix) Intermittent electric shock-like feelings in the lower spine or legs on 
bending the neck. 
   
  (x) In children, these reactions are likely to be intensified by chemotherapy 
before, during or after radiation therapy. 
   
  (xi) In children, depression of blood count leading to increased risk of 
infection and/or bleeding is more common. 
     
  (B) Late reactions. 
 
  (i) Changes in skin texture and/or coloration, permanent hair loss and 
scarring of skin. 
   
  (ii) Lung scarring or shrinkage causing shortness of breath. 
   
  (iii) Narrowing of esophagus causing swallowing problems. 
   
  (iv) Constriction of heart sac which may require surgical correction. 
   
  (v) Damage to heart muscle or arteries leading to heart failure. 
   
  (vi) Fracture of ribs. 
   
  (vii) Nerve damage causing pain, loss of strength or feeling in arms. 
   
  (viii) Spinal cord damage causing loss of strength or feeling in arms and 
legs, and/or loss of control of bladder and rectum. 
   
  (ix) In children, there may be additional late reactions. 
 
  (I)  Disturbances of bone and tissue growth. 
   
  (II) Bone damage to spine, causing stunting of growth, curvature and/or 
reduction in height. 
   
  (III)  Underdevelopment or absence of development of female breast. 
   
  (IV)  Second cancers developing in the irradiated area. 
         
  (4) Breast. 
 
  (A) Early reactions. 
 
  (i) Skin changes: redness, irritation, scaliness, blistering, ulceration, 
coloration, thickening, and hair loss. 
   
  (ii) Breast changes including swelling, tightness, or tenderness. 
   
  (iii) Inflammation of the esophagus causing pain or swallowing, heartburn, or 
sense of obstruction. 
   
  (iv) Lung inflammation with cough. 
   
  (v) Inflammation of heart sac with chest pain and palpitations. 
     
  (B) Late reactions. 
 
  (i) Changes in skin texture and/or coloration, permanent hair loss, scarring 
of skin. 
   
  (ii) Breast changes including thickening, firmness, tenderness, shrinkage. 
   
  (iii) Swelling of arm. 
   
  (iv) Stiffness and discomfort in shoulder joint. 
   
  (v) Rib or lung damage causing pain, fracture, cough, shortness of breath. 
   
  (vi) Nerve damage causing pain, loss of strength or feeling in arm. 
   
  (vii) Damage to heart muscle or arteries or heart sac leading to heart 
failure. 
       
  (5) Abdomen. 
 
  (A) Early reactions. 
 
  (i) Skin changes: redness, irritation, scaliness, ulceration, coloration, 
thickening, hair loss. 
   
  (ii) Loss of appetite, nausea, vomiting. 
   
  (iii) Weight loss, weakness, fatigue. 
   
  (iv) Inflammation of stomach causing indigestion, heartburn, and ulcers. 
   
  (v) Inflammation of bowel causing cramping and diarrhea. 
   
  (vi) Depression of blood count leading to increased risk of infections and/or 
bleeding. 
   
  (vii) In children, these reactions are likely to be intensified by 
chemotherapy before, during and after radiation therapy. 
   
  (viii) In children, depression of blood count leading to increased risk of 
infection and/or bleeding is more common. 
     
  (B) Late reactions. 
 
  (i) Changes in skin texture and/or coloration, permanent hair loss, scarring 
of skin. 
   
  (ii) Stomach damage causing persistent indigestion, pain, and bleeding. 
   
  (iii) Bowel damage causing narrowing or adhesions of bowel with obstruction, 
ulceration, or bleeding which may require surgical correction, chronic diarrhea, 
or poor absorption of food elements. 
   
  (iv)  Kidney damage leading to kidney failure and/or high blood pressure. 
   
  (v) Liver damage leading to liver failure. 
   
  (vi)  Spinal cord or nerve damage causing loss of strength or feeling in legs 
and/or loss of control of bladder and/or rectum. 
   
  (vii) In children, there may be additional late reactions. 
 
  (I) Disturbances of bone and tissue growth. 
   
  (II) Bone damage to spine causing stunting of growth, curvature and/or 
reduction in height. 
   
  (III) Bone damage to pelvis causing stunting of bone growth and/or abnormal 
development. 
   
  (IV)  Second cancers developing in the irradiated area. 
         
  (6) Female pelvis. 
 
  (A) Early reactions. 
 
  (i) Inflammation of bowel causing cramping and diarrhea. 
   
  (ii) Inflammation of rectum and anus causing pain, spasm, discharge, bleeding. 
   
  (iii) Bladder inflammation causing burning, frequency, spasm, pain, bleeding. 
   
  (iv)  Skin changes: redness, irritation, scaliness, blistering or ulceration, 
coloration, thickening, hair loss. 
   
  (v) Disturbance of menstrual cycle. 
   
  (vi) Vaginal discharge, pain, irritation, bleeding. 
   
  (vii) Depression of blood count leading to increased risk of infection and/or 
bleeding. 
   
  (viii) In children, these reactions are likely to be intensified by 
chemotherapy before, during, or after radiation therapy. 
   
  (ix) In children, depression of blood count leading to increased risk of 
infection and/or bleeding is more common. 
     
  (B) Late reactions. 
 
  (i) Bowel damage causing narrowing or adhesions of the bowel with obstruction, 
ulceration, bleeding, chronic diarrhea, or poor absorption of food elements and 
may require surgical correction or colostomy. 
   
  (ii) Bladder damage with loss of capacity, frequency of urination, blood in 
urine, recurrent urinary infections, pain, or spasm which may require urinary 
diversion and/or removal of bladder. 
   
  (iii) Changes in skin texture and/or coloration, permanent hair loss, scarring 
of skin. 
   
  (iv) Bone damage leading to fractures. 
   
  (v) Ovarian damage causing infertility, sterility, or premature menopause. 
   
  (vi) Vaginal damage leading to dryness, shrinkage, pain, bleeding, or sexual 
dysfunction. 
   
  (vii) Swelling of the genitalia or legs. 
   
  (viii) Nerve damage causing pain, loss of strength or feeling in legs, and/or 
loss of control of bladder or rectum. 
   
  (ix) Fistula between the bladder and/or bowel and/or vagina. 
   
  (x) In children, there may be additional late reactions. 
 
  (I)  Disturbances of bone and tissue growth. 
   
  (II) Bone damage to pelvis and hips causing stunting of bone growth and/or 
abnormal development. 
   
  (III) Second cancers developing in the irradiated area. 
         
  (7)  Male pelvis. 
 
  (A) Early reactions. 
 
  (i) Inflammation of bowel causing cramping and diarrhea. 
   
  (ii) Inflammation of rectum and anus causing pain, spasm, discharge, bleeding. 
   
  (iii)  Bladder inflammation causing burning, frequency, spasm, pain, and/or 
bleeding. 
   
  (iv) Skin changes: redness, irritation, scaliness, blistering or ulceration, 
coloration, thickening, hair loss. 
   
  (v)  Depression of blood count leading to increased risk of infection and/or 
bleeding. 
   
  (vi) In children, these reactions are likely to be intensified by chemotherapy 
before, during or after radiation therapy. 
   
  (vii) In children, depression of blood count leading to increased risk of 
infection and/or bleeding is more common. 
     
  (B) Late reactions. 
 
  (i) Bowel damage causing narrowing or adhesions of the bowel with obstruction, 
ulceration, bleeding, chronic diarrhea, or poor absorption of food elements and 
may require surgical correction or colostomy. 
   
  (ii)  Bladder damage with loss of capacity, frequency of urination, blood in 
urine, recurrent urinary infections, pain, or spasm which may require urinary 
diversion and/or removal of bladder. 
   
  (iii) Changes in skin texture and/or coloration, permanent hair loss, scarring 
of skin. 
   
  (iv)  Bone damage leading to fractures. 
   
  (v) Testicular damage causing reduced sperm counts, infertility, sterility, or 
risk of birth defects. 
   
  (vi) Impotence (loss of erection) or sexual dysfunction. 
   
  (vii) Swelling of the genitalia or legs. 
   
  (viii) Nerve damage causing pain, loss of strength or feeling in legs, and/or 
loss of control of bladder or rectum. 
   
  (ix) Fistula between the bowel and other organs. 
   
  (x) In children, there may be additional late reactions. 
 
  (I) Disturbances of bone and tissue growth. 
   
  (II)  Bone damage to pelvis and hips causing stunting of bone growth and/or 
abnormal development. 
   
  (III) Second cancers developing in the irradiated area. 
         
  (8) Skin. 
 
  (A) Early reactions. 
 
  (i)  Redness, irritation, or soreness. 
   
  (ii) Scaliness, ulceration, crusting, oozing, discharge. 
   
  (iii) Hair loss. 
   
  (iv) These reactions are likely to be intensified by chemotherapy. 
     
  (B) Late reactions. 
 
  (i) Changes in skin texture causing scaly or shiny smooth skin, thickening 
with contracture, puckering, scarring of skin. 
   
  (ii) Changes in skin color. 
   
  (iii) Prominent dilated small blood vessels. 
   
  (iv) Permanent hair loss. 
   
  (v)  Chronic or recurrent ulcerations. 
   
  (vi) Damage to adjacent tissues including underlying bone or cartilage. 
   
  (vii) In children, second cancers may develop in the irradiated area. 
       
  (9) Extremities. 
 
  (A) Early reactions. 
 
  (i) Skin changes: redness, irritation, scaliness, ulceration, coloration, 
thickening, hair loss. 
   
  (ii) Inflammation of soft tissues causing tenderness, swelling, and 
interference with movement. 
   
  (iii) Inflammation of joints causing pain, swelling and limitation of joint 
motion. 
   
  (iv) In children, these reactions are likely to be intensified by chemotherapy 
before, during or after radiation therapy. 
   
  (v) In children, depression of blood count leading to increased risk of 
infection and/or bleeding is more common. 
     
  (B) Late reactions. 
 
  (i) Changes in skin reaction and/or coloration, permanent hair loss and 
scarring of the skin. 
   
  (ii)  Scarring or shrinkage of soft tissues and muscle causing loss of 
flexibility and movement, swelling of the limb. 
   
  (iii) Nerve damage causing loss of strength, feeling or coordination. 
   
  (iv)  Bone damage causing fracture. 
   
  (v) Joint damage causing permanent stiffness, pains and arthritis. 
   
  (vi) Swelling of limb below the area treated. 
   
  (vii) In children, there may be additional late reactions. 
 
  (I) Disturbances of bone and tissue growth. 
   
  (II) Bone damage to limbs causing stunting of bone growth and/or abnormal 
development. 
   
  (III) Second cancers developing in the irradiated area. 
         
  (10) Total body irradiation. 
 
  (A) Early reactions. 
 
  (i) Loss of appetite, nausea, vomiting. 
   
  (ii)  Diarrhea. 
   
  (iii) Reduced and sticky saliva, swelling of the salivary gland(s), loss of 
taste. 
   
  (iv) Hair loss. 
   
  (v)  Sore mouth and throat, difficulty swallowing. 
   
  (vi)  Permanent destruction of bone marrow leading to infection, bleeding, and 
possible death. 
   
  (vii) Inflammation of the lung with fever, dry cough and difficulty breathing 
with possible fatal lung failure. 
   
  (viii) Damage to liver with possible fatal liver failure. 
   
  (ix) In children, these reactions are likely to be intensified by chemotherapy 
before, during or after radiation therapy. 
   
  (x) In children, depression of blood count leading to increased risk of 
infection and/or bleeding is more common. 
     
  (B) Late reactions. 
 
  (i)  Lung scarring causing shortness of breath, infection, and fatal lung 
failure. 
   
  (ii) Cataract formation in the eyes, possible loss of vision. 
   
  (iii) Testicular damage in males causing sterility. 
   
  (iv) Ovarian damage in females causing premature menopause and sterility. 
   
  (v) Increased risk of second cancer. 
 
           
  sec.601.3. Procedures Requiring No Disclosure-List B. 
 
  (a)  Anesthesia. 
 
  (1) Local. 
   
  (2) Other forms of regional anesthesia. 
     
  (b) Cardiovascular system. 
 
  (1) Excision and ligation of varicose veins of the leg. 
   
  (2) No other procedures are assigned at this time. 
     
  (c) Digestive system. 
 
  (1)  Appendectomy. 
   
  (2) Hemorrhoidectomy with fistulectomy or fissurectomy. 
   
  (3) Hemorrhoidectomy. 
   
  (4) Incision or excision of perirectal tissue. 
   
  (5) Local excision and destruction of lesion, anus and rectum. 
   
  (6) Operations for correction of cleft palate. 
   
  (7) Repair of inguinal hernia. 
   
  (8) Repair and plastic operations on anus and rectum. 
   
  (9) Resection of colon (segmental). 
   
  (10) Tonsillectomy with adenoidectomy. 
   
  (11) Tonsillectomy without adenoidectomy. 
     
  (d) Ear. 
 
  (1) Myringotomy. 
   
  (2)  Reconstruction of auricle of ear for skin cancer. 
   
  (3)  Tympanoplasty without mastoidectomy. 
     
  (e) Endocrine system. No procedures assigned at this time. 
   
  (f) Eye. 
 
  (1)  Administration of topical, parenteral (such as IV), or oral drugs or 
pharmaceuticals, including, but not limited to, fluorescein angiography, orbital 
injection or periocular injections. 
   
  (2) Removal of extraocular foreign bodies. 
   
  (3) Chalazion excision. 
     
  (g)  Female genital system. No procedures assigned at this time. 
   
  (h)  Hematic and lymphatic system. 
 
  (1) Biopsy of lymph nodes. 
   
  (2)  Other procedures. No other procedures are assigned at this time. 
     
  (i)  Integumentary system. 
 
  (1) Biopsy of breast. 
   
  (2) Cutting and preparation of skin grafts or pedicle flaps. 
   
  (3) Removal or treatment of local skin or subcutaneous lesion. 
   
  (4) Excision of pilonidal sinus or cyst. 
   
  (5) Suture of skin. 
   
  (6) Wide or radical excision of skin lesion with or without graft. 
   
  (7) Z plasty without excision. 
   
  (8) Biopsy of skin or mucus membrane. 
   
  (9)  Incision and drainage of skin or mucus membrane lesion. 
   
  (10)  Debridement of ulceration of the skin. 
     
  (j) Male genital system. 
 
  (1) Biopsy of testicle. 
   
  (2) Placement of testicular prosthesis. 
   
  (3) Hydrocelectomy (removal/drainage of cyst in scrotum). 
   
  (4) Circumcision. 
   
  (5) Cystoscopy. 
     
  (k) Maternity and related cases. No procedures assigned at this time. 
   
  (l)  Musculoskeletal system. 
 
  (1) Arthrotomy. 
   
  (2) Closed reduction without internal fixation. 
   
  (3) Excision of lesion, muscle, tendon, fascia, bone. 
   
  (4) Excision of semilunar cartilage of knee joint. 
   
  (5) Needle biopsy or aspiration, bone marrow. 
   
  (6)  Partial excision of bone. 
   
  (7) Removal of internal fixation device. 
   
  (8) Traction or fixation without manipulation for reduction. 
     
  (m) Nervous system. 
 
  (1) Cranioplasty. 
   
  (2) Lumbar puncture. 
   
  (3) Closure of meningomyelocele. 
   
  (4)  Ventriculostomy with or without air ventriculogram. 
   
  (5) Cisternal puncture (diagnostic). 
   
  (6) Craniectomy or craniotomy for intracranial hematoma, abscess or 
penetrating injury. 
   
  (7) Stereotactic surgery for dystonia. 
   
  (8) Insertion of skeletal tongs. 
   
  (9) Intravenous cut-down. 
   
  (10) Elevation of depressed skull fracture. 
   
  (11)  Cervical 1-2 puncture (diagnostic). 
     
  (n) Radiology. 
 
  (1)  Injection of contrast media or imaging media into the spinal canal for 
diagnostic encephalography and/or cisternography. 
   
  (2) Intravascular infusion technique-therapeutic. 
   
  (3) Lymphangiography. 
   
  (4)  Percutaneous transhepatic (liver) catheter placement. 
   
  (5)  Discography. 
   
  (6) Venography (Venogram) with contrast media. 
   
  (7) Cholangiography with contrast media. 
   
  (8) Urography (IVP) with contrast media. 
   
  (9) Digital Subtraction Angiography with contrast media. 
   
  (10) Radionuclide scans and/or blood flow studies. 
   
  (11) Gastrointestinal (G.I.) tract radiography and fluoroscopy. 
   
  (12) Oral cholecystography. 
   
  (13) Fistula or sinus tract injection. 
   
  (14) Sialography. 
   
  (15) Dacryocystography. 
   
  (16) Cystography, cystourethrography. 
   
  (17) Retrograde and antegrade urography. 
   
  (18) Larynogography, bronchography. 
   
  (19) Hysterosalpingography. 
   
  (20) E.R.C.P. (Endoscopic retrograde cholangio pancreatography). 
   
  (21) Galactography. 
   
  (22) T-tube cholangiography. 
   
  (23) Skeletal radiography and/or fluoroscopy (skull, mastoids, sinuses and 
facial bones; spine, ribs, pelvis; extremities). 
   
  (24) Foreign body radiography and/or fluoroscopy. 
   
  (25) Chest and abdomen radiography and fluoroscopy. 
   
  (26) Portable radiography/fluoroscopy. 
   
  (27) Pelvimetry, fetogram. 
   
  (28) Computer tomography scan with and without contrast media. 
   
  (29) Ultrasound and Doppler studies. 
   
  (30) Laminography, polytomography. 
   
  (31) Soft-tissue radiography including xerography and zeromammography. 
   
  (32) Kidney or bile duct stone manipulation through percutaneous tube or tube 
tract. 
   
  (33) Pacemaker lead placement. 
   
  (34) Arthrography. 
   
  (35) Percutaneous nephrostogram and/or internal stint or external drainage of 
the kidney. 
   
  (36) Percutaneous transhepatic cholangiogram and/or internal stint or external 
drainage of the liver. 
   
  (37) Percutaneous abscess drainage. 
     
  (o) Respiratory system. 
 
  (1) Aspiration of bronchus. 
   
  (2) Biopsy of lesion of larynx, trachea, bronchus, esophagus. 
   
  (3) Lung biopsy. 
   
  (4) Needle biopsy, lung. 
   
  (5) Segmental resection of lung. 
   
  (6)  Thoracotomy. 
   
  (7) Thoracotomy with drainage. 
   
  (8)  Reduction of nasal fracture. 
   
  (9) Tracheostomy. 
     
  (p)  Urinary system. 
 
  (1) Nephrotomy (placement of drainage tubes). 
   
  (2) Biopsy of prostrate, bladder or urethra. 
   
  (3)  Cystolithotomy (surgical removal of stone(s) from the bladder). 
   
  (4)  Cystolitholapaxy (cystoscopic crushing and removal of bladder stone(s)). 
   
  (5) Cystostomy (placement of tube into the bladder). 
   
  (6)  Urethrotomy (incision of the urethra). 
   
  (7) Diverticulectomy of the bladder (removal of outpouching of the bladder). 
   
  (8)  Diverticulectomy or diverticulotomy of the urethra (repair or drainage of 
outpouching of the urethra). 
 
  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 September 11, 1995. 
 TRD-9511686 
  John Yatsu, M.D. 
 Chairman 
 Texas Medical Disclosure Panel 
    Effective date: October 3, 1995 
 Proposal publication date: April 7, 1995 
 For further information, please call: (512) 458-7236 
         
             
  25 TAC sec.601.7 
 
  The Texas Medical Disclosure Panel (panel) adopts new sec.601.7, relating to 
informed consent for electroconvulsive therapy, without changes to the proposed 
text as published in the May 12, 1995, issue of the Texas Register (20 TexReg 
3559), and therefore will not be republished. 
 The new section addresses consent to electroconvulsive therapy as required by 
the Health and Safety Code (HSC), sec.578.003. HSC, sec.578.003 requires the 
Texas Department of Mental Health and Mental Retardation (MHMR) to adopt a 
written consent form for electroconvulsive therapy. In addition to the 
information required by sec.578.003, the form must include the information 
required by the panel for electroconvulsive therapy. HSC,  sec.578.003 states 
that use of the consent form prescribed by MHMR in the manner prescribed by HSC, 
sec.578.003 creates a rebuttal presumption that the disclosure requirements of 
the Medical Liability and Insurance Improvement Act of Texas, Texas Civil 
Statutes, Article 4590i, sec.6.05 and sec.6.06 have been met. 
 The new section states that if the MHMR consent form for electroconvulsive 
therapy is in compliance with the HSC, sec.578.003 and contains the minimum 
information required by the panel, a physician or health care provider using the 
MHMR form for electroconvulsive therapy is not required also to use the panel's 
disclosure and consent form. The section also states that it does not constitute 
approval of the MHMR current form or of MHMR's assessment of the risks and 
hazards associated with electroconvulsive therapy. The intent of this section is 
to clarify the issue which has arisen as to whether a physician or health care 
provider must use both forms or may use only the MHMR form. 
 The Texas Department of Health did not receive any comments concerning the new 
section during the 30-day comment period. 
 The new section is adopted under the Medical Liability and Insurance 
Improvement Act of Texas, Texas Civil Statutes, Article 4590i, sec.6.04, which 
authorizes the panel to prepare lists of the medical treatments and surgical 
procedures that do and do not require disclosure by physicians and health care 
providers of the possible risks and hazards and to prepare the form for the 
treatments and procedures which do require disclosure. 
 
  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 September 11, 1995. 
 TRD-9511687 
  John Yatsu, M.D. 
 Chairman 
 Texas Medical Disclosure Panel 
    Effective date: October 3, 1995 
 Proposal publication date: May 12, 1995 
 For further information, please call: (512) 458-7236 
         
               
  TITLE 28. INSURANCE 
 Part I. Texas Department of Insurance 
  Chapter 19. Agent's Licensing 
  
  Subchapter H. Variable Contract Agents 
 
  28 TAC sec.19.701, sec.19.702 
 
  The Commissioner of Insurance adopts amendments to sec.19.701 and sec.19. 702, 
concerning the licensing of variable contract agents, with changes to the 
proposed text as published in the May 12, 1995, issue of the Texas Register  (20 
TexReg 3561). 
 The amendments of sec.19.701 and sec.19.702 will enable the Texas Department of 
Insurance (department) to exempt from securities examination those variable 
contract agents who sell products which are exempt from registration under state 
and federal securities law. The amendment will bring the department's rules into 
conformity with those securities laws. In response to comments, several changes 
were made to sec.19.701. Language was added to subsection (b) of sec.19.701 to 
clarify that agents who sell to qualified plans are exempt from both examination 
requirements listed in subsection (a). A new subsection (c) of sec.19.701 was 
added, which provides an exemption from state securities laws examination for 
variable contract agents whose sales are limited to variable contracts. The 
language of subsection (d) was moved from subsection (b) of sec.19.701, and 
changed to require an applicant claiming exemptions under subsections (b) or (c) 
to so certify on the application. Old subsection (d) of sec.19.701 was 
relettered as subsection (e). 
 Amended sec.19.701 and sec.19.702 set out the circumstances under which certain 
applicants for licensure as variable contract agents are eligible for exemption 
from the examination requirements listed in sec.19.701(a). Subsections (b) and 
(c) of sec.19.701 set out the bases for exemption from the securities 
examination requirement. Subsection (d) of sec.19.701 requires an applicant 
claiming an exemption from testing to so certify on the application. Subsection 
(e) of sec.19.701 provides that an applicant for an original license or renewal 
of a license (applicant), must state whether any administrative or judicial 
action has been taken against the individual by any insurance or securities 
regulatory agency or any securities industry association. Section 19.702 states 
that certification of successful completion of the securities examination 
required in sec.19.701 meets the examination requirements of the department. 
 For: Nationwide Life Insurance Company, Investment Product Operations. For with 
changes: Variable Annuity Life Insurance Company. For with changes: Principal 
Mutual Life Insurance Company. 
 Comment: One commenter provided general support for the amended sections, 
stating that they bring the department's rules into conformity with state and 
federal law, while continuing to protect Texas citizens. 
 Agency Response: The department agrees. 
 Comment: Another commenter supports the amendment, but suggests adding an 
additional subsection which would exempt certain applicants from taking either a 
state securities law examination administered by the State Securities Board, or 
the Uniform Agents State Law Examination (USASLE) Series 63. The commenter 
proposes that this exemption apply to any applicant whose sales are limited to 
variable contracts. 
 Agency Response: The department agrees with the exemption proposed by the 
commenter. The suggested change has been made. 
 Comment: One commenter requested that language be added to sec.19.701(b) to 
clarify that an agent selling to qualified plans are exempt from both exam 
requirements listed in subsection (a). 
 Agency Response: The department agrees. The suggested clarification has been 
made. 
 The amendments are adopted pursuant to the Insurance Code, Articles 3.75 and 
1.03A, and the Government Code, sec.sec.2001.004 et seq (Administrative 
Procedure Act). Article 3.75 authorizes the Texas Department of Insurance to 
establish fair and reasonable rules, regulations, or limitations for the 
augmentation and implementation of the article. Article 1.03A provides that the 
Commissioner of Insurance may adopt rules and regulations to execute the duties 
and functions of the Texas Department of Insurance. The Government Code, 
sec.sec.2001.004 et seq authorize and require each state agency to adopt rules 
of practice setting forth the nature and requirements of available procedures 
and to prescribe the procedures for adoption of rules by a state agency. 
 
 
  sec.19.701. Variable Contract Agent's License. 
 
  (a) As a condition of licensure, an individual, partnership, or corporation 
acting as a variable contract agent (agent) must hold a valid life insurance 
agent's license issued under authority of the Insurance Code, Article 21.07-1. 
Additionally, an individual, as a condition for licensure as a variable contract 
agent, must meet the following requirements: 
 
  (1)-(2) (No change.) 
     
  (b) Notwithstanding subsection (a), no securities examination listed in 
subsection (a)(1) or securities law examination listed in subsection (a)(2) 
shall be required as a condition for licensure as a variable contract agent for 
any individual whose variable contract sales are limited to variable annuity 
contracts sold to: 
 
  (1) a stock bonus, pension or profit sharing plan which meets the requirements 
for qualification under Section 401 of the Internal Revenue Code of 1986; 
   
  (2) an annuity plan which meets the requirements for the deduction of the 
employer's contributions under sec.404(a)(2) of such Code; or 
   
  (3) a governmental plan as defined in sec.414(d) of such Code. 
     
  (c) Notwithstanding subsection (a) of this section, neither the examination on 
state securities law, or the Uniform Securities Agents State Law Examination 
(USASLE) Series 63 shall be required as a condition for licensure as a variable 
contract agent for any individual whose sales are limited to variable contracts. 
   
  (d) Applicants claiming an exemption from examination under subsections (b) or 
(c) shall so certify on the application. 
   
  (e) Upon application for an initial license or for renewal of license, an 
agent shall state whether any insurance or securities regulatory agency or any 
securities industry association, including the National Association of 
Securities Dealers or any recognized stock exchange has, at any time prior to 
the filing of the application or renewal application, taken any judicial or 
administrative action against the agent. 
 
     
  sec.19.702. Examination.  Certification of successful completion of the 
securities examinations as required in sec.19.701 of this title (relating to 
Variable Contract Agent's License) is sufficient to meet the examination 
requirements of the Texas Department of Insurance. 
 
  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 September 12, 1995. 
 TRD-9511708 
  Alicia M. Fechtel 
 General Counsel and Chief Clerk 
 Texas Department of Insurance 
    Effective date: October 3, 1995 
 Proposal publication date: May 12, 1995 
 For further information, please call: (512) 463-6327 
         
               Part II. Texas Workers' Compensation Commission 
  Chapter 126. General Provisions Applicable to All Benefits 
  
  28 TAC sec.126.10 
 
  The Texas Workers' Compensation Commission (the commission) adopts new 
sec.126.10, with changes to the proposed text as published in the March 21, 
1995, issue of the Texas Register (19 TexReg 2023). The commission is 
simultaneously adopting an amendment to sec.130.6, concerning designated doctor 
general provisions. The majority of the changes were made in response to public 
comment and testimony received at a public hearing held on May 3, 1995. Changes 
made in response to public comment are described in the summary of comments 
portion of this preamble. Other changes made were for clarification or to 
correct typographical or grammatical errors and are as follows. 
 The commission has clarified the meaning of the term "party" by adding the 
following definition to subsection (a)(6), "Any of the following entities 
including any of their agents or representatives: the insurance carrier, health 
care provider (including designated doctor and treating doctor), injured 
employee, or employer." The commission has clarified subsection (a)(1) by adding 
the following phrase taken from the statutory definition of designated doctor 
"and make recommendations" following the phrase, "perform medical evaluations". 
 The commission changed subsection (b)(5) to allow 48 hours rather than 24 hours 
to notify the commission field office of a disqualifying association. The 
commission has added the following statement to subsection (b)(8), "not self-
refer for treatment or become the injured employee's treating doctor for the 
medical condition evaluated by the designated doctor.", as this will assist in 
ensuring an unbiased designated doctor determination of maximum medical 
improvement (MMI) and impairment rating (IR). Noncompliance by a designated 
doctor could warrant suspension and/or removal from the designated doctor list. 
The commission has clarified the requirement for a designated doctor to comply 
with all provisions of this rule and sec.130.6 in subsection (b)(6) by adding 
the phrase, "this section and" before the reference to sec.130. 6. In addition, 
the word "doctor" has been pluralized in subsection (b)(6). The term "medical" 
has been deleted from subsection (b)(7) to include all doctor types since 
doctors of chiropractic don't have medical practices. 
 The commission has clarified requirements for completion and filing of the 
Designated Doctor List Application by revising the first sentence in subsection 
(c) as follows, "Doctors may request to be on the Designated Doctor List by 
filing with the division form TWCC-72, Designated Doctor List Application, in 
the form and manner prescribed by the commission." The word "will" has been 
replaced with "shall" in subsection (c) to be consistent with rule making 
requirements established by the Texas Register. 
 The commission has clarified subsection (d)(7) by adding the word "doctor's" in 
front of the phrase "licensing body" to ensure that staff evaluates disciplinary 
actions from all appropriate licensing bodies. 
 The commission has added the reference to sec.130.6 in subsection (f)(2) in 
addition to sec.130.1 because of the reference to filing the TWCC-69 which 
appears in that rule. In addition, the phrase "or incomplete" has been added to 
this subsection to help ensure that the forms submitted to the commission are 
timely and complete. This clarifies what is required. The commission has 
clarified subsection (f)(7) by rewording the section to prohibit the "submission 
of an inaccurate or inappropriate impairment rating" rather than "failure to 
examine and analyze" testing results. This will provide a standard that is more 
easily enforced. The commission has modified the sentence structure of 
subsection (f)(4) and (5) by replacing the statements, "misrepresenting or 
omitting", with "misrepresentation or omission of". 
 The commission has substituted the word "shall" for "will" throughout 
subsection (g) for consistency with the other references in this rule. The 
commission has clarified subsection (g) by replacing "suspension" with 
"temporary suspension" to ensure that doctors are not put on a permanent 
suspension without first being afforded the opportunity to rebut the reasons for 
suspension and having the division consider the rebuttal. Subsection (g)(4) has 
been modified to require the doctor to submit a signed, completed Designated 
Doctor List application, (TWCC-72), when requesting reinstatement to ensure the 
doctor agrees with all the requirements for being a designated doctor. 
 The new rule establishes: a list of doctors approved by the commission and 
afforded the privilege to perform medical evaluations to make recommendations 
for resolution of disputes regarding certification of maximum medical 
improvement and/or assignment of impairment rating. This process of training and 
qualifying designated doctors allows the commission to assemble and maintain a 
pool of highly qualified designated doctors. Because the medical opinion of a 
designated doctor is given presumptive or conclusive weight in dispute 
resolution, it is important that the doctor be well-trained in the certification 
of maximum medical improvement and assignment of impairment ratings. It is also 
important that the doctor be trained in use of the 3rd edition of the AMA Guides 
to Impairment. The statute mandates use of the 3rd edition, which is different 
from the most recent version adopted by the AMA. The requirement of commission-
approved training for designated doctors will result in superior medical 
evaluation of an injured employee. A designated doctor's assessment impacts all 
parties to a workers' compensation case. The payment of temporary income 
benefits ceases when the injured employee reached maximum medical improvement. 
Impairment income benefits are paid based upon assignment of an impairment 
rating, and the percentage of impairment is determinative of whether 
supplemental income benefits are paid. Accurate, timely and unbiased medical 
evaluations by well-trained, impartial designated doctors are therefore 
essential to preserve the integrity and trust of the designated doctor system 
and balance the interests of all parties. Time frames for new rule will expedite 
the dispute resolution process and provisions defining and prohibiting 
disqualifying associations will prevent conflicts of interest between the doctor 
and the injured employee. 
 The new rule requires designated doctors to be active on the Approved Doctor 
List as well as have commission-approved training in the assignment of 
impairment ratings. It requires doctors to apply to the commission for addition 
to the list of designated doctors and establishes specific criteria for 
approval, suspension, and removal from the Designated Doctor List. The rule 
lists items the division may consider in adding, deleting, or suspending a 
doctor from the Designated Doctor List and allows a waiver of requirements for 
an out of state doctor to serve as a designated doctor. Doctors recommended for 
removal or suspension from the Designated Doctor List will be given notice of 
the reasons for the removal or suspension and an opportunity to rebut those 
reasons. This process affords a doctor any due process which may be required for 
withdrawal of such a privilege while also ensuring that the commission has 
considered the available information. 
 Designated doctors are required by the rule to comply with a list of criteria 
which include the provisions of sec.130.6 of this title (relating to Designated 
Doctor: General Provisions) and are required to adhere to time limits set in the 
rule for scheduling and rescheduling appointments. These time limits provide the 
framework for timely dispute resolution, which facilitates the employee's 
receipt of appropriate benefits. Section 126.10 also establishes a three year 
active practice criteria for designated doctors, which will assure that the 
designated doctor is up-to-date on the latest medical developments, have a 
working knowledge of medical treatments and diagnoses, and have similar 
experience as the treating doctor. The new rule prohibits self-referral of an 
employee for treatment, to avoid a conflict of interest between the designated 
doctor and the employee. SUMMARY OF COMMENTS AND RESPONSES are as follows. 
 Comments on the proposed new rule were received from: Texas Healthcare System; 
Straughan Abrams Management Services, Inc.; Texas Orthopedics, Sports and 
Rehabilitation Associates; Professional Medical Services; Texas Medical 
Association; Texas Workers' Compensation Insurance Fund; Alliance of American 
Insurers; Sports and Spine Association; American Insurance Association; 
Travelers Insurance; and four individuals. 
 Testimony regarding the proposed new rule was received at the May 3, 1995 
public hearing from: Disability Evaluation Center; Impairment Rating Facts; the 
Texas Chiropractic Association; Hammerman and Gainer; the Texas Workers' 
Compensation Insurance Fund; the Alliance of American Insurers; Sports and Spine 
Associates; the Texas Medical Association; the American Insurance Association; 
Phillip and Akers; Sedgewick Claims Management Services; and six individuals. 
 All commenters were generally in support of the proposal, while making 
suggestions for some revisions. 
 The following comments were received regarding subsection (a). 
 COMMENT: One commenter recommended that the most recently published AMA Guide 
be used. 
 COMMENT: Another commenter stated that the AMA Guide is really not a very good 
guide and needs to be changed. 
 COMMENT: A third commenter stated that the commission should think seriously 
about upgrading to the fourth edition of the Guides. 
 RESPONSE: The commission disagrees. The Texas Labor Code, sec.408.124 (relating 
to Impairment Rating Guidelines), mandates that, "(b) The commission shall use 
for determining the existence and degrees of an employee's impairment Guides to 
the Evaluation of Permanent Impairment, third edition, second printing, dated 
February 1989, published by the American Medical Association." 
 The following comments were received regarding subsection (b). 
 COMMENT: Several commenters agreed that "commission approved training in the 
assignment of impairment ratings would be an excellent idea." 
 RESPONSE: The commission agrees that commission-approved training is necessary 
for designated doctors. 
 COMMENT: One commenter agreed that the proposed rule for required training is 
"greatly needed" and recommended a qualifying written examination be added to 
the requirements. 
 COMMENT: Another commenter requested that a written examination could be mailed 
instead of requiring attendance at a training. 
 COMMENT: A third commenter agreed with the training requirement in subsection 
(b)(2), but disagreed that the cost will be minimal to attend such training. 
 RESPONSE: The commission agrees with the necessity of a written examination and 
has modified subsection (b)(2) to add this requirement for designated doctors. A 
group of health care providers including doctors and other providers has been 
organized to develop recommendations for a commission-approved curriculum for 
the impairment rating training which will include a written examination. 
 The commission disagrees that the examination could be mailed since the 
training and therefore the examination will include many hands-on activities. 
The commission will continually monitor the vendors to ensure the costs are not 
excessive and primarily cover the expenses of the training. 
 COMMENT: One commenter recommended training one time over a five- to ten-year 
period, as opposed to every two years as specified in sec.126.10(b); and 
inquired where the training will be held. 
 COMMENT: Another commenter recommended training be required every four years 
instead of every two years since the designated doctor's skills and accuracy 
should improve with experience. 
 COMMENT: A third commenter recommended deletion of the two year retraining 
requirement. 
 COMMENT: A fourth commenter remarked that the first training class was done 
over two years ago and those doctors who attended the first training will 
already be up for renewal. 
 RESPONSE: The commission disagrees that the two-year training timeframe should 
be modified. Continuing education is a key component for health care providers 
to maintain medical licensure. The commission is in the process of developing a 
core curriculum which will be taught at the impairment rating training. In 
addition, the two-year timeframe is critical for the first few years since the 
training will provide the opportunity to update doctors on the latest changes 
and decisions relating to impairment rating assignment. The training courses 
will continue to be offered in cities throughout the state. 
 The commission agrees with the commenter's concept that according to the new 
rule previously trained doctors may be up for renewal and has added (b)(2) (ii) 
to the rule, providing that previously trained doctors be "grandfathered" and 
that their training timeframe start from the latest training they attended. In 
addition, these doctors will be required to pass the impairment rating training 
written examination within the timeframe specified by the Medical Review 
Division in order to remain active on the Designated Doctor List. The wording 
for subsection (b)(2) has been changed as follows: 
 "(2) meet the following training requirements: 
 i. have successfully completed commission-approved training in the proper use 
of the AMA Guides prior to submission of an application; 
 ii. successfully complete commission-approved training at least every two years 
from the date of the last training as required in subsection (b)(2)(i); and 
 iii. have passed the commission-approved written examination for impairment 
rating training within the timeframe as specified by the Division." 
 COMMENT: A commenter recommended establishing a process for determining who can 
be a vendor for the additional training. 
 RESPONSE: The commission agrees, although it would not be appropriate to 
include in this rule. A group of health care providers has been organized to 
develop recommendations for a commission-approved curriculum for the impairment 
rating training. The commission will establish procedures for approving vendors 
who agree to follow the training requirements as specified in the impairment 
rating training core curriculum. 
 COMMENT: Several commenters recommended increasing time for setting appointment 
from 14 days to 21, 28 or 30 days because a doctor can be removed from the 
Designated Doctor list for multiple refusals to meet this timeframe. 
 RESPONSE: The commission agrees that the 14 day timeframe from the Commission 
notice to the designated doctor examination is too restrictive. The Commission 
has established a window of time for the examination to occur from when the 
commission processes a notice of the dispute. Upon notice of the dispute, staff 
will concurrently begin the designated doctor appointment process and coordinate 
with the carrier and injured worker for possible agreement on a designated 
doctor. This concurrent running of timeframes will save ten days in the overall 
process. If the parties agree on a designated doctor, the commission will 
terminate the commission selected designated doctor process. 
 The proposed rules, sec.130.6 and sec.126.10, both refer to sec.130.4 and 
sec.130.5 for the timeframes for setting an appointment (currently 14 days). The 
commission has moved the timeframes which apply to designated doctors to 
sec.130.6 and sec.126.10 which specifically address the designated doctor list 
and responsibilities. In addition, the timeframe for setting appointments has 
been changed from 14 days to appointments occurring no earlier than 14 days and 
not later than 24 days from the date of the commission order assigning a 
designated doctor and setting an appointment. This change would be included in 
sec.130.6(a) and (d) and then sec.126.10(b)(3) would refer to sec.130.6. 
 COMMENT: One commenter supported the proposed changes to subsection (b) and 
believed training is essential and will result in better medical evaluations of 
injured employees. The commenter recommended adding the following requirements 
to subsection (b): 
 be actively practicing in their specialty for a minimum of five years; 
 be residency trained and board certified in their specialty, if a medical 
doctor or a doctor of osteopathy; and, 
 be surgically trained and board certified, if a podiatrist. 
 COMMENT: Other commenters requested that designated doctors maintain an active 
practice. 
 COMMENT: Several commenters felt that, in general, the new provisions are 
setting a very high standard for designated doctors which will preclude them 
from also having an active office practice and that continued active patient 
care is essential for qualified objective designated doctors. 
 RESPONSE: The commission disagrees with establishing additional requirements 
for board certification for medical doctors, osteopathic doctors, and 
podiatrists since the requirements cannot apply to all doctor groups. 
 The commission agrees that all designated doctors must have been actively 
practicing and has included a provision requiring active practice for at least 
the past three years and maintain an active treatment practice. This will allow 
the designated doctor to be up-to-date on the latest medical developments, have 
a working knowledge of medical treatments and diagnosis, and to have similar 
qualifications as the treating doctors. The commission has added the following 
wording as subsection (b)(7): "have maintained for the past three years and 
continue to maintain routine office hours for the treatment of patients in an 
active practice"; 
 The commission disagrees that the proposed rule will prevent designated doctors 
from having an active practice since the scheduling of appointments will be on a 
rotating basis to equally distribute designated doctor appointments and prevent 
the overuse of a particular doctor. 
 COMMENT: One commenter stated that as a doctor of chiropractic, he would not 
feel confident evaluating body systems outside of the neuro-musculoskeletal 
system and recommended that a designated doctor have experience in the area 
being evaluated and a minimum number of years of experience in private practice. 
 RESPONSE: The commission agrees in part and disagrees in part. Active practice 
in treating patients is valuable experience for designated doctors and a 
requirement has been added that a designated doctor be actively practicing for a 
minimum of three years and maintain an active practice. In addition, designated 
doctors will be required to successfully complete commission-approved training 
and should be capable of evaluating most body systems covered in the AMA Guides. 
House Bill 1089 amends the Texas Labor Code sec.408.122 to require, to the 
extent possible, a designated doctor be in the same discipline and licensed by 
the same board of examiners as the employee's doctor of choice, which will 
minimize the commenter's concern. sec.130.6(b)(4) includes this same provision, 
but the commission disagrees that the rule should make experience in the area 
being evaluated a mandatory requirement. 
 COMMENT: Several commenters questioned the vagueness of "commission-approved 
training" and what AMA authority would be used to teach the training. Although 
the commenters supported the concept of training, they believe that the medical 
community needs to be involved in establishing curriculum. 
 COMMENT: Another commenter expressed a hope that TMA would remain active in the 
training process. 
 COMMENT: Another commenter stated that better education is needed. 
 COMMENT: Another commenter expressed concern that the designated doctor should 
be well trained, particularly in the use of the AMA Guides. 
 RESPONSE: The commission disagrees that additional clarification is necessary 
in this rule. Recommendations for the commission-approved curriculum for the 
impairment rating training are currently being developed by a group of health 
care providers. Vendors will be required to follow and teach the curriculum to 
be allowed to provide this training. The AMA Guides will continue to be used for 
determining impairment as required by statute. 
 COMMENT: Several commenters recommended increasing the timeframe to reschedule 
a designated doctor examination to 21 or 27 working days to allow the doctors 
more flexibility in scheduling and to receive all medical records. 
 RESPONSE: The commission agrees with the recommendation that the timeframe to 
reschedule an appointment should be increased from 72 hours, but disagrees that 
27 working days should be allowed. The rule requires that a cancelled 
appointment be rescheduled to occur within seven days of the original 
examination date to ensure timely resolution of the dispute. 
 The proposed rules, sec.130.6 and sec.126.10, both refer to sec.130.4 and 
sec.130.5 for the timeframes for rescheduling an appointment, currently 72 
hours. As sec.130.4 and sec.130.5 are in the process of being revised. As a 
result, the timeframes which apply to designated doctors have been moved to 
sec.130.6 and sec.126.10 which specifically address the Designated Doctor List 
and responsibilities. In addition, the timeframe for rescheduling appointments 
has been increased from 72 hours to seven days. This change is included in 
sec.130.6(g) and then sec.126.10(b)(4) refers to sec.130.6. 
 COMMENT: One commenter supported the requirement for commission-approved 
training as outlined in subsection (b)(2). 
 COMMENT: Another commenter supported the requirements for education and 
requested that failure to obtain education be a ground for suspension. 
 RESPONSE: The commission agrees. The reasons for suspension already include 
noncompliance with any provision of commission rules, including the training 
requirement, but to clarify, the following has been added to subsection (f): 
"(11) failure to successfully complete training requirements as specified in 
subsection (b)(2) of this rule." 
 COMMENT: One commenter requested that TWCC's energy be directed toward more 
sophisticated education than on review of practices after the fact. 
 RESPONSE: The commission agrees with the intent of the commenter to ensure that 
a preventative instead of punitive approach is focused on. The commission 
disagrees, however, that a rule amendment would be appropriate. A group of 
health care providers has been organized to develop recommendations for the 
impairment rating training curriculum that is required to meet the objectives of 
being a designated doctor; however, in addition to training, it is imperative 
that TWCC closely monitor the performance of the designated doctors to ensure 
that designated doctors are implementing the training and that injured workers 
are directed to a qualified and trained doctor to resolve their dispute. 
 COMMENT: One commenter stated that designated doctors should have a separate 
office from their normal treating/practice office to ensure proper independence 
and sole dedication to the review of the injured worker. 
 COMMENT: Another commenter stated that it is more comfortable evaluating 
patients where you are not intimately familiar with the physicians in the area 
to ensure impartiality. 
 COMMENT: A third commenter stated that one important aspect of being a 
traveling designated doctor is the objectivity from not being in practice in the 
same town as the other providers who provided treatment for the injured worker. 
 RESPONSE: The commission disagrees that designated doctors should be required 
to maintain separate facilities for the sole purpose of conducting designated 
doctor examinations as this would be too costly for small businesses. The 
commission does not discourage designated doctors from this type of separation 
but with over 3,000 appointments being scheduled per month, it would not be 
feasible for the number of doctors the commission needs to perform these 
examinations to incur this additional expense. 
 The commission agrees that some doctors find travelling to another location for 
the purpose of performing impairment ratings to be more impartial and objective. 
 COMMENT: Several commenters suggested that the designated doctors be required 
to maintain a certain percentage of their practice for designated doctor work 
(e.g. 10-20%). 
 RESPONSE: The commission disagrees with requiring a set amount of a doctor's 
practice be dedicated to designated doctor examinations since the number of 
designated doctor assignments is controlled by the commission, not the doctor. 
 The following comments were received regarding subsection (c). 
 COMMENT: One commenter believed that attaching contracts to the Designated 
Doctor List application is a breach of confidentiality between providers and 
HMOs or PPOs. 
 RESPONSE: The commission agrees that contracts for managed care need not be 
attached to the application and has included in the definition of disqualifying 
association in subsection (a) an exclusion of managed care arrangements. In 
addition, the requirement to attach other contracts to the application as 
specified in subsection (b)(5) and subsection (c) has been deleted and the 
following language added: "within 48 hours of receiving notice of being selected 
as a designated doctor, notify the commission field office of any disqualifying 
association." The designated doctor application will include a specific 
provision that a designated doctor must notify the commission if any 
disqualifying association or perceived bias may exist on an assigned case. 
 COMMENT: Another commenter requested that any economic association with 
employee organizations or representatives of employees, labor organizations, or 
treating doctors be disclosed as well as those with carriers. 
 COMMENT: A third commenter believed that economic association between a 
designated doctor and the treating doctor should be addressed, "If we're going 
to assume bias, let's assume everyone is biased." 
 RESPONSE: The commission agrees that the designated doctor should be completely 
impartial and remove him/herself from any case where a perceived bias may occur. 
The rule and the designated doctor application include a requirement that 
designated doctors notify the field office within 48 hours of assignment as a 
designated doctor, if a disqualifying association or perceived bias may exist, 
so that another designated doctor can be assigned. In addition, a definition of 
disqualifying association has been added to sec.126.10(a) which includes 
associations with any persons or entities that may reasonably be perceived as 
having potential to influence the conduct or decisions of the designated doctor. 
 The following comments were received regarding subsection (d). 
 COMMENT: One commenter recommended adding another item to subsection (d) to 
specify that any violations of sec.130.6(p)(3) would subject the doctor to 
suspension and/or removal. 
 RESPONSE: The commission disagrees with the need to specifically list this as a 
ground for suspension. Subsection (d)(6) already specifically allows the 
commission to suspend and/or remove a doctor for, "any violation of the Texas 
Workers' Compensation Act or commission rules". This subsection provides the 
link for staff to take action against a doctor who fails to comply with 
requirements set forth in sec.130.6, as well as other rules and the Act. 
 COMMENT: Another commenter voiced concern regarding the vagueness of the term 
"accuracy of impairment ratings" and recommends that the doctor be notified when 
there is a grievance or a complaint; and the doctor should be given an 
opportunity to rebut before the suspension process begins. 
 RESPONSE: The commission disagrees that the term "accuracy" requires additional 
explanation in that this will be determined on a case-by-case basis by the 
appropriate commission staff through review of medical records, designated 
doctor's documentation, and the AMA Guides. The commission agrees with the 
commenter's intent that doctors should be contacted when an impairment rating is 
questioned; as a result, whenever staff conducts case reviews and a pattern of 
poor performance is indicated, the doctors will be contacted to respond to the 
review. The commission disagrees that this needs to be stated in the rule. The 
opportunity to respond before suspension is addressed in the responses to 
comments on subsection (g). 
 COMMENT: Another commenter requested clarification on the definition of self-
referral as it appears contradictory in  sec.126.10(d) and sec.130.6(m). 
 RESPONSE: The commission agrees that the term "self-refer" requires 
clarification and has added the following definition to subsection (a)(5): 
"Treatment by the designated doctor or referral for treatment to another health 
care provider with which the designated doctor has a disqualifying association." 
Section 130.6(m) addresses the designated doctor referring the injured worker 
for testing in order to complete an impairment rating and this type of testing 
is not considered treatment; whereas sec.126.10(d) addresses the designated 
doctor referring the injured worker specifically for treatment. The commission 
has clarified the requirement set forth in subsection (d)(3) by changing the 
subsection to read as follows, "non-certification of maximum medical improvement 
followed by the designated doctor self-referring for treatment;" In addition, 
the following clarifying statement has been added regarding self-referring as 
subsection (b)(8), "not self-refer for treatment or become the injured 
employee's treating doctor for the medical condition evaluated by the designated 
doctor. The designated doctor may indicate in the narrative report any treatment 
recommendations for the treating doctor to consider, but should not assist in 
any manner or facilitate the receipt of this treatment." 
 COMMENT: Another commenter requested that substantiated patient complaints be 
deleted as a reason for suspension and only include the substantiated complaints 
from the licensing boards. 
 COMMENT: Another commenter requested the addition of substantiated carrier 
complaints as reasons to suspend doctors in subsection (d)(5). 
 COMMENT: Another commenter remarked that sec.126.10(d)(5) is vague. 
 RESPONSE: The commission disagrees with limiting substantiated complaints to 
complaints from the licensing boards. Licensing boards do not enforce or 
research concerns regarding workers' compensation rules or guidelines; thus, 
TWCC must evaluate all patient complaints to determine if designated doctors are 
following commission rules, guidelines and established requirements through the 
core curriculum of the impairment rating training. 
 The commission agrees with including complaints from other parties in addition 
to patient complaints. Subsection (d)(5) has been changed to delete the word 
"patient" in order for all complaints to be evaluated by the commission. 
 COMMENT: Another commenter requested restructuring of the rule lists to omit 1-
4 in subsection (d) and include those items in subsection (f). 
 RESPONSE: The commission disagrees with eliminating items 1-4 from subsection 
(d) because the commission should have the discretion to consider these items 
when adding, removing or suspending a doctor from the list. However, the 
language in subsection (d) and (f) has been modified to clarify that the items 
listed in subsection (d) apply to adding designated doctors but may also be the 
basis for suspending or removing doctors from the list. Additionally, items 
listed in subsection (f) apply to suspending/removing designated doctors from 
the list. The following changes have been made: Modify the first sentence of 
subsection (d) to read, "The division may, in addition to the documentation 
submitted with the doctor's request, consider the following in determining 
whether to add a doctor to the Designated Doctor List: " Modify the first 
sentence in subsection (f) by deleting the last phrase starting with "or 
actions" and replace with the following sentence to be consistent with 
subsection (d), "The division may also consider and take action to suspend or 
remove a doctor from the Designated Doctor List based on, but not limited to, 
any of the following:" Subsection (f)(10) has been added to clarify that all 
factors listed in subsection (d) can be considered in a removal or suspension 
action. 
 COMMENT: Another commenter remarked that if a statewide profile is going to be 
used for benchmarking designated doctors, then why not apply the statewide 
average to all injured workers and eliminate designated doctor appointments. 
 COMMENT: Another commenter stated that comparing previous ratings to like 
injuries as criteria for inclusion or exclusion from the designated doctor list 
is inappropriate. 
 RESPONSE: The commission disagrees. The Texas Workers' Compensation Act 
requires the resolution of disputes through the use of designated doctors. Each 
injured worker's condition varies and must be reviewed on a case by case basis; 
however, using statewide averages is a good indicator of the doctor's 
application and knowledge of the AMA Guides. Doctors who fall significantly 
outside the averages may not be applying the AMA Guides in the same manner as 
other doctors, which creates unnecessary disputes. Likewise, the commission 
recognizes that due to specialization in the medical field, some doctors 
regularly treat the more complex cases and therefore, might acceptably have an 
impairment record that deviates from the statewide average. This factor is just 
one which the division will consider in evaluating doctors. 
 COMMENT: One commenter expressed support for the proposed criteria for adding, 
suspending or removing a doctor from the designated doctor list. 
 RESPONSE: The commission agrees. 
 The following comments were received on subsection (e). 
 COMMENT: One commenter requested that out-of-state doctors meet the same 
criteria as outlined in this rule. 
 RESPONSE: The commission agrees with the intent, but believes that in unusual 
circumstances where injured workers have moved out of state, a timely resolution 
of the dispute may require the waiver of some of the requirements in the rule. 
Subsection (e) has been revised by adding the phrase, "to facilitate a timely 
resolution of the dispute" to the end of the sentence, in order to clarify the 
basis for the waiver. To clarify when the waiver is appropriate, the phrase, 
"because the injured worker is temporarily located or residing out-of-state", 
has been added following, "when deemed necessary." In addition, the word "serve" 
has been substituted for "perform" to clarify the meaning of the subsection. 
 The following comments were received on subsection (f). 
 COMMENT: Several commenters recommended increasing the number of refusals in a 
90 day period as specified in sec.126.10(f)(1), from "two" to "three" or "four". 
 RESPONSE: The commission agrees with increasing the number of refusals within a 
90 day period and consecutive refusals from 2 to 4 in subsection (f) (1) to 
ensure that designated doctors are not removed from the designated doctor list 
unfairly. In addition, staff will consider any extenuating or mitigating 
circumstances prior to taking suspension or removal action against the doctor to 
determine whether the reason for refusal is justified (e.g., TWCC requested five 
appointments in one month.) 
 COMMENT: Other commenters recommended adding the following criteria to 
subsection (f): 
 failure to successfully complete commission-approved training as required by 
sec.126.10(b)(2); 
 failure to maintain accurate records as required by sec.130.6(o); and 
 failure to refund the insurance carrier for an improper or incomplete 
examination or report, as required by sec.130.6(p)(3). 
 RESPONSE: The commission disagrees with the need to explicitly list these as 
reasons for suspension. While the commission agrees with the concept of these 
suggestions, it disagrees with duplicating information that is already contained 
in sec.130.6 and sec.126.10. Subsection (d)(6), "any violation of the Texas 
Workers' Compensation Act or commission rules", provides the link for staff to 
take action against a doctor that fails to comply with the Texas Workers' 
Compensation Act or the commission rules. 
 COMMENT: One commenter recommended substituting the word "shall" for the word 
"may" in the first sentence to clearly establish the consequences associated 
with failure to comply. 
 RESPONSE: The commission disagrees. The commission will review noncompliance of 
doctors based on the criteria defined in subsection (f) but will also consider 
extenuating circumstances on a case-by-case basis during review, prior to taking 
suspension action against a doctor. It is the intent of the commission to 
maintain a list of qualified doctors. The commission will make impartial and 
fair determinations based on the criteria and performance of the doctors. In 
addition, this comment brought to the commission's attention that subsection (d) 
uses the word "shall". As a result, "The division shall", has been changed to 
"The division may". The inclusion of the word "shall" implies that it is 
mandatory for the division to have and consider all the information listed in 
sec.126.10(d) to make a determination for approval to the Designated Doctor 
List. This is not practical. The intent of the rule is to give the division some 
discretion to consider the items in subsection (d) when they are available. 
 COMMENT: Another commenter recommended that subsection (f)(9) be changed to 
make clear if "overturned assignments" refers to BRC, CCH and or court decisions 
and to add the word "consistently" at the beginning of this statement. 
 RESPONSE: The commission agrees to clarify the intent of subsection (f)(9) by 
modifying it to read: "assignments of maximum medical improvement and/or 
impairment ratings overturned in a contested case hearing, appeals panel 
decision and/or court decision." The commission disagrees with adding the word 
"consistently" to this statement as it does not provide any additional 
clarification and staff will evaluate doctors on a case-by-case basis to 
determine if suspension is warranted. 
 COMMENT: One commenter requested clarification of who will determine 
unnecessary tests and inaccurate examinations. 
 RESPONSE: The commission disagrees that clarification is needed in this rule. 
The commission is charged with the implementation of all aspects of the rule and 
the division will make the determination of unnecessary tests and inaccurate 
examinations. 
 COMMENT: One commenter expressed concern that the causes for suspension listed 
in the proposed rule will leave the commission without designated doctors. The 
commenter also requested that subsection (f)(7) be reworded as follows: "failure 
to examine the complete set of medical records and analyze a referred/supervised 
health care providers testing results to insure appropriate application of the 
AMA Guides." 
 RESPONSE: The commission disagrees. The designated doctor's responsibilities 
are set out in sec.130.6, these include review of medical history. Failure to 
review records in the designated doctor's possession would be a violation of 
sec.126.10(f). Punitive action against the designated doctor is not appropriate 
for failing to review records which were not in the doctor's possession. The 
commission has clarified subsection (f)(7) as follows: "submission of an 
inaccurate or inappropriate impairment rating due to insufficient examination 
and analysis of a referred/supervised health care provider's testing results 
which must be in accordance with the AMA Guides." 
 COMMENT: One commenter expressed a concern that seven-day timeframe for return 
of the medical report is unreasonable. 
 RESPONSE: The commission disagrees. The timeframe for completing the reports as 
established in sec.130.1 of this title (relating to Reports of Medical 
Evaluation: Maximum Medical Improvement and Permanent Impairment) is necessary 
to ensure timely resolution of the injured worker's dispute. 
 COMMENT: One commenter applauded the Medical Review Division for boldly 
addressing the issues which can unfairly and adversely affect an impairment 
rating. The commenter supported the proposed criteria for suspending or removing 
a doctor from the designated doctor list. 
 RESPONSE: The commission agrees. 
 COMMENT: Several commenters stated that it is a privilege to be selected as a 
designated doctor. 
 COMMENT: Another commenter stated that doctors or any health care practitioners 
need to have somebody keep an eye on them to make sure they're doing the best 
job they can. 
 RESPONSE: The commission agrees. 
 COMMENT: One commenter expressed concern that the rule seemed to be a punitive 
approach and would tend to drive away good designated doctors. 
 RESPONSE: The commission disagrees. The role of a designated doctor is a 
privilege and an important part of the Workers' Compensation system. The 
commission is responsible for outlining all expectations of the doctors for them 
to be fully aware of their obligations and the ramifications should they fail to 
meet the expected standards. 
 The following comments were received on subsection (g). 
 COMMENT: Several commenters recommended adding specific wording to allow a 
suspended designated doctor to complete currently scheduled examinations, but to 
prohibit acceptance or assignment of additional examinations as of the 
suspension date and of any case not yet scheduled for examination. RESPONSE: The 
commission agrees that an exception may be appropriate. When the reason for 
suspension is untimely appointments and the designated doctor has a timely 
appointment scheduled, the commission may allow the timely appointment to 
continue. However, when a doctor has been suspended from the list for any other 
reason, the grounds for suspension will be such that performing additional 
examinations in the role as a designated doctor would be inappropriate until 
corrective action has occurred to ensure all workers receive fair and impartial 
resolution of their dispute from this doctor. The phrase, "notice if pre-
scheduled appointments are cancelled or should be performed", has been added to 
the rule to clarify the division's discretion to reassign pending appointments. 
The commission's suspension notice will include whether appointments may occur 
or will be cancelled and the automated scheduling system will identify any 
pending appointments that may require reassignment to another designated doctor. 
 COMMENT: One commenter requested a timeframe of 30 days for the TWCC to respond 
to the designated doctor's rebuttal to a suspension and for the response to be 
sent by certified mail to document transmission and receipt of the response. 
 RESPONSE: The commission disagrees that a response timeframe should be included 
by rule. Rebuttals will be reviewed on a case-by-case basis and will be 
responded to timely. The commission routinely sends letters regarding sanctions 
to providers by certified mail, to ensure proper notification. 
 COMMENT: One commenter requested the right to appeal a suspension or removal 
from the Designated Doctor List in an APA hearing. 
 COMMENT: Other commenters contested what they see as a lack of due process in 
the rule. One commenter felt the proposed rule usurped the powers of the 
commission. 
 COMMENT: One commenter requested that removal from the designated doctor list 
be similar to the spinal surgery process whereby recommendations for removal are 
submitted to the commissioners. 
 RESPONSE: The commission disagrees that the rule lacks due process. 
Participation in the designated doctor process is voluntary and does not 
constitute a right. Service as a designated doctor is a privilege and as such 
can be revoked; however, the commission's intent is to include all willing and 
qualified doctors on the designated doctor list. Subsection (g) has been revised 
as to procedure so that when the division deems a doctor unqualified or 
unwilling to serve as a designated doctor, the doctor will be given notice of 
the reasons for suspension or removal from the Designated Doctor List and an 
opportunity to rebut those reasons. This procedure affords a doctor the due 
process which may be required for withdrawal of such a privilege, and therefore 
does not necessitate the complexity and formality of an APA hearing. 
 COMMENT: One commenter supported the need for doctors to be monitored to ensure 
they perform the best job possible. The commenter recommended reprimanding 
doctors who are noncompliant with the designated doctor rule. Several reprimands 
may warrant removal of the doctor from the Designated Doctor List, "three 
strikes and you're out." 
 RESPONSE: The commission agrees with this general concept as most of the 
sanctions will occur based on a pattern of inappropriate actions, but disagrees 
that the rule needs revision to do this. There may be some instances when 
allowing "three strikes" would be inappropriate. 
 The following miscellaneous comments were received on the proposed rule. 
 COMMENT: A commenter requested that the selection of designated doctors be on a 
rotating basis and that records be kept documenting referrals. 
 RESPONSE: The commission agrees that selection of designated doctors should be 
on a rotating basis, but disagrees that this needs to be in the rule. The 
selection of designated doctors is being automated to be on a rotating basis, to 
the extent possible, by proximity of the designated doctor to the injured 
worker. Experience with the rules and procedures will show the extent to which 
this is feasible. 
 COMMENT: One commenter requested that the selection of designated doctors be 
chosen without regard to professional affiliation. 
 COMMENT: Another commenter recommended that the designated doctor be the same 
medical provider class as the treating doctor. 
 RESPONSE: The commission is unclear on what commenters meant by the phrases 
"professional affiliation" and "medical provider class". House Bill 1089 
requires that to the extent possible, a designated doctor must be in the same 
discipline and licensed by the same board of examiners as the employee's doctor 
of choice. The commission is developing procedures to ensure that this occurs 
and has included this language be incorporated in sec.130.6(b)(4). 
 COMMENT: One commenter requested that designated doctors be selected by 
specialty so that, as an example, a pulmonary problem is not scheduled with an 
orthopedist. 
 COMMENT: Another commenter stated that you don't need to be a specialist in a 
particular area (e.g., ear, nose, throat, visual, GI) to be able to render 
impairment ratings, but you do need to know the Guides. 
 RESPONSE: The commission disagrees with selecting designated doctors by 
specialty as opposed to licensing board as required in House Bill 1089. The 
designated doctor may refer to a specialist for appropriate testing as 
applicable (e.g., pulmonary testing). 
 COMMENT: One commenter remarked that one and one-half days training is not 
adequate. 
 RESPONSE: The commission agrees that the length of training should be evaluated 
and a determination made as to the necessary length. A group of health care 
providers has been organized to make recommendations regarding the necessary 
curriculum to ensure that a doctor is properly trained to serve as a designated 
doctor. 
 The following commenters recommended additions to sec.126.10. 
 COMMENT: One commenter recommended adding to sec.126.10 that the responsible 
doctor must be notified each time an assignment of MMI or impairment rating is 
overturned. 
 RESPONSE: The commission agrees that doctors should be notified of overturned 
assessments, but does not feel it needs to be addressed in the rule. When a 
dispute arises regarding the assignment of impairment rating or MMI, frequently 
the doctor is contacted for clarification during the dispute process. The 
commission will develop procedures for notifying designated doctors of any 
impairment rating and/or MMI which is overturned at the commission level to keep 
the doctor apprised. 
 COMMENT: One commenter suggested that the commission may want to formulate an 
approved list of psychologists, physical therapists, speech pathologists, 
occupational therapists, audiologists, etc., who perform specific testing for 
designated doctors because this would aid in accuracy and quality of overall 
examinations. 
 RESPONSE: The commission disagrees that this needs to be in the rule. The 
ancillary providers performing range of motion, sensory, and strength testing 
services for the designated doctor examinations are required by sec.130.6(l) to 
have successfully completed commission-approved training in the proper use of 
the AMA Guides. For other than range of motion, sensory, and strength testing, a 
referral provider is not required to attend training on the AMA Guides because 
such testing does not involve the Guides. The designated doctor assigned to the 
case must analyze the referral provider's results and incorporate these results 
into the assessment of the patient in accordance with the AMA Guides. The 
designated doctor is ultimately responsible for the integrity of the evaluation 
process. 
 The following positive comments were received regarding the proposed rule. 
 COMMENT: One commenter stated "I believe that the proposed rule has several 
good points. Continuing education stands out as a major one. Establishing 
protocols for the addition and removal of Designated Doctors is another." 
 COMMENT: Another commenter stated "I feel that there are some positive changes 
presented in the proposed rule." (sec.126.10) 
 COMMENT: One commenter stated "I feel many of the proposed changes are indeed 
needed, and will be a significant addition and improvement to the current 
system." 
 COMMENT: One commenter stated "The Fund believes adoption of a rule which 
allows the commission to select highly qualified doctors as designated doctors 
will result in better medical evaluations of injured employees and reduce the 
number of disputes. In addition, we believe the proposed rule will allow the 
commission to evaluate designated doctors and suspend those designated doctors 
who do not perform as well as their peers." 
 The new rule is adopted pursuant to Texas Labor Code sec.402.061, which 
requires the commission to adopt rules necessary for the implementation and 
enforcement of the Texas Workers' Compensation Act; the Texas Labor Code, 
sec.401.011(15), which gives the definition of a designated doctor; the Texas 
Labor Code, sec.408.023, as amended by House Bill 1089, 74th Legislature, 1995, 
effective September 1, 1995, which describes the commission's list of approved 
doctors, mandates that he commission establish criteria for deleting a doctor 
from the list and for reinstatement of a doctor to the list; Texas Labor Code 
sec.408.122, as amended by House Bill 1089, 74th Legislature, 1995, effective 
September 1, 1995, which describes the criteria for deciding an employee's 
eligibility for impairment income benefits, gives the commission the authority 
to choose a designated doctor to examine the employee, grants the report of the 
designated doctor presumptive weight in dispute resolution, and mandates that 
designated doctor qualification standards and impairment rating training be 
developed; Texas Labor Code, sec.408.125, as amended by House Bill 1089, 74th 
Legislature, 1995, effective September 1, 1995, which describes the dispute 
resolution process to be used when there is a dispute as to an impairment rating 
and prohibits certain communication with the designated doctor; Texas Labor Code 
sec.413.002, as amended by House Bill 1089, 74th Legislature, 1995, effective 
September 1, 1995, which gives the commission authority to monitor and evaluate 
health care providers (including designated doctors), insurance carriers, and 
workers' compensation claimants to ensure compliance with the rules adopted by 
the commission; the Texas Labor Code, sec.413.011, which requires the commission 
by rule to establish medical policies and guidelines relating to: fees charged 
or paid for medical services for employees who suffer compensable injuries, use 
of medical services by employees, and fees charged, as well as requiring the 
commission to design medical policies to ensure the quality of medical care and 
to achieve effective cost control; and the Texas Labor Code, sec.413.053, which 
requires the commission by rule to establish standards of reporting and billing 
governing both form and content; and Texas Labor Code sec.413.044, as amended by 
House Bill 1089, 74th Legislature, 1995, effective September 1, 1995, which 
empowers the commission to seek sanctions against a designated doctor who is not 
in compliance with the Workers' Compensation Act or commission rules. 
 
 
  sec.126.10. Commission Approved List of Designated Doctors. 
 
  (a)  The following words and terms, when used in this rule, shall have the 
following meanings, unless the context clearly indicates otherwise. 
 
  (1)  Designated Doctor List-A list of doctors approved by the commission and 
afforded the privilege to perform medical evaluations and make recommendations 
to resolve disputes regarding certification of maximum medical improvement 
and/or assignment of impairment rating. 
   
  (2) AMA Guides-Guides to the Evaluation of Permanent Impairment, third 
edition, second printing, dated February 1989, published by the American Medical 
Association. 
   
  (3)  Division-The Medical Review Division of the Texas Workers' Compensation 
Commission. 
   
  (4) Disqualifying Association-Any association which may reasonably be 
perceived as having potential to influence the conduct or decision of the 
designated doctor. 
 
  (A) A disqualifying association between a designated doctor and a party may 
include: 
 
  (i) receipt of income, compensation, or payment of any kind not related to 
medical services provided by the doctor; 
   
  (ii) shared investment or ownership interest; 
   
  (iii) contracts or agreements which provide incentives, such as, referral 
fees, payments based on volume or value, and waiver of beneficiary coinsurance 
and deductible amounts; 
   
  (iv)  contracts or agreements for space or equipment rentals, personnel 
services, management contracts, referral services, or warranties, or any other 
services related to the management of the doctor's practice; or 
   
  (v)  personal or family relationships. 
     
  (B) Receipt of normal payments rendered for services provided pursuant to 
managed care/preferred provider contracts or any payment in accordance with the 
Texas Workers' Compensation Act and rules, is not considered a disqualifying 
association. 
     
  (5) Self-Refer-Treatment by the designated doctor or referral for treatment to 
another health care provider with which the designated doctor has a 
disqualifying association. 
   
  (6) Party-Any of the following entities including any of their agents or 
representatives: the insurance carrier, health care provider (including 
designated doctor and treating doctor) , injured employee, or employer. 
     
  (b) Doctors included in the Designated Doctor List shall: 
 
  (1) be currently active on the list of approved doctors as set forth in the 
Texas Labor Code, sec.408.023 (relating to List of Approved Doctors); 
   
  (2) meet the following training requirements: 
 
  (A) have successfully completed commission-approved training in the proper use 
of the AMA Guides prior to submission of an application; 
   
  (B) successfully complete commission-approved training at least every two 
years from the date of the last training as required in subparagraph (A) of this 
paragraph; and 
   
  (C) have passed the commission-approved written examination for impairment 
rating training within the timeframe as specified by the division; 
     
  (3) schedule appointments to examine employees for a date as set forth in 
sec.130.6 of this title (relating to Designated Doctor: General Provisions); 
   
  (4) reschedule the examination for a date as set forth in sec.130.6 of this 
title (relating to Designated Doctor: General Provisions) when notified by the 
injured employee of a scheduling conflict; 
   
  (5) within 48 hours of receiving notice of being selected as a designated 
doctor, notify the commission field office of any disqualifying association; 
   
  (6) comply with all the provisions for designated doctors as specified in this 
rule and sec.130.6 of this title (relating to Designated Doctor: General 
Provisions); 
   
  (7) have maintained for the past three years and continue to maintain routine 
office hours for the treatment of patients in an active practice; and 
   
  (8)  not self-refer for treatment or become the injured employee's treating 
doctor for the medical condition evaluated by the designated doctor. The 
designated doctor may indicate in the narrative report any treatment 
recommendations for the treating doctor to consider, but should not assist in 
any manner or facilitate the receipt of this treatment. 
     
  (c) Doctors may request to be on the Designated Doctor List by filing with the 
division form TWCC-72, Designated Doctor List Application, in the form and 
manner prescribed by the commission. The division shall notify the doctor of the 
approval or denial of the application. 
   
  (d) The division may, in addition to the documentation submitted with the 
doctor's request, consider the following in determining whether to add a doctor 
to the Designated Doctor List: 
 
  (1) any impairment ratings previously assessed, compared to like injuries; 
   
  (2) accuracy of previously assessed impairment ratings and certification of 
maximum medical improvement; 
   
  (3)  non-certification of maximum medical improvement followed by the 
designated doctor self-referring for treatment; 
   
  (4) previous billing or treatment practices; 
   
  (5) substantiated complaints against the doctor; 
   
  (6) any violation of the Texas Workers' Compensation Act or commission rules; 
and 
   
  (7) any doctor's licensing body or regulatory agency disciplinary action. 
     
  (e) When deemed necessary because the injured worker is temporarily located or 
residing out-of-state, the commission may waive any of the requirements as 
specified in this rule for an out-of-state doctor to serve as a designated 
doctor to facilitate a timely resolution of the dispute. 
   
  (f) Doctors may be suspended or removed from the Designated Doctor List for 
noncompliance with requirements of this section. The division may also consider 
and take action to suspend or remove a doctor from the Designated Doctor List 
based on, but not limited to, any of the following: 
 
  (1) four refusals within a 90 day period, or four consecutive refusals to 
perform within the required time frames, a commission requested appointment for 
which the doctor is qualified; 
   
  (2) two untimely or incomplete submissions within a 90 day period of medical 
evaluation reports in accordance with  sec.130.1 of this title (relating to 
Reports of Medical Evaluation, Maximum Medical Improvement and Permanent 
Impairment) and  sec.130.6 of this title (relating to Designated Doctor: General 
Provisions); 
   
  (3) failure to amend patterns of practice after being advised by the 
commission of performance requiring correction; 
   
  (4)  misrepresentation or omission of information in the designated doctor 
application process; 
   
  (5) misrepresentation or omission of pertinent facts in medical evaluation and 
narrative reports; 
   
  (6) unnecessary referrals for the assignment of impairment rating or 
determination of maximum medical improvement (MMI); 
   
  (7) submission of an inaccurate or inappropriate impairment rating due to 
insufficient examination and analysis of a referred/supervised health care 
provider's testing results which must be in accordance with the AMA Guides; 
   
  (8) failure to timely respond to request for clarification from the commission 
regarding an examination; 
   
  (9) assignments of maximum medical improvement and/or impairment ratings 
overturned in a contested case hearing, appeals panel decision and/or court 
decision; 
   
  (10) any of the factors listed in subsection (d) of this section; or 
   
  (11) failure to successfully complete training requirements as specified in 
subsection (b)(2) of this section. 
     
  (g)  The division shall notify a doctor in writing by certified mail, return 
receipt requested, or by personal delivery with receipt acknowledged, of 
temporary suspension from the Designated Doctor List pending division action. 
The notification shall include the division's proposed action, the reasons for 
the proposed action, details regarding the doctor's opportunity to rebut those 
reasons and notice if pre-scheduled appointments are cancelled or should be 
performed. 
 
  (1) The temporary suspension will be effective from the date of receipt of the 
notice by the doctor. 
   
  (2) A doctor may submit a written rebuttal specifically addressing each reason 
for the proposed action. The rebuttal must be received by the division within 14 
days after the doctor's receipt of the temporary suspension notice and must be 
sent by certified mail, return receipt requested, or by personal delivery with 
receipt acknowledged. Failure to respond within the timeframe will result in the 
division's proposed action becoming effective without further notification. 
   
  (3) The division shall review the rebuttal and determine the appropriate 
action to take including: reinstatement to; suspension from; or removal from the 
Designated Doctor List. The division shall notify a doctor in writing of the 
action taken. 
   
  (4) A doctor who has been suspended or removed from the Designated Doctor 
List, may submit a written request to the division requesting reinstatement to 
the Designated Doctor List, and shall include a completed Designated Doctor List 
Application (TWCC-72), and information regarding corrective measures undertaken 
to resolve the suspension or removal issue. The division will evaluate the 
request and make a determination of the doctor's reinstatement to the Designated 
Doctor List and notify the doctor of approval or denial of the reinstatement 
request. 
 
  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 September 12, 1995. 
 TRD-9511734 
  Susan Cory 
 General Counsel 
 Texas Workers' Compensation Commission 
    Effective date: December 1, 1995 
 Proposal publication date: March 21, 1995 
 For further information, please call: (512) 440-3700 
         
               Chapter 130. Impairment and Supplemental Income Benefits 
  
  Subchapter A. Impairment and Income Benefits 
 
  28 TAC sec.130.6 
 
  The Texas Workers' Compensation Commission (the commission) adopts an 
amendment to sec.130.6, concerning general provisions regarding designated 
doctors, is adopted with changes to the proposed text as published in the March 
21, 1995 issue of the Texas Register (20 TexReg 2023). The commission is 
simultaneously adopting new sec.126.10, concerning the commission-approved list 
of designated doctors. The majority of the changes were made in response to 
public comment and testimony received at a public hearing held on May 3, 1995. 
Changes made in response to public comment are described in the summary of 
comments portion of this preamble. Other changes were made for clarification or 
to correct typographical or grammatical errors. These changes include the 
following. 
 The commission has added language to subsection (b)(4) to emphasize the 
requirements from House Bill 1089 that a designated doctor shall, to the extent 
possible, be from the same discipline and licensed by the same board of 
examiners as the employee's doctor of choice. The commission has deleted the 
phrase "with regard to the same injury" in subsection (b), as it relates to the 
prohibition of past treatment and replaced it with "with regard to the medical 
condition being evaluated by the designated doctor" to clarify the restriction. 
 The commission has clarified the wording and sentence structure in subsection 
(c) to ensure that the timeframes are more easily understood. The revised 
language is as follows: "(c) After sending the order to the employee and the 
insurance carrier as specified in subsection (a) of this section, the commission 
shall allow the employee and insurance carrier to agree on a designated doctor. 
If at the end of the tenth day from the date of the order, the commission has 
not received notification from the insurance carrier or injured employee that a 
designated doctor has been agreed upon, the commission will presume that an 
agreement is not possible and the employee is required to attend the commission-
selected designated doctor examination as specified in subsection (a) of this 
section." The second sentence in subsection (c) relating to the notification of 
the employee has been moved to subsection (a) (5), in order to clarify who will 
notify the employee of his/her rights. 
 The commission has added professional license number to the required contents 
of the notice which is generated by the carrier for an agreed-upon designated 
doctor in sec.130.6(e)(4). This information will assist field office staff in 
determining if the agreed-upon doctor is on the approved Designated Doctor list. 
 The term "parties" in subsection (f) has been replaced with "the injured 
employee and carrier" to clarify the reference. 
 The commission has clarified the intent of subsection (h) by combining the last 
two sentences into one sentence using the conjunction "and". The commission has 
replaced the word "should" with "shall" in subsection (h) to require the 
designated doctor to notify the commission of any noncompliance regarding 
submission of unmarked, unhighlighted medical records. The commission has 
clarified that a signed statement from the injured employee for release of 
medical records is not required by adding the following language to subsection 
(h): "The treating doctor and insurance carrier are both responsible for sending 
to the designated doctor all the employee's medical records relating to the 
medical condition to be evaluated by the designated doctor that are in their 
possession without a signed release from the employee. " 
 In subsection (i) the word "before" has been replaced with the words "prior to" 
to clarify that the designated doctor can communicate with the employee or an 
appropriate member of the commission staff at any time "prior to" the actual 
physical examination. 
 The commission has added the following language to subsection (j) to clarify 
that the doctor should not determine an impairment rating when MMI has not been 
reached: "When maximum medical improvement and impairment rating are in dispute 
and the designated doctor determines that the employee has not reached MMI, the 
designated doctor shall not assign an impairment rating." 
 The commission has modified subsection (j) to clarify the commission's intent 
that only doctors and health care providers that have successfully completed 
commission-approved training should be allowed to perform the range of motion, 
sensory, and strength testing for the designated doctor impairment rating. The 
following language has been added: "Although any doctor or any other provider 
who has successfully completed the training outlined in sec.126. 10(b)(2) of 
this title, (relating to commission Approved List of Designated Doctors) may 
compare the clinical findings on a particular patient with the criteria in the 
AMA Guides, the designated doctor shall conduct a physical evaluation and is 
responsible for the integrity of the evaluation process." 
 The commission has broadened the restrictions for a designated doctor or anyone 
who assists in the designated doctor process by disallowing anyone who has 
previously treated or examined the injured employee from performing a designated 
doctor examination of the employee. This will help to ensure potential biases 
are minimized. The commission has added the following phrase to the end of 
subsection (l), "... must not have previously treated or examined the employee 
within the past 12 months or with regard to the medical condition being 
evaluated by the designated doctor...". The commission has revised the last 
sentences of subsection (l) to add a time limit for completing testing to ensure 
the dispute is resolved in a timely manner. In addition, reference to  
sec.126.10(b)(2) has been added to ensure other health care providers are 
required to meet all training and testing requirements. The modified subsection 
(l) is as follows: "(l) If this testing is not performed by the designated 
doctor, the health care provider performing the testing must have successfully 
completed commission-approved training as outlined in sec.126. 10(b)(2) in the 
proper use of the AMA Guides, must not have previously treated or examined the 
employee within the past 12 months or with regard to the medical condition being 
evaluated by the designated doctor, and must complete testing within seven days 
of the designated doctor's physical examination of the employee." 
 To ensure that the designated doctor is making referrals for the impairment 
rating only, and not for opinions on maximum medical improvement, subsection (m) 
has been clarified by deleting "to determine whether maximum medical improvement 
has been reached".The commission has also revised the last sentences of 
subsection (m) to add a time limit for completing testing to ensure the dispute 
is resolved in a timely manner as follows: "(m) Any additional testing required 
by the AMA Guides for the assignment of an impairment rating is not subject to 
preauthorization requirements in accordance with the Texas Labor Code, 
sec.413.014 (relating to Preauthorization) and additional testing must be 
completed within seven days of the designated doctor's physical examination of 
the injured employee." 
 The commission has clarified subsection (p)(3) by making the last phrase into 
two phrases, one for examinations performed and one for reports submitted. 
 To ensure that the carrier considers the cost to the injured worker for travel, 
language consistent with the spinal surgery second opinion rule has been added 
to subsection (r)(1). The commission has added subsection (r)(6) to clearly 
establish that reimbursement is contingent upon receipt of the impairment rating 
report by the carrier. 
 The amendment to sec.130.6 is adopted to clarify the commission requirements 
for doctors who serve in the capacity as designated doctors and to clarify the 
process for assigning designated doctors. If a dispute relating to either 
assignment of impairment rating or determination of maximum medical improvement 
exists, the amended rule provides for a designated doctor, either agreed to by 
the insurance carrier and injured employee or appointed by the commission to 
examine the employee. The amended rule requires all designated doctors to meet 
the conditions set forth by sec.126.10 of this title (related to Commission 
Approved List of Designated Doctors). If a doctor is not on the Designated 
Doctor List, the amendment clarifies that he or she may not serve as a 
designated doctor for the commission. The amended rule provides that to serve in 
a particular case, a designated doctor must be on the Approved Doctor List, not 
have previously treated or examined the injured employee within the last 12 
months; not have any disqualifying associations; to the extent possible, be in 
the same discipline and licensed by the same board of examiners. The amended 
rule also: includes the requirement for commission staff to notify the employee 
of the commission's requirement to adopt the impairment rating made by a 
mutually agreed upon designated doctor and to explain when a designated doctor's 
opinion has presumptive weight; requires the treating doctor and carrier to 
forward medical records to the designated doctor; limits communication with the 
designated doctor before and after the examination; requires the designated 
doctor to perform a physical examination of the employee; holds the designated 
doctor responsible for the integrity of testing performed by a referral health 
care provider; requires submission of the medical evaluation report in 
accordance with sec.130.1 of this title (relating to Reports of Medical 
Evaluation; Maximum Medical Improvement); requires the designated doctor to 
maintain certain records relating to the examination and referrals; addresses 
the timeframe within which a carrier must begin payment of income benefits after 
a designated doctor's report; and establishes billing procedures and 
reimbursement amounts for designated doctor services until such time as the 
Medical Fee Guideline specifically addresses this issue. 
 The amendment to sec.130.6 provides the details of the designated doctor 
dispute resolution process. The amended rule sets out the procedure to be 
followed in the selection of a designated doctor, either by the agreement of the 
employee and the carrier or assignment by the commission. Time limits are set 
for each stage of the process to ensure timely resolution of disputes. As a 
means of expediting dispute resolution, the amendment to sec.130.6 provides for 
the notice of dispute and the notice of appointment of designated doctor to be 
issued simultaneously. This procedure allows the timeframes for agreement on a 
designated doctor, for setting appointments for commission-assigned designated 
doctors, and for forwarding medical records to the designated doctor to run 
concurrently, thereby shortening the time required for dispute resolution. In 
view of the fact that only 2.0% of designated doctors are agreed upon by the 
employee and carrier, delaying the process to wait for such an agreement is not 
justified. Under the previous sec.130.6, timeframes for setting and scheduling 
designated doctor exams overlapped with the timeframes for receiving medical 
records, creating a situation where appointments could be scheduled for a date 
before the medical records were even supposed to have arrived at the designated 
doctor's office. The amendment should resolve this conflict. 
 The payment of temporary income benefits ceases when the injured employee 
reaches maximum medical improvement. Impairment income benefits are paid based 
upon assignment of an impairment rating, and the percentage of impairment is 
determinative of whether supplemental income benefits are paid. As a result 
timely resolution of disputes is essential to the employee's receipt of 
appropriate benefits. 
 In the past, designated doctors have had problems receiving complete medical 
records prior to their scheduled examination of the injured employee. Because 
designated doctors must review the employee's medical history to render an 
opinion on maximum medical improvement and/or impairment rating, difficulty in 
receiving records has greatly hindered the designated doctor process. Passage of 
House Bill 1089, 74th Legislature, 1995, makes several changes to the Texas 
Workers' Compensation Act which address designated doctors. One of these changes 
is a provision which prohibits communication with the designated doctor by 
anyone except the injured employee and appropriate commission staff prior to the 
designated doctor examination. The purpose of this provision is to prevent undue 
influence on a designated doctor's decisions. Because the mere forwarding of 
unaltered medical records to a designated doctor does not impose an undue 
influence on a doctor, in the amended sec.130.6, the word, "communication" has 
been interpreted to exclude the forwarding of unaltered medical records to the 
designated doctor. This interpretation avoids the time consuming process of 
sending records to the treating doctor or the commission, who would then have to 
forward them to the designated doctor. Instead, under amended sec.130.6, the 
insurance carrier and the treating doctor can send medical records directly to 
the designated doctor but the records must not contain any marks, highlights, or 
other alterations placed on such records for the purpose of communicating with 
or influencing the designated doctor. This will transmit more records to the 
designated doctor in a shorter period of time. 
 Subsection (b) of the amended rule sets out criteria which must be met for a 
doctor to be assigned as a designated doctor for a particular dispute. The 
purpose of these provisions is to assure that designated doctors are impartial 
and also perceived to be impartial in the dispute they are asked to resolve. In 
response to changes made to Texas Labor Code sec.408.122 by House Bill 1089, the 
amendment also requires that, to the extent possible, a designated doctor should 
be in the same discipline and licensed by the same board of examiners as the 
employee's treating doctor. 
 The requirements for a designated doctor examination are set out in the amended 
rule as are provisions for testing by a specialist when necessary. Procedures 
and timeframes for rescheduling a designated doctor examination are included to 
ensure that the process continues expeditiously. 
 There has been a question regarding what issues a designated doctor assigned to 
a case should consider. In a case where the designated doctor is asked to 
resolve a dispute on assignment of impairment rating, some designated doctors 
have gone further and rendered a decision on maximum medical improvement. 
Subsection (j) answers this question by requiring the designated doctor to 
address only the issue in dispute. This will speed the resolution process and 
prevent re-examination of issues previously resolved or not in dispute. 
 Accurate record-keeping and timely filing of reports is important in the 
designated doctor process to enable the commission to meet its statutory duty to 
monitor health care providers and ensure compliance with the Act and commission 
rules relating to health care, medical policies, fee guidelines, and impairment 
rating. 
 Again, in response to changes made to the Texas Labor Code by House Bill 1089 
74th Legislature, 1995, subsection (p) provides sanctions which may be imposed 
on noncompliant designated doctors. The penalties imposed will encourage 
compliance. 
 Subsection (m) exempts designated doctor examinations from the requirements for 
preauthorization of additional testing when it is required by the AMA Guides for 
determining an impairment rating. This exemption was made for three reasons. 1) 
Preauthorization requires coordination with the employee's treating doctor who 
would be required to request the authorization. This process could create a 
conflict of interest if the treating doctor did not agree with the designated 
doctor regarding the necessity of the testing, particularly if it is the 
treating doctor's determination that is being challenged. 2) Preauthorization 
takes time and would cause a delay in the timely resolution of the dispute. 3) 
Testing ordered by designated doctors will be monitored through the commission's 
proposed automated reporting system which will alert the Medical Review division 
to abuses of the system due to unnecessary testing. In addition, testing 
necessary to assign an impairment rating will be specified in the AMA Guides and 
therefore, not simply at the discretion of the designated doctor. 
 Part of the impetus to set fees for designated doctors arose as a result of the 
wide disparity of charges for designated doctor examinations and perceived bias 
when some doctors are paid more than others. The fee schedule set out in the 
proposed amendment to sec.130.6 was a graduated schedule based on the length of 
treatment. In response to public comment, the methodology for the fee schedule 
has been modified to take into account all components necessary for a designated 
doctor examination, including length of treatment. This fee schedule gives more 
flexibility by using a greater number of variables. The most important part of 
this concept is to separate the basic examination from the variable component of 
the number of body areas reviewed. Including length of time from the date of 
injury in the formula adjusts the fee for the complexity of the injury. In cases 
where additional testing is required and the designated doctor must incorporate 
the findings of a specialist into the report, an additional reimbursement is 
allowed. The monetary value of the component is based on fees for the component 
services as set in the commission's Medical Fee Guideline as well as a monetary 
consideration for factors that only affect designated doctors, such as 
scheduling and paperwork requirements, imposed by commission rules. The fee 
structure prohibits the fee for impairment ratings performed by more than one 
health care provider to exceed the fee which would be charged if the designated 
doctor had performed the complete impairment rating. This provision results from 
the philosophy that fees should be fair and reasonable, based on the value of 
the service performed, regardless of the number of health care providers 
performing the service. The new fee schedule is designed to ensure the quality 
of medical care by adequately compensating designated doctors and to achieve 
effective medical cost control by establishing limits. 
 The public benefit anticipated as a result of enforcing the rule will be 
possible lower costs for the health care provided because the rule establishes 
standard reimbursement for the designated doctor services as well as indicates 
all services which are included in the fee. Previously such services may have 
been billed for separately. With the increased requirements placed on designated 
doctors for their expertise in application of the AMA Guides, a potential 
decrease in the number of dispute proceedings to resolve the issues of 
certification of maximum medical improvement and assessment of impairment may 
result. In addition, the number of designated doctor determinations overturned 
by the appeals panel process should be greatly reduced. Fewer disputes may 
result in savings to both insurance carriers and health care providers. Summary 
of comments and responses are as follows. 
 Comments on the proposed new rule were received from: Texas Healthcare System; 
Straughan Abrams Management Services, Inc.; Texas Orthopedics, Sports and 
Rehabilitation Associates; Professional Medical Services; Texas Medical 
Association; Texas Workers' Compensation Insurance Fund; Alliance of American 
Insurers; Sports and Spine Association; American Insurance Association; 
Travelers Insurance; and four individuals. 
 Testimony regarding the proposed new rule was received at the May 3, 1995 
public hearing from: Disability Evaluation Center; Impairment Rating Facts; the 
Texas Chiropractic Association; Hammerman and Gainer; the Texas Workers' 
Compensation Insurance Fund; the Alliance of American Insurers; Sports and Spine 
Associates; the Texas Medical Association; the American Insurance Association; 
Phillip and Akers; Sedgewick Claims Management Services; and six individuals. 
 All commenters were generally in support of the proposal, while making 
suggestions for some revisions. 
 The following comments were received on subsection (a). 
 COMMENT: One commenter recommended adding the word "written" to the last phrase 
of (a), prior to subsection (1). The commenter felt this would establish a means 
for the commission to verify compliance with sec.130.6(c) and (d). 
 RESPONSE: The commission agrees with adding the word "written" as this addition 
would provide clarification to all parties. As amended, this phrase would read, 
"The commission's written order shall also:" 
 The following comments were received on subsection (b). 
 COMMENT: One commenter recommended adding that the rule stipulate, "(1) 
Designated doctor may not become the injured employee's treating doctor after 
the exam. (2) Designated doctor should only address those issues in dispute." 
 COMMENT: Several commenters agreed with the provision that precludes a doctor 
who has previously treated or examined an employee from becoming a designated 
doctor for a dispute involving that employee and recommends expanding this to 
preclude doctors who are currently or who may in the future treat the employee 
from acting as a designated doctor. One commenter added however, that he felt 
the Texas Labor Code, sec.408.122(b) allows treating physicians to act as 
designated doctors if the employee and the insurance carrier or employer agree. 
 COMMENTER: Another commenter recommended prohibiting the designated doctor from 
addressing issues that neither party disputes. 
 RESPONSE: The commission agrees that a previous treating doctor cannot be the 
designated doctor as specified in subsection (b) and has modified sec.126. 
10(b)(8) to also prohibit a designated doctor from subsequently becoming the 
treating doctor. The language of (b)(2) has also been modified to disallow a 
doctor from becoming the designated doctor for a dispute if the doctor has 
treated the employee in the past 12 months or with regard to the medical 
condition to be evaluated by the designated doctor. This same restriction is 
applied to an ancillary tester in subsection (l). This will assist in ensuring 
an unbiased designated doctor determination of maximum medical improvement (MMI) 
and impairment rating (IR). Noncompliance by a designated doctor could warrant 
suspension and/or removal from the designated doctor list. 
 The commission agrees that the issue in dispute should be the only issue the 
designated doctor addresses. The commission has added the following to 
subsection (a) "disputes maximum medical improvement; an assigned impairment 
rating; or maximum medical improvement and an assigned impairment rating" and to 
subsection (j) "The designated doctor shall address the issue(s) in dispute and 
confine the report as described in subsection (n) to only those issues. When the 
impairment rating is the only issue in dispute, the doctor shall assess an 
impairment rating without regard to maximum medical improvement." 
 COMMENT: Commenters are concerned that the term economic association as used in 
subsection (b)(3) is overly broad and recommend defining the term. 
 RESPONSE: The commission agrees and has added the following definition of 
disqualifying association be included in sec.126.10(a)(4): 
 "(4) Disqualifying Association-Any association which may reasonably be 
perceived as having potential to influence the conduct or decision of the 
designated doctor. 
 (A) A disqualifying association between a designated doctor and a party may 
include: 
 (i) receipt of income, compensation, or payment of any kind not related to 
medical services provided by the doctor; 
 (ii) shared investment or ownership interest; 
 (iii) contracts or agreements which provide incentives, such as, referral fees, 
payments based on volume or value, and waiver of beneficiary coinsurance and 
deductible amounts; 
 (iv) contracts or agreements for space or equipment rentals, personnel 
services, management contracts, referral services, or warranties, or any other 
services related to the management of the doctor's practice; or 
 (v) personal or family relationships. 
 (B) Receipt of normal payments rendered for services provided pursuant to 
managed care/preferred provider contracts or any payment in accordance with the 
Texas Workers' Compensation Act and rules, is not considered a disqualifying 
association." 
 The commission has modified 130.6(b)(3) to read as follows: 
 "not have any disqualifying association as specified in  sec.126.10(a) of this 
subtitle." 
 COMMENT: One commenter voiced concern that the economic association constraint 
is over broad and will unnecessarily exclude all doctors who are part of a 
managed care network with which an employer or workers' compensation carrier has 
contracted. The commenter believed that there is no statutory authority to 
preclude doctors who share office space or are economically associated with the 
employer or carrier from being designated doctors and points out that 
affiliation with personal injury attorneys, labor unions and employee 
organizations are not addressed. The commenter recommended that economic 
associations or office location not disqualify the doctor from serving as a 
designated doctor, or in the alternative, the doctor should be required to 
disclose the extent of these affiliations to TWCC. 
 RESPONSE: The commission agrees that the term economic association could be 
construed too broadly and therefore has substituted the term "disqualifying 
association" as defined in Section 126.10(a). In addition, the commission agrees 
that the doctor should report these affiliations to TWCC and has incorporated 
this language in sec.126.10(b)(5) "within 48 hours of receiving notice of being 
selected as a designated doctor notify the commission field office of any 
disqualifying association." This requirement has been incorporated into the 
application which the doctor must submit requesting to be added to the 
Designated Doctor List. Section 126.10(b)(5) and (c) have been modified to 
exclude the requirement of submitting copies of contracts to the commission and 
to require a designated doctor to notify the commission of disqualifying 
associations. 
 COMMENT: Two commenters expressed concern that doctors belonging to managed 
care groups would be suspect and withdrawn from the designated doctor list. In 
addition, commenters recommended that other economic interests such as with 
personal injury attorneys, labor unions, and employee associations should also 
be declared. 
 RESPONSE: The commission recognizes the concern expressed by the commenter and 
has included a definition of the term "disqualifying association" in 
sec.126.10(a). The commission disagrees with the commenters conclusions that the 
designated doctor will be withdrawn from the list of approved doctors based 
solely on disclosure of economic associations. It is economic association which 
may reasonably be perceived as having the potential to influence the conduct or 
decision of the designated doctor that are sought to be addressed. 
 The commission agrees with the commenters recommendation that any economic 
association should be disclosed to the commission, not just the employer and 
carrier. Therefore, the current language in (b)(3) has been deleted and replaced 
with the following language: "not have any disqualifying association as 
specified in sec.126.10(a) of this title; and" 
 This language regarding disqualifying association has also been incorporated 
into the designated doctor application. 
 COMMENT: One commenter agreed with current policy requiring doctors to declare 
economic interest in other facilities or services in which they may have a 
financial interest but not declare economic associations. 
 RESPONSE: The commission agrees that the doctors must notify the commission and 
carrier of any financial interest which is greater than 5.0% in a referral 
provider's practice as required by sec.134.100 and sec.134.101. The commission 
disagrees that this requirement is sufficient in notifying the doctors of the 
commission's expectations that they avoid perceived bias due to economic or 
other associations as they serve as designated doctors. 
 The following comments were submitted regarding subsection (d). 
 COMMENT: Several commenters expressed the view that 14 days to set a designated 
doctor appointment does not allow sufficient time for notification, scheduling 
and receipt of records and recommended increasing time for setting the 
appointment from 14 days to 21, 28 or 30 days. The commenters were particularly 
concerned because a doctor can be removed from the Designated Doctor list for 
multiple refusals to meet this timeframe. 
 COMMENT: Another commenter recommended increasing time for the appointment to 
occur to 21-28 days or require the final TWCC-69 report with all documentation 
be returned 35 days from the date the appointment was made. 
 RESPONSE: The commission agrees that the 14 day timeframe from the commission 
notice to the scheduling of the required designated doctor examination is too 
restrictive because timeframes for setting and rescheduling designated doctor 
examinations overlap with the timeframes for receiving medical records, creating 
a situation where the appointments occur before the medical records are even 
scheduled to arrive. The commission has established a window of time for the 
examination to occur from when the commission processes a notice of the dispute. 
Upon notice of the dispute, staff will concurrently begin the designated doctor 
appointment process. The designated doctor is required to set an examination 
date between 14 and 24 days of the commission order for a designated doctor 
appointment. This process has been clarified by modifying sec.130.6 as follows: 
 - creating an initial order that includes both the dispute notification, 
assignment of a designated doctor, designated doctor appointment information, 
and notification of opportunity to agree on a designated doctor in subsection 
(a); 
 - establishing the timeframe for commission staff to schedule the designated 
doctor appointment in subsection (a); 
 - including in subsection (c) the employee's requirement to attend the 
commission assigned designated doctor appointment if no agreement is reached; 
 - deleting subsection (d) in its entirety; 
 - modifying subsection (e) [now (d) and (e)] to clarify the procedure to be 
followed when an agreement is reached on designated doctor selection; 
 - adding a statement providing that a timely agreement will supersede the 
initial order identifying a commission-selected designated doctor in subsection 
(f); and 
 - clarifying the agreement process in (e) to minimize the confusion between the 
commission order and the agreement. The commission has deleted the requirement 
for the carrier to notify the injured employee allowing the commission's order 
to be sufficient notice; 
 The proposed rules, sec.130.6 and sec.126.10, both refer to sec.130.4 and 
sec.130.5 of this title (relating to Presumption that Maximum Medical 
Improvement has been Reached and Resolution When MMI has not been Certified; and 
Impairment Rating Disputes, respectively) for the timeframes for setting an 
appointment, (currently 14 days). As sec.130.4 and sec.130.5 are in the process 
of being revised, the timeframes which apply to designated doctors have been 
moved to sec.130.6 and proposed new sec.126.10, which specifically address the 
Designated Doctor List and responsibilities. In addition, the timeframe for 
setting appointments has been changed from 14 days, to appointments occurring no 
earlier than 14 and not later than 24 days from the date of the commission order 
assigning the designated doctor. This change is included in sec.130.6(a), and 
new sec.126.10(b)(3) refers to sec.130.6. 
 The commission disagrees with requiring the TWCC-69 to be filed 35 days from 
the date the appointment was made since  sec.130.1 of this title (relating to 
Reports of Medical Evaluation: Maximum Medical Improvement and Permanent 
Impairment) requires the form to be submitted within seven days of the 
examination. A change in the filing time for the TWCC-69 would need to be 
addressed at the time of a revision of sec.130.1 of this title. In addition, an 
increase in the filing time of this magnitude would defeat the goal of reaching 
quick decisions to resolve disputes in a timely manner. However, subsection (n) 
does allow an extension when additional testing must be performed. 
 COMMENT: One commenter expressed concern that TWCC staff is not providing 
information to the designated doctor relating to medical records, nature of 
injury and previous treatment, when setting up the examination. Then during the 
examination, "the doctor many times hasn't a clue to what part of the body is 
injured and must make his Impairment evaluation from a variety of ailments 
apparently including but not limited to the compensable injury." 
 COMMENT: Several commenters stated that a more accurate assessment could take 
place if the doctor was given an indication of what the injury was and told what 
the accepted compensable injury(s) is beforehand. 
 COMMENT: Another commenter recommended that the notification letter include the 
accepted compensable injury. 
 COMMENT; Another commenter recommended that time and letters could be saved if 
TWCC would notify the designated doctor of the injury, especially in cases where 
multiple claims have been established. 
 RESPONSE: The commission disagrees. The extent and level of the compensable 
injury may change throughout the life of the claim as different body areas are 
affected or treated. Therefore, non-medical commission staff would be 
responsible for reviewing the medical records submitted to attempt to determine 
the specific body parts involved in the compensable injury. This could cause 
inaccurate information to be transmitted. The designated doctor is responsible 
for determining the extent of injury based on review of medical records and 
physical examination of the injured employee which should include discussion of 
patient complaints. An addition to sec.130.6(h) to clarify the responsibilities 
of both the carrier and treating doctor should aid in getting all the records to 
the designated doctor. The following language has been added to subsection (h): 
"The treating doctor and insurance carrier are both responsible for sending to 
the designated doctor all the employee's medical records relating to the medical 
condition to be evaluated by the designated doctor that are in their possession 
without a signed release from the employee. The designated doctor is authorized 
to receive the employee's confidential medical records to assist in the 
resolution of maximum medical improvement and impairment rating disputes. The 
medical records must not contain any marks, highlights, or other alterations 
placed on such records for the purpose of communicating with or influencing the 
designated doctor. The medical records must be received by the designated doctor 
at least three days prior to the date of the appointment as specified in the 
commission order. If the medical records are marked, highlighted, altered, or 
unrelated to the medical condition to be evaluated by the designated doctor, the 
designated doctor shall notify the commission and report the noncompliance of 
the treating doctor and/or insurance carrier. Noncompliance with this subsection 
is a Class C administrative violation under the Texas Labor Code sec.408.125 and 
may be subject to an administrative penalty not to exceed $1000. If the 
designated doctor has not received the medical records at least three days prior 
to the examination, the designated doctor's office shall notify the commission 
at the appropriate field office and the appropriate commission staff will send 
an order to the treating doctor and/or insurance carrier for the delivery of 
medical records." 
 COMMENT: One commenter recommends adding the designated doctor's mailing 
address to the EES-16 letter in order for the treating doctor to forward medical 
records to the proper address. 
 RESPONSE: The commission agrees with adding the designated doctor's mailing 
address to the EES-16 letter since this may expedite the receipt of medical 
records by the designated doctor. In addition, the commission has in subsections 
(a)(1) and (e)(4) replaced the term "business address" with "practice address" 
to clarify where the examination will take place. 
 The following comments were received on subsection (e). 
 COMMENT: One commenter recommended adding to subsection (e) the following 
information to the carrier's letter: "the treating doctor's name, business 
address and telephone number". The commenter believes that this will facilitate 
communication between the designated doctor and the treating doctor. 
 RESPONSE: The commission disagrees with adding this information because the 
revision as outlined in subsections (d) and (e) will eliminate the need for a 
notification to go to the designated doctor from the carrier. 
 COMMENT: Another commenter recommends modifying (e)(2) by adding the following 
language: "and if known, the employee's telephone number". 
 RESPONSE: The commission agrees with modifying subsection (e)(2) by adding the 
recommended injured worker information. The addition of the employee's telephone 
number will be beneficial to the commission to assist in contacting the employee 
for confirmation of the agreement. 
 COMMENT: One commenter recommended adding the carrier's name, billing address 
and name of adjuster to the notice required by subsection (e). This would speed 
up both the report and the initiation of impairment income benefits. 
 RESPONSE: The commission disagrees because this notice will be sent to the 
commission, not to the designated doctor; however, the commission's notice of 
the designated doctor appointment will contain the carrier's name. 
 The following comments were received on subsection (f). COMMENT: One commenter 
recommended adding a timeframe of 48 hours, from receipt of the notification 
from the insurance carrier, for the commission to contact the injured employee 
to confirm a designated doctor agreement and send the order confirming the 
agreement. 
 RESPONSE: The commission agrees with the intent of the commenter that a 
timeframe should be established for the commission response but disagrees that 
it should be in the rules. The commission is currently developing a mechanism to 
automate these letters and will develop internal procedures to ensure that 
notifications are processed timely. 
 In order to further clarify confirming agreements, a final sentence has been to 
subsection (f) as follows, "If the commission cannot confirm the agreement with 
the employee, the commission will presume that an agreement was not made and the 
initial order directing the employee to be examined by a designated doctor 
selected by the commission shall remain in effect." This should ensure the most 
timely resolution and processing of agreements. The word "timely" has also been 
added in the first sentence of subsection (f) to ensure understanding that the 
commission will not consider any agreement valid if the commission does not 
receive a timely and proper notice about the agreement. 
 The following comments were received regarding subsection (g). 
 COMMENT: One commenter recommended that the employee be required to notify the 
carrier, in addition to the commission, of the time and date of the rescheduled 
examination to allow the carrier to contact the employee to determine if the 
employee has any transportation needs. This provision would also allow carriers 
to establish records needed to process bills for examinations cancelled or not 
attended. 
 RESPONSE: The commission agrees that the carrier should be notified because the 
carrier is responsible for payment of any commission ordered examinations which 
were rescheduled within 24 hours of the appointment and therefore, should be 
notified of rescheduled appointments. The commission disagrees that the injured 
employee should be responsible for these notifications and has required that the 
designated doctor's office perform the notifications. The last sentence of 
subsection (g) has been changed as follows: "Within 24 hours of rescheduling, 
the designated doctor shall contact the commission field office and the 
insurance carrier with the time and date of the rescheduled examination." 
 COMMENT: Several commenters requested that an emergency situation be defined by 
rule and suggested adding language similar to that in sec.130.4(i). 
 RESPONSE: The commission agrees to clarify an emergency situation by modifying 
the language in subsection (g) to read as follows: "The 24 hour requirement will 
be waived in an emergency situation (such as a death in the immediate family or 
a medical emergency)." 
 COMMENT: Several commenters recommended adding a provision for designated 
doctors who encounter emergencies to reschedule appointments within 27 working 
days. One commenter suggested adding the following, "The rescheduled examination 
shall be set for a date within 27 working days from the original exam date." 
 RESPONSE: The commission agrees that the designated doctor may need to 
reschedule and has changed the first sentence of subsection (g) to read as 
follows: "The designated doctor and the injured employee shall contact each 
other if there exists a scheduling conflict for the designated doctor 
appointment. The designated doctor or the injured employee who has the 
scheduling conflict must make the contact at least 24 hours prior to the 
appointment. The 24 hour requirement will be waived in an emergency situation 
(such as a death in the immediate family or a medical emergency)." 
 The commission disagrees that 27 days should be allowed to reschedule 
appointments when the designated doctor must cancel the appointment. Rescheduled 
examinations are to occur within seven days of the original examination date to 
ensure timely resolution of the dispute. Therefore, the references to sec.130.4 
of this title (relating to Presumption that Maximum Medical Improvement has been 
Reached and Resolution When MMI has not been Certified) and sec.130.5 of this 
title (relating to Impairment Rating Disputes) have been deleted and subsection 
(g) has been modified to state: "The rescheduled examination shall be set for a 
date within seven days of the originally scheduled examination, unless an 
extension is granted by the field office." 
 COMMENT: One commenter recommended allowing a physician partner to substitute 
for the designated doctor, should an emergency arise. 
 RESPONSE: The commission disagrees. The designated doctor assigned to the 
dispute should fulfill that duty within the required timeframe. The designated 
doctor's partner will have different disqualifying associations. If 
circumstances exist beyond the doctor's control which would cause the doctor to 
be unable to perform the examination, the doctor must reschedule or, if 
rescheduling is not feasible, contact the local field office and the commission 
will assign another designated doctor. 
 The following comments were received regarding subsection (h). 
 COMMENT: One commenter recommended deleting the statement in sec.130.6(h) 
regarding the responsibility of the designated doctor to notify the commission 
of records not received three days prior to the visit. The commenter recommended 
that the rule require the doctor to wait to notify the commission when the 
patient arrives, if the records are not available. 
 RESPONSE: The commission disagrees. In order to expedite the impairment rating 
process, the medical records should be received and reviewed prior to the 
examination. In addition, the doctor may have to schedule a subsequent 
examination after receiving the records if new information is discovered after 
the review of records. This requirement is not intended to be a burden upon the 
doctor or the doctor's staff, but rather to increase the efficiency of the 
process and provide assistance as needed. 
 COMMENT: One commenter recommended that the TWCC take the extra step necessary 
to ensure that all the appropriate medical records are forwarded to the 
designated doctor prior to the patient's scheduled examination. 
 COMMENT: Another commenter questioned how all the medical records would be 
provided to the designated doctor especially when a new treating doctor has been 
assigned and may not have all the records. 
 RESPONSE: The commission agrees. The commission provides written notification 
of a designated doctor examination to all parties including the carrier and 
treating doctor. The commission will implement procedures to modify the 
notification order to include specific directions for the carrier and treating 
doctor to forward all applicable medical records to the designated doctor prior 
to the date of the appointment. If either party fails to comply with this order, 
the commission should be notified by the designated doctor in order for the 
field office staff to assist in obtaining the records as specified in subsection 
(h). The commission has modified subsection (h) as follows: "...The medical 
records must not contain any marks, highlights, or other alterations placed on 
such records for the purpose of communicating with or influencing the designated 
doctor. The medical records must be received by the designated doctor at least 
three days prior to the date of the appointment as specified in the commission 
order. If the medical records are marked, highlighted, altered, or unrelated to 
the medical condition to be evaluated by the designated doctor, the designated 
doctor shall notify the commission and report the noncompliance of the treating 
doctor and/or insurance carrier. Noncompliance with this subsection is a Class C 
administrative violation under the Texas Labor Code sec.408.125 and may be 
subject to an administrative penalty not to exceed $1000." This last sentence, 
regarding noncompliance and Class C administrative violations, has also replaced 
the last sentence in subsection (i) for consistency. 
 COMMENT: One commenter recommended increasing the number of days the designated 
doctor has to notify the field office when medical records have not been 
received from three days to seven days which will allow field office staff more 
time to assist in obtaining the records. 
 Another commenter recommends increasing the number of days for forwarding 
medical records from three to five to ensure that the doctor has sufficient time 
to review them. 
 A third commenter expressed concern regarding the three day timeframe. 
 RESPONSE: The commission disagrees with expanding the timeframe because three 
days should provide the appropriate amount of time necessary to obtain the 
required medical records from the carrier and/or treating doctor. It is the 
commission's intent for the designated doctor to have the medical records prior 
to the examination and the designated doctor can notify the field office at any 
time after the carrier's and treating doctor's timeframe for submission to the 
designated doctor has expired. 
 COMMENT: A commenter recommended specifying the reports to be included with the 
medical records which the treating doctor is responsible for forwarding by 
adding, "independent medical examination reports, referral doctor reports." The 
commenter believed the reference to specific reports increases the chances of 
the designated doctor receiving medical records from all doctors. 
 RESPONSE: The commission disagrees. The carrier will be able to send the 
required medical exam reports and any referral doctor reports the treating 
doctor may not have. The treating doctor will be able to send reports of the 
most recent treatment and services that the carrier won't have. Listing specific 
reports does not add to the requirements of the rule. In addition, if the 
designated doctor believes that the records received are insufficient, the field 
office staff's assistance in procuring the additional records should be 
requested. 
 COMMENT: One commenter recommended that the carrier be permitted to forward 
medical records to the commission which could forward missing records to the 
designated doctor upon request and that the commission notify the carrier if and 
when the commission forwards medical records to a designated doctor. 
 COMMENT: Another commenter recommended that the carrier forward records to the 
commission or the carrier forward records directly to the designated doctor with 
a form letter listing all records attached. 
 COMMENT: Another commenter recommended that the carrier forward well-organized, 
clean copy of all medical records, without highlighting or comments to the 
designated doctor with copies to TWCC and the worker. 
 COMMENT: Another commenter stated that carriers need to be cautious with regard 
to contacting designated doctors and since the commission pushed for an 
amendment to House Bill 1089 which would preclude contact, the commission should 
be responsible for forwarding medical records to the designated doctor. 
 RESPONSE: The commission agrees that a serious problem exists with providing 
medical records to the designated doctor but disagrees with forwarding these 
records through the commission. In order to expedite the dispute resolution 
process, the treating doctor and the carrier will be required to send to the 
designated doctor medical records which do not contain any marks, highlights, or 
other alterations placed on such records for the purpose of communicating with 
or influencing the designated doctor. 
 COMMENT: Several commenters recommended that TWCC send the HR-16 letter 
(notification of commission-selected designated doctor appointment) to all 
previous treating physicians, consulting and RME physicians, psychologists and 
other health care providers in order for all the previous providers to forward 
medical records to the designated doctor so that the designated doctor may 
obtain complete records. One commenter expressed concern with the proposed 
rule's placement of the responsibility on the designated doctor to coordinate 
and assure receipt of all medical records and stated that this is "illogical, 
impractical and often impossible." 
 COMMENT: Several commenters recommended that all previous providers be required 
to submit medical records to the designated doctor without a release of 
information request. One commenter added that the commission field office should 
be contacted if a provider refuses to forward records without a release. 
 COMMENT: Another commenter questioned if TWCC would request medical records 
from previous treating physicians. 
 RESPONSE: The commission disagrees with the solution of sending a notice to all 
previous providers because the commission may not know all the previous 
providers and determining this from the carrier will cause unnecessary delays. 
In addition, this would cause an administrative burden and result in an 
excessive postage expense. However, the commission recognizes the problem and 
has included a requirement that both the carrier and treating doctor forward 
medical records directly to the designated doctor which should ensure that the 
designated doctor has all the medical records. 
 COMMENT: One commenter requested that the field offices send notices to the 
employee and treating doctor in adequate time to allow the treating doctor 10 
days to submit records in accordance with sec.133.2 of this title (relating to 
Sharing Medical Reports and Test Results) and recommends that the following 
language be used, "The treating doctor, all other health care providers, 
required medical exam doctors, and healthcare facilities involved in either 
treatment, diagnosis or evaluation of the work related injury are responsible 
for forwarding copies of the employee's medical records in accordance with 
sec.133.2(a) including reports, radiographic films, and test results to the 
designated doctor. The commission field office may be contacted if a provider or 
facility refuses to send records without a release of information request on a 
worker's compensation patient. If the designated doctor has not received the 
medical records at least three days prior to the examination, the designated 
doctor's office shall notify the commission at the appropriate field office...". 
 RESPONSE: The commission agrees that sec.133.2 allows 10 days for a treating 
doctor to submit records to a designated doctor, but the commission does not 
want the parties to wait any longer than necessary to send them, as this will 
decrease the timeliness of the resolution of the dispute. Therefore no timeframe 
is included in sec.130.6. 
 COMMENT: One commenter expressed concern that the order requiring the treating 
doctor to forward medical records may go unnoticed since it is on the second 
page of the designated doctor appointment order. 
 RESPONSE: The commission agrees. The commission is currently working on 
automation of letters for the designated doctor process which includes modifying 
the current structure of the commission orders for commission selected 
designated doctor appointments and agreed-upon designated doctor appointments. 
The commission will incorporate the commenters' recommendation when the content 
and style of the letters are revised. 
 The following comments were received on subsection (i). 
 COMMENT: Several commenters expressed the view that the designated doctor could 
most readily obtain medical records from the insurance carriers and recommends 
that subsection (i) be amended to allow the designated doctor to initiate 
communication with the insurance carrier and/or with any doctor who has 
previously treated or examined the employee for the work-related injury to 
obtain complete records. 
 COMMENT: Another commenter recommended that subsection (i) be revised to allow 
the designated doctor to contact the insurance carrier for the sole purpose of 
obtaining records, if necessary. 
 COMMENT: A third commenter recommended allowing the carrier to contact the 
designated doctor to ensure complete medical records are available. Further, the 
commenter agrees that all parties should be prohibited from initiating 
communications with the designated doctor before the employee is examined. 
 COMMENT: A fourth commenter requested that the carrier be allowed to send a 
letter to the designated doctor addressing relevant data on the claimant's 
condition with copies sent to the claimant, treating doctor and TWCC. 
 RESPONSE: The commission agrees that the insurance carrier is an appropriate 
party to forward medical records. Recently passed House Bill 1089 prohibits 
certain communication with a designated doctor to prevent undue influence on the 
designated doctor's decision. The forwarding of medical records by the treating 
doctor and insurance carrier that are without any marks, highlights, or other 
alterations placed on such records for the purpose of communicating with or 
influencing the designated doctor, is not a communication which was meant to be 
prohibited by House Bill 1089. The designated doctor can contact other doctors 
that have previously treated or examined the injured employee for the work 
related injury. The commission disagrees that it is appropriate for the 
designated doctor to contact the insurance company or for the insurance company 
to send the designated doctor a letter. If the designated doctor fails to 
receive records within 3 days of the appointment, the doctor should contact the 
commission field office. 
 COMMENT: One commenter recommended rewording subsection (i) to allow the 
designated doctor to contact previous doctors before and after the examination 
to obtain medical records and to contact the insurance adjustor for the sole 
purpose of obtaining a complete set of records. The commenter also recommended 
that violation of the provision be an administrative violation. 
 RESPONSE: The commission agrees in part. House Bill 1089 amends the Texas Labor 
Code sec.408.125 to limit contact with the designated doctor to avoid undue 
influence on the doctor's decision. This provision prohibits an insurance 
carrier from communicating with a designated doctor but allows a designated 
doctor to initiate communication at any time with any doctor who has previously 
treated or examined the injured employee for the work-related injury. If the 
designated doctor needs to contact anyone else, this can be done through 
commission staff. Violation of this provision is a Class C Administrative 
Violation. Section 130.6(h) provides the procedure for the designated doctor to 
receive medical records from the treating doctor and insurance carrier that are 
without any marks, highlights, or other alterations placed on such records for 
the purpose of communicating with or influencing the designated doctor, to 
ensure the designated doctor receives a more complete set of medical records. 
 COMMENT: Several commenters expressed concern that an Ombudsman may contact a 
designated doctor and recommends defining exactly what staff are approved to 
contact the designated doctor. 
 RESPONSE: The commission agrees with the concern that an ombudsman is not an 
appropriate party to contact the designated doctor and has added the following 
statement to subsection (i) to clarify this issue, "An ombudsman is not 
considered appropriate staff to contact the designated doctor and should 
communicate with a designated doctor only through appropriate commission 
personnel." 
 The following comments were received on subsection (k). 
 COMMENT: One commenter recommended increasing the timeframe for retesting in 
sec.130.6(k) from seven days to 30 days to allow time for a muscle spasm or 
other acute medical condition to resolve. 
 RESPONSE: The commission disagrees. The impairment rating process should not be 
delayed since it is critical to timely resolution of the dispute. Retesting 
should be performed as soon as possible and seven days should be sufficient time 
to obtain proper testing results. 
 COMMENT: Several commenters recommended adding specific wording to clarify the 
intent of this subsection with regard to how often a test may be rescheduled 
before the test is declared invalid and to eliminate retesting ad infinitum. 
Some commenters suggested that retesting be limited to one time, while others 
would leave it to the designated doctor's clinical judgment or require 
commission approval for retesting. 
 COMMENT: Other commenters questioned the practicality of this section. One 
commenter felt that the wording of subsection (k) presupposes that inconsistency 
is a bad thing in testing and questioned whether a test that shows improvement 
would have to be rescheduled simply because it was inconsistent with previous 
examinations. 
 COMMENT: Another commenter recommended changing the wording in subsection (k) 
from "invalid to inconclusive" and requiring rescheduling be within 27 working 
days. If there is a clinical basis for no further testing designated doctors 
should make this recommendation. 
 COMMENT: Another commenter challenged the use of the terms "consistency" and 
"validity" as used in subsection (k). 
 RESPONSE: The commission agrees that the subsection needs clarification as to 
when retesting should be performed and subsection (k) has been reworded as 
follows: "When performing range of motion testing, if the AMA Guides specifies 
that additional testing be performed because of consistency requirements, the 
designated doctor shall reschedule testing within seven days of the first 
testing unless there is no clinical basis for retesting and then the designated 
doctor must document this in the narrative notes with the clinical explanation 
for not recommending re-examination." 
 The commission disagrees with establishing an inflexible limit of one 
additional test and prefers to leave this decision to the designated doctor's 
medical judgment within the AMA Guides. All designated doctors will complete the 
commission-approved training, which will include in its curriculum guidance for 
determining how often retesting may be necessary under the AMA Guides. 
 The following comments were received regarding subsection (l). 
 COMMENT: One commenter pointed out that requiring a physical therapist, who is 
performing impairment rating tests on a range of motion measuring machine rather 
than an inclinometer, to complete the commission-approved training, seems 
unnecessary. These type machines are accurate and do not require the physical 
therapist to analyze the data. 
 RESPONSE: The commission disagrees. The testing must be performed in accordance 
with the requirements set forth in the AMA Guides. Therefore, the provider 
performing the testing must be proficient in the application of the AMA Guides 
and receive commission-approved training. In addition, sole use of the "computer 
generated" programs used to assist in conducting measurements without knowledge 
of the impairment rating processes as required by the AMA Guides may result in 
inaccurate application of the AMA Guides and unnecessary disputes. 
 COMMENT: One commenter questioned the training and tracking of ancillary 
testing providers within their scope of practice as related to the TWCC 
impairment rating system. 
 RESPONSE: The commission disagrees that subsection (l) needs to clarify the 
training requirements for ancillary testing providers. A group of health care 
providers has been organized to make recommendations to staff regarding the 
curriculum for commission-approved impairment rating training which will include 
components necessary to address proper performance by ancillary testing 
providers. In addition, the designated doctor will be responsible for ensuring 
that an ancillary testing provider chosen has successfully completed the 
required training which includes passing the written examination when it is 
available. The language in this subsection has been revised for clarity. 
 COMMENT: Several commenters recommended deleting "or psychological testing" 
from subsection (l) because training psychologists in the use of the AMA Guides 
for impairment rating of areas outside their scope of practice is impractical 
and unnecessary. One commenter recommended adding psychological testing to 
subsection (m). 
 RESPONSE: The commission disagrees with adding psychological testing to 
subsection (m) and agrees with deleting "or psychological testing" in subsection 
(l) because psychological testing is not specifically required by the AMA Guides 
in order to perform an impairment rating. 
 COMMENT: One commenter recommended that the taking of measurements for the 
impairment rating examination should be performed by the doctor or taken right 
in front of the doctor under the doctor's direct supervision. 
 RESPONSE: The commission disagrees with requiring the designated doctor to 
conduct the measurements. The designated doctor is responsible for the integrity 
of the entire evaluation process including the testing component. As specified 
in subsection (l), key testing components of the impairment rating examination 
should be performed by the designated doctor or by qualified, trained health 
care providers that the designated doctor can rely on. Section 126.10(f) 
indicates that a doctor may lose the privilege to serve as a designated doctor 
when the integrity of ancillary providers' testing is not properly analyzed or 
examined prior to submitting the final impairment rating. 
 COMMENT: Another commenter questioned what commission-approved training would 
consist of, who will provide the training, who will be allowed to participate in 
development of the training and how often will training be required for 
ancillary personnel. 
 RESPONSE: A group of health care providers including doctors and other 
providers, has been organized to make recommendations for a commission-approved 
curriculum for the impairment rating training which will include a written 
examination. The commission disagrees that the rule needs to clarify the 
training requirements for ancillary testing providers; training for these 
providers will be included in the commission-approved curriculum. In addition, 
the commission will establish procedures for approving vendors to provide the 
training. 
 The following comments were received on subsection (m). 
 COMMENT: One commenter requested clarification on the definition of "self-
referral" as it appears contradictory in sec.126.10(d) and sec.130.6(m). 
 RESPONSE: The commission disagrees with defining the term "self-referral" in 
sec.130.6, but has included a definition for "self-refer" in new sec.126.10(a) 
(5). The commission disagrees that the two rules are contradictory as subsection 
(m) references the referral of patients to complete the impairment rating 
examination, not for treatment. 
 COMMENT: One commenter recommended specific wording be added to reflect that 
the treating doctor maintain oversight and management of the overall treatment 
of the employee including additional testing. 
 COMMENT: Another commenter expressed concern that this subsection appears 
contradictory to sec.133.3 in which the treating doctor shall approve or 
recommend all health care and recommends that subsection (m) be revised to 
provide that the designated doctor will recommend additional testing, but the 
treating doctor would order the testing and forward results to the designated 
doctor. The commenter also recommended adding the following sentence to 
subsection (m), "Should the treating doctor not agree with the proposed 
recommendations, the designated doctor will presume MMI has been reached and 
assess the impairment accordingly." 
 RESPONSE: The commission disagrees. The designated doctor is responsible for 
ordering additional testing as necessary to perform an impairment rating and 
should not be required to go through the treating doctor for approval or 
coordination of this testing. The commission agrees that the treating doctor 
maintain oversight and management of the overall treatment, but obtaining 
testing for the one-time assignment of an impairment rating is not considered 
ongoing treatment that requires oversight and management by the treating doctor. 
Because coordination with the treating doctor is not required for impairment 
rating testing, there is no need for a provision in the rule for presumption of 
MMI. 
 COMMENT: One commenter questioned what would happen if the request for 
preauthorization for psychological testing was denied and the designated doctor 
is forced to assess an impairment rating without an accurate mental assessment. 
 RESPONSE: The commission agrees with the commenter's concern that 
preauthorization could unduly delay timely resolution of the dispute. The 
commission has modified subsection (m) to NOT require preauthorization of 
testing required to complete the impairment rating in accordance with the AMA 
Guides. In addition, the word "authorize" has been replaced with "perform" in 
this subsection because "authorize" may imply preauthorization. 
 The following comments were received regarding subsection (n). 
 COMMENT: One commenter contended that a seven-day timeframe is too short to 
provide quality evaluation reports and recommends that the requirement in 
sec.130.6(n), for completion and submission of the evaluation report, be 
increased from seven days to 14 days. 
 Another commenter expressed concern regarding the seven day time frame for 
submitting the report following retesting. 
 A third commenter felt a seven day time limit for filing a completed evaluation 
report did not allow sufficient preparation time and suggested that a more 
reasonable timeframe would be 14 to 21 days. 
 RESPONSE: The commission disagrees. The seven day timeframe for filing the 
Report of Medical Evaluation (TWCC-69) is required in sec.130.1(h). Section 130. 
6(n) establishes a new timeframe for the extenuating circumstance when the 
patient must be referred for additional testing and allows an additional seven 
days for doctors to submit a completed report following re-testing. This 
timeframe is necessary for timely resolution of the issues. 
 COMMENT: One commenter recommended adding a new section preceding subsection 
(n) which would set out specifically what items should be included in a 
designated doctor's report. 
 RESPONSE: The commission disagrees that the definition of a designated doctor 
report should be (1) limited to designated doctors and (2) included in 
sec.130.6. The Report of Medical Evaluation is defined by sec.130.1 of this 
title (relating to Reports of Medical Evaluation: Maximum Medical Improvement 
and Permanent Impairment) and any recommendations for clarification or 
definition of the report should be addressed by that rule which is currently in 
the process of being revised. However, the commission agrees with the concept of 
clearly defining which elements should be included in the report for any MMI/IR 
examination and will consider this addition in the appropriate rules. 
 The following comments were received regarding subsection (o). 
 COMMENT: One commenter questioned if a "specific logging form" would be 
developed to document compliance with the documentation requirements listed in 
sec.130.6(o). 
 RESPONSE: The commission disagrees with the need for TWCC to require specific 
logging forms. The designated doctor can maintain accurate records to reflect 
the items listed in sec.130.6(o) using his/her office's documentation processes. 
 COMMENT: Another commenter questioned that sec.130.6(o) referred to the receipt 
of medical records from the treating doctor or "any other party" and wanted to 
know if this allowed carriers to submit records to the designated doctor. 
 RESPONSE: The commission agrees that the proposed wording causes confusion and 
has clarified the provision of forwarding and receiving medical records in 
subsection (h) by stating that the carrier and treating doctor will forward 
records directly to the designated doctor as explained previously in responses 
to comments on subsection (h). 
 COMMENT: One commenter recommended substituting the term "any other party" with 
"person or organization" as "party" has been used to delineate persons with a 
direct interest in a dispute such as the carrier, claimant or subclaimant. 
 RESPONSE: The commission agrees to replace the term "party" with "person or 
organization" in subsection (o)(4) to provide clarification to the rule. 
 COMMENT: One commenter supported documenting the no-shows for employees so that 
when the patient doesn't show up for an appointment, there is documentation of 
non-compliance. 
 RESPONSE: The commission agrees. As specified in subsection (o), the designated 
doctor must maintain records to reflect the circumstances regarding a 
cancellation, no-show or other situation where the examination did not occur. 
This information will assist the commission in determining if the employee is 
being non-compliant. In addition, if the doctor cancels the appointment, the 
same information must be maintained and again, this information will assist the 
commission in determining compliance by the doctor as well. The commission has 
revised subsection (o)(2) to clearly apply to rescheduled examinations, as well 
as, the initially scheduled examination. 
 The following comments were received regarding subsection (p). 
 COMMENT: One commenter expressed concern that the proposed rule would penalize 
doctors for divergent interpretations when there is no definitive authority at 
the commission who can provide the doctors with guidance. 
 RESPONSE: The commission disagrees that a rule change is needed since there is 
no penalty for divergent interpretations when an explicit policy of TWCC or 
explicit indications in the AMA Guides do not exist. However, the commission has 
recognized that differing interpretations of the AMA Guides exist; thus, the 
impairment rating training curriculum will provide guidance for designated 
doctors on the use and interpretation of the AMA Guides. In addition, the 
commission will use statewide averages as an indicator of the doctor's 
application and knowledge of the AMA Guides. Doctors who fall significantly 
outside the averages may not be applying the AMA Guides in the same manner as 
other doctors, which creates unnecessary disputes. Likewise, the commission 
recognizes that due to specialization in the medical field, some doctors 
regularly treat the more complex cases and therefore, might acceptably have an 
impairment rating that deviates from the statewide average. This factor is just 
one which the division will consider in evaluating doctors. 
 COMMENT: Several commenters expressed concern about how "improper or incomplete 
examinations or reports," referred to in sec.130.6(p)(3) which prompt a refund 
to a carrier, will be determined. The commenters also questioned who would be 
responsible for determination of when an examination was improper or incomplete. 
 RESPONSE: The commission disagrees that additional clarification is necessary 
in the rule. Complete impairment ratings are listed in the components covered 
for reimbursement in subsection (r)(2), and additionally, through curriculum 
development, the components necessary for proper examinations and reports will 
be defined. Determinations of improper or incomplete examinations will be based 
upon elements explicitly required by TWCC, the AMA Guides, or through objectives 
in the impairment rating training curriculum. commission staff will use these 
criteria to make assessments of improper or incomplete examinations. 
 COMMENT: One commenter recommended amending subsection (p)(3) by adding the 
phrase, "failure to make the refund payment within 30 days of the commission's 
order to do so, shall subject the provider to the provisions of sec.126.10(d)", 
after the word, "performed". 
 RESPONSE: The commission agrees with the intent of this recommendation, but 
disagrees that this additional wording is necessary to ensure compliance with an 
order issued pursuant to sec.130.6(p)(3). Compliance with commission orders, 
including refund orders, have specific timeframes and penalties. Under sec.126. 
10(d)(6) all violations of the Act and rule may result in suspension and/or 
removal from the Designated Doctor List. 
 The following comments were received on subsection (q). 
 COMMENT: One commenter did not object to shortening the timeframe to pay income 
benefits to five days after the receipt of the designated doctor's report, but 
expressed concern with requiring payment upon receipt of a commission order 
because this could require payment before the five days have expired. The 
commenter felt that the five day timeframe is fast enough. 
 RESPONSE: The commission disagrees that subsection (q) should be revised 
because the intent is not to require payment prior to five days but to allow the 
commission to order payment if the report is not received within five days to 
ensure benefits begin as soon as possible. 
 COMMENT: One commenter expressed concern that there is no way for the carrier 
to withhold payment if they are contesting the designated doctor's findings and 
suggests that an expedited BRC be held. 
 COMMENT: Another commenter expressed concern with dispute process and 
overpayment of benefits pending setting of a benefit review conference (BRC) and 
clarification of designated doctor's reports. 
 RESPONSE: The commission disagrees. The carrier must pay benefits in accordance 
with this subsection and if the commission determines that the designated 
doctor's report was in error, and benefits were paid inappropriately, the 
commission will issue an order for the carrier to recoup the payments from 
future benefits to be paid. Per statute, the designated doctor's impairment 
rating has presumptive weight and it is the commission's position that the 
benefits should be paid based on the designated doctor's assessment of maximum 
medical improvement and/or impairment rating. In addition, the commission may 
schedule expedited BRCs when warranted and in extreme cases the carrier should 
request an expedited BRC. 
 The following comments were received regarding subsection (r). 
 COMMENT: Several commenters disagreed with the reimbursement levels and the 
rationale to derive these levels proposed in  sec.130.6(r). One commenter 
detailed the services required of a designated doctor and the time necessary to 
perform the services to support the proposition that the fees proposed are not 
sufficient. 
 COMMENT: One commenter recommended the following as "a good starting point" for 
determining designated doctor reimbursement and was of the opinion that the same 
reimbursement rates should apply to all doctors other than the treating doctor. 
The commenters categories include components for time, history and examination, 
number of previous providers and testing. Although a breakdown of how the fees 
were derived was not indicated, a value was assigned to each category as 
follows: 
 Brief Evaluation $250 
 Limited Evaluation $400 
 Extended Evaluation $750 
 Comprehensive Evaluation $950 
 COMMENT: Another commenter explained that the medical evaluations are variable 
with respect to the examination, the injured body area, reporting, and time 
("which may easily range from two to four hours of physician time on each 
required medical evaluation by the designated doctor"). 
 COMMENT: Another commenter expressed support for establishing fees that will 
encourage doctors to participate in the designated doctor process and 
recommended reevaluating the criteria for establishing the reimbursement to 
include: single site versus multiple site injury; nonsurgical versus surgical; 
number of doctors who have treated the employee; and amount of medical records 
reviewed. 
 COMMENT: A commenter recommended reevaluating the criteria for establishing the 
reimbursement to include: length of time since date of injury; number of body 
parts involved; number of physicians seen; and psychological issues are 
involved. 
 COMMENT: A commenter recommended the designated doctor reimbursement should be 
a flat rate taking into consideration the time elapsed from the date of injury, 
body regions involved and clinical complexity. In addition, the commenter 
recommends the following reimbursement levels: Level 1: less than six months 
from the date of injury, $550; Level 2: More than six months from date of injury 
but less than one year, $750; Level 3: More than one year from date of injury, 
$950; Level 4: Two or more injury sites and greater than 18 months from the date 
of injury: $1,200. 
 COMMENT: A commenter expressed concern about unreasonable fees, and with the 
exception of recommending a $900 fee for level 3 examinations, recommended the 
same reimbursement levels as those in previous comments, in addition to 
reimbursing a no show at $200. 
 COMMENT: A commenter noted that the reimbursement levels appear reasonable 
provided there is only one injury site and recommends adding an additional 
sentence to subsection (r)(3)(A)-(C): If there are multiple injury sites, an 
additional $150 will be reimbursed for each additional site. 
 COMMENT: A commenter recommended the reimbursement criteria include the number 
of diagnoses, complexity of clinical presentation, and the amount of records to 
review. 
 COMMENT: A commenter believed the reimbursement set out in subsection (r) is 
appropriate, but recommends adding a level IV to the proposed reimbursement 
levels for cases where it has been more than one year since injury, that are 
rather complicated, and which include two, three or more body areas. 
 COMMENT: A commenter recommended reimbursement based on time spent in the 
examination and reporting process at $150 per hour with a maximum allowable of 
$1500, whichever is less. The commenter stated that basing fees on length of 
treatment was not customary and did not take into account the time required to 
produce a valid, complete report that will withstand close scrutiny in a complex 
case. 
 COMMENT: A commenter felt the fees set in subsection (r) are below the 
reasonable and customary fees in Texas and recommended omitting subsection (r) 
(2)(A)-(C) reasoning that fees should be based solely on clinical considerations 
including complexity of injury and frequency type of testing, not timeframes 
from date of injury. 
 COMMENT: A commenter expressed concern that the proposed fees would drive out 
doctors that want to spend the kind of time necessary to teach the patients and 
produce the most comprehensive, intensive, correct report possible. The 
commenter provided the following detail regarding the components which make up 
the examination: The doctor typically spends 25-45 minutes face-to-face with the 
employee at which time the majority of measurements are taken using the 
goniometer and inclinometer personally. The commenters whole time with the 
patient is 45 minutes to one hour; and, then the report is dictated, usually 
about 5-6 pages, which should be reimbursed as well. Additionally, the commenter 
recommended a graduated scale reimbursement and specified that $750 would be an 
average reimbursement. 
 COMMENT: A commenter recommended the reimbursement be paid according to the 
difficulty and length of the task including the size and amount of records to be 
reviewed and complexity of the examination. 
 COMMENT: A commenter questioned whether the elapsed time between date of injury 
and the examination should be the sole criteria used to fix levels of 
reimbursements for evaluations and suggested that the criteria be further 
defined to include the complexity of review and the time spent on review and 
decision-making. 
 RESPONSE: The commission agrees. The proposed reimbursement methodology for 
designated doctor services does not sufficiently address the components 
affecting the examination and service. 
 Because the methodology used to calculate the proposed reimbursement levels 
only accounts for length of time from the date of injury, the fee provisions 
have been revised to incorporate additional elements from the commenters' 
recommendations to allow for a graduated reimbursement. The commission 
determined the fee amounts by researching the component services in the Medical 
Fee Guideline as well as taking into consideration factors that only affect 
designated doctors and the additional requirements placed on them in this rule. 
Reimbursements for designated doctor services are to be calculated according to 
the following formula: Base + Body Area(s) = Reimbursement. Ranges for 
reimbursement are as follows: (Base Ranges from $200 to $400) + (Body Area(s) 
Range(s) from $300 to $600) = Total Reimbursement Range from $500 to $1,000. The 
reimbursement criteria allows for a reimbursement range from $500 (with one body 
area) to $1,000 (with all body areas affected). The dollar amounts were 
determined by analyzing the individual components required to complete a 
designated doctor exam. The most important part of this concept is to separate 
the basic exam component from the variable component of the number of body areas 
reviewed and assessed. Including length of time from the date of injury in the 
formula adjusts the fee for the complexity of the body areas. In cases where 
additional testing is required and the designated doctor must incorporate the 
findings of a specialist into the report, an additional reimbursement is 
allowed. The commission has deleted subsection (r)(3) and (4) and replaced them 
with the following criteria and reimbursement: 
 (3) Regardless of the maximum allowable reimbursement specified in this 
subsection, the designated doctor's charge for services should correlate with 
the actual time and level of service involved with each patient and 
reimbursement from the carrier shall be the lesser of the charge amount or the 
fees set forth as follows: 
 (A) Total reimbursement is equal to the base reimbursement plus the area(s) 
rated. 
 (B) The base reimbursement is inclusive of the physical examination, patient 
consultation and education, detailed narrative report, and factors affecting the 
service as a designated doctor such as ensuring availability of appointments, 
timeliness of reports and responding to the need for further clarification, 
explanation or reconsideration. Length of time elapsed from date of injury will 
indicate the base reimbursement as follows: i. greater than or equal to two 
years is reimbursed at $400 and indicated by using modifier L1 on the billing 
form; ii. greater than or equal to one year and less than two years is 
reimbursed at $300 and indicated by using modifier L2 on the billing form; iii. 
less than one year is reimbursed at $200 and indicated by using modifier L3 on 
the billing form. 
 (C) Areas that can be reimbursed when rated include body areas and specialty 
areas as indicated below: i. The reimbursement for body areas that must be rated 
because of the compensable injury is inclusive of testing, records reviewed, 
impairment rating calculations, and documentation. The designated doctor may 
bill for a maximum of three body areas, defined as the Spine and Pelvis; Upper 
Extremities and Hands; and, Lower Extremities. The reimbursement for one body 
area is $300 and each additional body area is $150 ii. The reimbursement for 
specialty areas that must be rated where referred testing is required such as 
psychological, audiologic and/or ophthalmologic testing, is $50 for 
incorporating one or more specialists' report information into the final 
impairment rating. This reimbursement will only be allowed once per examination. 
The referred specialist will be reimbursed separately from the fees in this 
rule. 
 (D) The designated doctor must indicate the number of areas rated in the units 
column on the billing form with the maximum being four units/areas. 
 (E) When the outcome of the evaluation is that maximum medical improvement has 
not been reached, the designated doctor shall receive the base reimbursement as 
outlined in subsection (r)(3)(B). No additional reimbursement will be allowed. 
 (F) If the employee fails to attend the examination or cancels the commission-
ordered examination within 24 hours of the appointment, reimbursement shall be 
$100. 
 (4) If testing is performed by a health care provider other than the designated 
doctor as specified in subsection (l) of this section, each health care provider 
must bill for their respective services using the code and modifiers as 
prescribed by the commission. If the technical and professional components of 
the impairment rating are billed separately, reimbursement will be made at 20% 
for the technical and 80% for the professional of the total reimbursement as 
outlined in paragraph (3)(A). When the designated doctor performs all components 
of the service without any referred testing, the designated doctor shall bill 
using the code as prescribed by the commission with modifier -WP for the whole 
procedure. 
 COMMENT: One commenter was concerned about unfair reductions in the designated 
doctor fee and recommended that a standard criteria (checklist) be applied to 
each bill in order to determine which level of reimbursement should apply. The 
commenter had no objection to the levels of reimbursement set forth in the 
proposed rule as long as the standard criteria were met. 
 RESPONSE: The commission disagrees with requiring carriers to use a commission-
developed check list to determine if all the required documentation was 
submitted with a bill. By this rule, the commission has established standard 
fees for reimbursement and outlined the criteria required for each level of 
reimbursement. The documentation submitted with the bill must support the level 
of services provided and billed. 
 COMMENT: One commenter recommended retaining the fees established for 
designated doctors in this rule and not allow the Medical Fee Guideline to 
supersede this rule. 
 RESPONSE: The commission disagrees as the intent is to incorporate the fee 
structures outlined in this rule into the revised Medical Fee Guideline. In 
addition, it is the intent of the commission to have all fees included in the 
fee guidelines; however, until the fee guidelines are updated, it is imperative 
that controls and consistency be established for designated doctor 
reimbursement. 
 COMMENT: One commenter recommended that the wording in subsection (r)(1) be 
modified to exclude the word "reasonable". The commenter reasoned that this 
language is unnecessary since a fee guideline is being set and to add the word 
"reasonable" confuses the issue. 
 RESPONSE: The commission agrees to clarify subsection (r)(1) by adding the 
clause to the end of the sentence, "as set forth in the fee structure of this 
subsection." 
 COMMENT: One commenter recommended adding wording to subsection (r)(2)(c) which 
would limit the records reviewed to those available at the time of the 
examination. 
 RESPONSE: The commission disagrees. The fee structure includes the cost of 
reviewing records regardless of when they arrive at the designated doctor's 
office. 
 COMMENT: Several commenters recommended removing the words "up to" before each 
of the recommended reimbursement levels in subsection (r)(3). One commenter felt 
such language encouraged carriers to dispute designated doctor fees and 
recommended adding variables to be considered such as body parts involved, 
number of doctors seen and whether behavioral issues are involved. 
 COMMENT: Another commenter expressed concern with the "up to" wording. 
 COMMENT: Another commenter expressed concern with the loophole in the 
reimbursement which will allow a nurse reviewer or non-medical person to 
unfairly reduce fees. 
 RESPONSE: The commission agrees, as the intent of the rule is to establish a 
maximum reimbursement for designated doctors. The revised reimbursement schedule 
does not include the "up to" language and requires the carriers to pay the 
lesser of the charged amount or the express fees as outlined in subsection 
(r)(3). 
 COMMENT: One commenter recommends reimbursement on a "fair and reasonable" 
standard for narrative reports submitted as clarification to the commission. 
Commenter finds this standard is already set by sec.130.106 of this title 
(relating to Permanent Loss of Entitlement to Supplemental Income Benefits) and 
to adopt the proposed sec.130.6(r)(3)(D) would be in conflict. 
 COMMENT: Other commenters recommended that clarifications of previous reports 
be reimbursed based on sec.133.106 of this title (relating to Fair and 
Reasonable Fees for Required Reports and Records). 
 RESPONSE: The commission disagrees that additional reimbursement is warranted 
for clarification of issues because this component of the designated doctor's 
service is inherent in the fee structure established by this subsection. 
 COMMENT: Two commenters requested deletion of subsection (r)(4) because it is 
inconsistent with a set fee system for healthcare reimbursement. 
 RESPONSE: The commission disagrees. The intent of this section is to ensure 
providers bill the charges which represent their usual and customary fees and 
not for them to escalate their prices to match the reimbursement values as 
listed in this subsection when the listed reimbursement fees do not represent 
their usual and customary services. The language previously in (r)(4) is now 
found in the introduction subsection (r)(3). 
 COMMENT: One commenter requested clarification of what constitutes a "complete 
medical evaluation report with required attachments", as used in subsection 
(r)(7). 
 RESPONSE: The commission disagrees that additional clarification is required in 
this rule. The elements necessary to "complete" an impairment rating report are 
found in sec.130.1 of this title (relating to Reports of Medical Evaluation: 
Maximum Medical Improvement and Permanent Impairment), and in the instructions 
for completion of the form TWCC-69. In addition, required attachments are 
already described in subsection (r)(2)(D). However, to ensure all documentation 
required in the AMA Guides is included in the report, subsection (r)(2)(D) has 
been modified by adding the term "figures" and removing the parenthesis from the 
term "worksheets". 
 COMMENT: One commenter detailed some of the difficulties designated doctors 
face in determining maximum medical improvement and impairment ratings and noted 
that many doctors may withdraw from the program without reasonable 
reimbursement. The commenter agrees that a limit on fees should be adopted but 
recommends an hourly rate as opposed to a flat fee. 
 RESPONSE: The commission agrees that a limit on fees be established, but 
disagrees that the best method of determining the level of reimbursement is to 
use an hourly rate. A complete explanation of the designated doctor 
reimbursement methodology is contained in previous responses to comments on 
subsection (r). 
 COMMENT: One commenter stated that she approves of the proposed Designated 
Doctor fees as published, and that the fees are a fair median. 
 RESPONSE: The commission agrees that the proposed reimbursement levels 
represent a fair median for reimbursement but acknowledge other commenters' 
concerns regarding the criteria for establishing the fees, therefore, the 
reimbursement schedule has been revised as explained in previous responses to 
comments on subsection (r). 
 COMMENT: One commenter was concerned that the language in subsection (r)(1) may 
exclude self-insureds and recommended adding self-insureds to this subsection. 
 RESPONSE: The commission disagrees. Additional clarification is not necessary 
based on the definition of insurance carrier found in the Texas Labor Code, 
sec.401.011(27): Insurance carrier means an insurance company; a certified self-
insurer for workers' compensation insurance; or a governmental entity that self-
insures, either individually or collectively. 
 COMMENT: One commenter recommended specific wording for subsection (r)(3)(E) 
which would limit the number of times a carrier is liable to pay for a cancelled 
appointment to one, unless the employee can show that a bona fide emergency 
existed which could not have been known to the employee earlier than 24 hours 
prior to the scheduled appointment. 
 COMMENT: Another commenter was concerned that the proposed rule allowed for 
$100 payment for no-shows but recommended that something have some teeth in it 
to make the patient show up for examinations and questioned whether the carrier 
should be solely responsible for that. 
 RESPONSE: The commission agrees with the commenter's concern that the carrier 
should not be liable for payment for multiple missed appointments by employees, 
but disagrees with the suggested solution as it penalizes the health care 
provider for actions beyond his control. 
 COMMENT: One commenter strongly disagrees with the proposed reimbursement, 
stating that the fees are all over the board and suggested adopting the fees 
submitted by advisory groups in 1992 with testing and the report reimbursed 
separately. The commenter related his experience with the California Workers' 
Compensation system and his opinion that reducing doctor fees in that system has 
resulted in the best doctors no longer participating in the impairment 
evaluation process. 
 COMMENT:The commenter expressed concern that the fees in the proposed rule were 
inclusive of all testing and felt this made the proposed fees too low and unfair 
to designated doctors. Commenter believes the fee schedule would be detrimental 
to the injured worker because it will discourage participation of doctors in the 
designated doctor program and also result in carriers paying more due to delay 
in assigning a designated doctor. 
 RESPONSE: The commission agrees, and further clarification of this issue has 
been included in this rule. The fees in this rule were developed with input from 
the Medical Advisory Committee and subsection (r)(5) previously (r) (6)) allows 
for additional reimbursement for additional testing required to assess an 
impairment rating. In addition, fees in this rule have been carefully 
reevaluated to ensure proper reimbursement for all components of the examination 
to include range of motion testing. The range of motion is such an inherent part 
of the impairment rating examination that it must be included in the 
developmental design of the reimbursement. 
 COMMENT: One commenter stated that the reimbursement of $100 for a cancelled 
appointment is considerably too low because you have tied up an entire 
evaluating team. 
 COMMENT: Another commenter recommended reimbursing a no show at $200. 
 RESPONSE: The commission disagrees. The preparation work performed by the 
designated doctor prior to a cancelled appointment will be reimbursed when the 
actual examination is performed. The $100 has been established to reimburse the 
designated doctor for making the appointment time available. 
 COMMENT: Several commenters recommended maintaining a billing procedure 
separate from the global procedure for any form of psychological evaluation in 
relation to an impairment rating since such testing is specialized and time 
consuming. One commenter felt inclusion of psychological testing in the global 
fee would discourage designated doctors from referring an employee to such 
testing when necessary. 
 RESPONSE: The commission disagrees because psychological testing is not 
specifically required by the AMA Guides in order to perform an impairment 
rating. 
 COMMENT: One commenter expressed concern that subsection (r)(5) appeared to be 
fee splitting and questioned if this was ethical and legal. 
 RESPONSE: The commission agrees with the concern raised by the commenter and 
has revised the wording in subsection (r)(4) as follows: "If testing is 
performed by a health care provider other than the designated doctor as 
specified in subsection (l) of this section, each health care provider must bill 
for their respective services using the code and modifiers as prescribed by the 
commission. If the technical and professional components of the impairment 
rating are billed separately, reimbursement will be made at 20% for the 
technical and 80% for the professional of the total reimbursement as outlined in 
paragraph (3)(A) of this subsection. When the designated doctor performs all 
components of the service without any referred testing, the designated doctor 
shall bill using the code as prescribed by the commission with modifier -WP for 
the whole procedure." 
 This will allow for a fair and reasonable amount of reimbursement for both sets 
of providers involved in the impairment rating and enable staff to monitor the 
billing and reimbursement patterns associated with designated doctor 
examinations. 
 COMMENT: The commenter expressed the opinion that outside testing (e.g., eye 
testing or pulmonary testing) should be reimbursed separately from the global 
fee of the impairment rating. 
 RESPONSE: The commission agrees. Outside testing such as the examples listed by 
the commenter are covered under subsection (r)(5) (previously (r)(6)) which 
allows for reimbursement separate from the impairment rating fees. 
 COMMENT: One commenter questioned the billing procedure in subsection (r)(5) 
(now (r)(4)) and was concerned that the doctor would have to monitor and be 
responsible for all providers charges to ensure the billing did not exceed 100% 
of the allowable reimbursement. 
 RESPONSE: The commission agrees that this area caused confusion and this 
section (now (r)(4)) has been revised to provide a specific percentage of the 
allowed reimbursement to be attributable to different components of the 
examination. It is the carrier's responsibility to monitor the reimbursement to 
ensure that 100% of the allowed reimbursement is not exceeded. 
 COMMENT: One commenter expressed concern about the fairness of allowing 
additional reimbursement for referrals when the designated doctor is not allowed 
to receive his/her usual fee for the time spent on the examination. 
 RESPONSE: The commission disagrees. The referral providers will receive the 
reimbursement amount allowed by the Medical Fee Guideline for the specific CPT 
code billed, which may or may not be the total amount charged by the provider. 
Additionally, the designated doctor will be reimbursed according to this rule at 
the appropriate level based on the documentation submitted with the bill to 
support the reimbursement criteria, again, this reimbursement may or may not be 
the total amount charged by the provider. 
 COMMENT: One commenter expressed confusion with the provision of subsection 
(r)(5) and (6) (now (r)(4) and (5)) stating, "In one section it states that if 
testing is performed by a health care provider other than a designated doctor, 
the total reimbursement of both providers shall not exceed 100%, however, in the 
next subsection (r)(6) (now (r)(5)), additional testing and referrals will be 
reimbursed." 
 RESPONSE: The commission disagrees. The reimbursement specified in subsection 
(r)(5) (now (r)(4)) is inclusive of the basic testing (range of motion, sensory, 
and strength testing) required to perform an impairment rating as specified in 
subsection (l). Testing outside of that described in subsection (l) is 
reimbursed in addition to the standard designated doctor fee as indicated in 
subsection (r)(6) (now (r)(5)). 
 The following miscellaneous comments were received on the proposed amendment to 
the rule. 
 COMMENT: One commenter made general complaints regarding TWCC's billing and 
reimbursement policies ("requires him {the doctor} to spend hours up front 
(prior to seeing the patient), verifying that the insurance company address and 
adjustor to bill are correct"; "insurance companies say TWCC has given them 45 
days to pay from the time they receive the bill, the doctor must call the 
adjustor at least six to eight times per claim... most will take three to six 
months to pay, if they pay at all." 
 RESPONSE: The commission agrees that it is important for the designated doctor 
to know who the carrier is for proper billing and transmission of the impairment 
rating report. Therefore, the commission's notice will contain the carrier's 
name. 
 COMMENT: One commenter expressed concern that commission staff were notifying 
the injured employee of their right to dispute the treating doctor's finding of 
impairment rating or maximum medical improvement. 
 RESPONSE: The commission disagrees. The injured worker has the right to dispute 
the findings of the treating doctor, especially when a treating doctor has not 
attended the training in the proper use of the AMA Guides. The commission will 
inform injured employees of their right to dispute the findings of their 
treating doctor when the issue is raised by the employee. It is not the 
commission's policy to encourage disputes. 
 COMMENT: One commenter expressed concern that commission staff are allowing 
injured employees to change treating doctors after MMI has been established. 
 RESPONSE: The commission disagrees. The injured employee is entitled to his/her 
choice of treating doctor and the Act does not preclude the employee from 
changing doctors after MMI has been reached. The change of treating doctor may 
be necessary to ensure appropriate continued medical care, but is prohibited by 
the Texas Labor Code, sec.408.022(d) for the purpose of securing a new 
impairment rating or medical report. As a result, changing treating doctors 
after MMI has been established, should occur only when there are compelling 
reasons related to ensuring that the injured worker receives appropriate 
continued medical care. 
 COMMENT: One commenter stated that, "Many overpayments are made which the TWCC 
does not require the claimant to refund. This system is not objective and is 
certainly biased in favor of the claimant." 
 RESPONSE: The commission disagrees. TWCC strives to ensure that all parties are 
appropriately served in the workers' compensation system. Inequities may occur 
and these should be pointed out to the appropriate commission staff in order to 
properly resolve the overpayment issue. One of the goals of this rule is to 
speed up the dispute resolution process which will assist in minimizing 
overpayments. 
 The following general comments were received regarding the proposed amendment 
to the rule. 
 COMMENT: One commenter expressed the complaint that the Medical Advisory 
Committee (MAC) was not given an opportunity to work on the Designated Doctor 
rules prior to staff's presentation of the rules to the commissioners. The 
commenter also felt that the MAC was ignored regarding this rule revision. 
 RESPONSE: The commission disagrees. Pursuant to the Texas Labor Code, 
sec.413.005, the MAC advises the Medical Review Division in developing and 
administering the medical policies, fee guidelines, and utilization guidelines 
established under sec.413.012. The proposed designated doctor reimbursements 
were presented to the MAC as they were initially being developed and the 
recommendations of the MAC were taken into consideration as the designated 
doctor rules were being prepared. 
 The following positive comments were received regarding the proposed amendment 
to the rule. 
 COMMENT: One commenter stated: "I feel many of the proposed changes are indeed 
needed, and will be a significant addition and improvement to the current 
system." 
 COMMENT: Another commenter agreed with reducing the timeframes for each of the 
timeliness issues in this rule. "We believe the changes made affecting 
timeliness of dispute resolution are a positive step for quick resolution to 
getting appropriate benefits in the hands of the injured worker." Although the 
commenter suggested changes to the proposed rule, he stated that, "overall the 
vast majority of the proposal is very good." 
 COMMENT: A third commenter stated: "The Fund supports the commission's attempt 
to improve the designated doctor process via revising sec.130.6." 
 The amendment is adopted under the Texas Labor Code, sec.402.061, which 
requires the commission to adopt rules necessary for the implementation and 
enforcement of the Texas Workers Compensation Act; the Texas Labor Code, 
sec.408.025, which mandates that this commission adopt rules regarding reports 
and records of healthcare providers, establishes a treating doctor's 
responsibility for efficient utilization of health care and provides for the 
furnishing of records by a health care facility; the Texas Labor Code, sec.408. 
121, which describes when an employee becomes entitled to impairment income 
benefits, and when the benefits end, as well as when the insurance carrier 
begins to pay impairment income benefits, states that the benefits shall be paid 
for a period based on the impairment rating, unless that rating is disputed, 
and, if disputed, that the carrier shall pay the employee impairment income 
benefits for a period based on the carrier's reasonable assessment of the 
correct rating; the Texas Labor Code; sec.408.122, as amended by House Bill 
1089, 74th Legislature, 1995, effective September 1, 1995, which describes the 
criteria for deciding an employee's eligibility for impairment income benefits 
and gives the commission the authority to choose a designated doctor to examine 
the employee, grants the report of the designated doctor presumptive weight in 
dispute resolution and mandates that designated doctor qualification standards 
and impairment rating training be developed; the Texas Labor Code, sec.408.123, 
which states the procedural requirements for certification of maximum medical 
improvement and evaluation of the impairment rating; the Texas Labor Code, 
sec.408.124, which states that an award of impairment income benefits shall be 
based on the standards in Guides to the Evaluation of Permanent Impairment , 
third edition, second printing, dated February 1989, published by the American 
Medical Association; the Texas Labor Code, sec.408. 125, as amended by House 
Bill 1089, 74th Legislature, 1995, effective September 1, 1995, which describes 
the procedural requirements of the dispute resolution process when there is a 
dispute as to an impairment rating, and states that the presumptive opinion of a 
designated doctor mutually agreed upon by both parties to the dispute will 
control, and the designated doctor chosen by the commission has presumptive 
weight, unless the other medical evidence is to the contrary, in which case the 
commission shall adopt the impairment rating of one of the other doctors; and 
prohibits certain communication with the designated doctor; the Texas Labor Code 
sec.413.002, as amended by House Bill 1089, 74th Legislature, 1995, which gives 
the commission authority to monitor and evaluate health care providers 
(including designated doctors), insurance carriers, and workers' compensation 
claimants to ensure compliance with the rules adopted by the commission; the 
Texas Labor Code, sec.413.011, which mandates that the commission establish 
medical policies and guidelines; and the Texas Labor Code sec.413.044, as added 
by House Bill 1089, 74th Legislature, 1995, effective September 1, 1995, which 
empowers the commission to seek sanctions against a designated doctor who is not 
in compliance with the Texas Workers' Compensation Act or commission rules; the 
Texas Labor Code, sec.413.053, which mandates that the commission shall by rule 
establish standards of reporting and billing by health care providers. 
 
 
  sec.130.6. Designated Doctor: General Provisions. 
 
  (a) If the commission receives a notice from the employee or the insurance 
carrier that disputes maximum medical improvement; an assigned impairment 
rating; or maximum medical improvement and an assigned impairment rating, the 
commission shall issue a written order assigning a designated doctor, setting up 
a designated doctor appointment for a date no earlier than 14 days from the date 
of the commission order and no later than 24 days from the date of the 
commission order, and notifying the employee and the insurance carrier that the 
designated doctor will be directed to examine the employee. The commission's 
written order shall also: 
 
  (1) contain the designated doctor's name, license number, practice address and 
telephone number, and the date and time of the examination; 
   
  (2) explain that the injured employee may agree with the carrier on a 
different designated doctor and notify the commission of the agreement as 
described in subsection (e) of this section; 
   
  (3) state that there is a dispute and that the Texas Labor Code, sec.408.125 
requires the commission to adopt the impairment rating made by a mutually agreed 
upon designated doctor; 
   
  (4) explain when the designated doctor's report has presumptive weight with 
respect to maximum medical improvement and/or impairment ratings as specified in 
the Texas Labor Code, sec.408.122 and sec.408.125; 
   
  (5) notify an unrepresented employee that commission staff are available to 
explain the contents of an agreement for a designated doctor and the possible 
effects of such an agreement on future benefits; 
   
  (6) order the employee to be examined by the designated doctor on the stated 
date and time, unless the commission is timely notified of an agreement; and 
   
  (7) require the treating doctor and insurance carrier to forward all medical 
records in compliance with subsection (h) of this section. 
     
  (b) In order to be a designated doctor for a dispute, the doctor shall: 
 
  (1) be on the Designated Doctor List as described in sec.126.10 of this title 
(relating to Commission Approved List of Designated Doctors); 
   
  (2) not have previously treated or examined the employee within the past 12 
months or with regard to the medical condition being evaluated by the designated 
doctor; 
   
  (3) not have any disqualifying association as specified in sec.126.10(a) of 
this title (relating to Commission Approved List of Designated Doctors); and 
   
  (4) to the extent possible, be in the same discipline and licensed by the same 
board of examiners as the employee's doctor of choice. 
     
  (c) After sending the order to the employee and the insurance carrier as 
specified in subsection (a) of this section, the commission shall allow the 
employee and insurance carrier to agree on a designated doctor. If at the end of 
the tenth day from the date of the order, the commission has not received 
notification from the insurance carrier or injured employee that a designated 
doctor has been agreed upon, the commission will presume that an agreement is 
not possible and the employee is required to attend the commission-selected 
designated doctor examination as specified in subsection (a) of this section. 
   
  (d) If the employee and the insurance carrier agree on a designated doctor, 
the insurance carrier shall schedule an appointment for the designated doctor to 
examine the employee on a date no earlier than 14 days from the date of the 
commission order described in subsection (a) of this section and no later than 
24 days from the date of the commission order. 
   
  (e) The carrier shall notify the commission field office within ten days of 
the date of the commission's order as described in subsection (a) when an 
agreement with the injured employee on the selection of a designated doctor is 
made. The notice shall include: 
 
  (1) the commission's claim file number; 
   
  (2) the employee's name, address, and social security number, and if known, 
the employee's telephone number; 
   
  (3) the date of the injury; and 
   
  (4)  the designated doctor's name, license number, practice address and 
telephone number, and the time and date of the examination. 
     
  (f) Upon timely receipt of the notification from the insurance carrier that 
the injured employee and the carrier have agreed on a designated doctor, the 
commission shall contact the employee to confirm the agreement. Upon 
confirmation by the employee, the commission shall send to the carrier, 
designated doctor and the injured employee an order confirming the agreement, 
cancelling the commission-selected designated doctor appointment, and directing 
the employee to be examined by the agreed-upon doctor. The order shall remind 
the parties of the requirements in the Texas Labor Code, sec.408.122 and 
sec.408.125 as specified in subsection (a) of this section and require the 
treating doctor and insurance carrier to forward medical records in compliance 
with subsection (h) of this section. The order will supersede the initial order 
identifying a commission-selected designated doctor. If the commission cannot 
confirm the agreement with the employee, the commission will presume that an 
agreement was not made and the initial order directing the employee to be 
examined by a designated doctor selected by the commission shall remain in 
effect. 
   
  (g)  The designated doctor and the injured employee shall contact each other 
if there exists a scheduling conflict for the designated doctor appointment. The 
designated doctor or the injured employee who has the scheduling conflict must 
make the contact at least 24 hours prior to the appointment. The 24 hour 
requirement will be waived in an emergency situation (such as a death in the 
immediate family or a medical emergency). The rescheduled examination shall be 
set for a date within seven days of the originally scheduled examination unless 
an extension is granted by the field office. Within 24 hours of rescheduling, 
the designated doctor shall contact the commission field office and the 
insurance carrier with the time and date of the rescheduled examination. 
   
  (h) The treating doctor and insurance carrier are both responsible for sending 
to the designated doctor all the employee's medical records relating to the 
medical condition to be evaluated by the designated doctor that are in their 
possession without a signed release from the employee. The designated doctor is 
authorized to receive the employee's confidential medical records to assist in 
the resolution of maximum medical improvement and impairment rating disputes. 
The medical records must not contain any marks, highlights, or other alterations 
placed on such records for the purpose of communicating with or influencing the 
designated doctor. The medical records must be received by the designated doctor 
at least three days prior to the date of the appointment as specified in the 
commission order. If the medical records are marked, highlighted, altered, or 
unrelated to the medical condition to be evaluated by the designated doctor, the 
designated doctor shall notify the commission and report the noncompliance of 
the treating doctor and/or insurance carrier. Noncompliance with this subsection 
is a Class C administrative violation under the Texas Labor Code sec.408.125 and 
may be subject to an administrative penalty not to exceed $1000. If the 
designated doctor has not received the medical records at least three days prior 
to the examination, the designated doctor's office shall notify the commission 
at the appropriate field office and the appropriate commission staff will send 
an order to the treating doctor and/or insurance carrier for the delivery of 
medical records. 
   
  (i) To avoid undue influence on a person selected as a designated doctor under 
the Texas Labor Code, sec.408.125, only the employee or an appropriate member of 
the staff of the commission may communicate with the designated doctor about the 
case regarding the employee's medical condition or history prior to the 
examination of the employee by the designated doctor. After that examination is 
completed, communication with the designated doctor regarding the employee's 
medical condition or history may be made only through appropriate commission 
staff members. An ombudsman is not considered appropriate staff to contact the 
designated doctor and should communicate with a designated doctor only through 
appropriate commission personnel. The designated doctor may initiate 
communication with any doctor who has previously treated or examined the 
employee for the work-related injury. Noncompliance with this section is a Class 
C administrative violation under the Texas Labor Code, sec.408.125 and may be 
subject to an administrative penalty not to exceed $1,000. 
   
  (j) The designated doctor shall address the issue(s) in dispute and confine 
the report as described in subsection (n) of this section to only those issues. 
When the impairment rating is the only issue in dispute, the doctor shall assess 
an impairment rating without regard to maximum medical improvement. When maximum 
medical improvement and impairment rating are in dispute and the designated 
doctor determines that the employee has not reached MMI, the designated doctor 
shall not assign an impairment rating. An evaluation or certification under the  
Guides to the Evaluation of Permanent Impairment, third edition, second 
printing, dated February 1989, published by the American Medical Association 
(AMA Guides), shall include a physical examination and evaluation by the 
designated doctor. Although any doctor or any other provider who has 
successfully completed the training outlined in sec.126.10(b)(2) of this title 
(relating to Commission Approved List of Designated Doctors) may compare the 
clinical findings on a particular patient with the criteria in the AMA Guides, 
the designated doctor shall conduct a physical evaluation and is responsible for 
the integrity of the evaluation process. This means the designated doctor must 
evaluate the complete clinical and non-clinical history of the medical 
condition(s), perform an examination of the employee, analyze the medical 
history with the clinical and laboratory findings and assess and certify an 
impairment rating according to the AMA Guides. 
   
  (k) When performing range of motion testing, if the AMA Guides specifies that 
additional testing be performed because of consistency requirements, the 
designated doctor shall reschedule testing within seven days of the first 
testing unless there is no clinical basis for retesting and then the designated 
doctor must document this in the narrative notes with the clinical explanation 
for not recommending re-examination. 
   
  (l) Range of motion, sensory, and strength testing should be performed by the 
designated doctor, when applicable. If this testing is not performed by the 
designated doctor, the health care provider performing the testing must have 
successfully completed commission-approved training as outlined in 
sec.126.10(b)(2) in the proper use of the AMA Guides, must not have previously 
treated or examined the employee within the past 12 months or with regard to the 
medical condition being evaluated by the designated doctor, and must complete 
testing within seven days of the designated doctor's physical examination of the 
employee. 
   
  (m) For testing other than that listed in subsection (l) of this section, the 
designated doctor may perform additional testing or refer employees to other 
health care providers when deemed necessary to assess an impairment rating. Any 
additional testing required by the AMA Guides for the assignment of the 
impairment rating is not subject to preauthorization requirements in accordance 
with the Texas Labor Code, sec.413.014 (relating to Preauthorization) and 
additional testing must be completed within seven days of the designated 
doctor's physical examination of the employee. 
   
  (n) The designated doctor shall complete and file the medical evaluation 
report in accordance with sec.130.1 of this title (relating to Reports of 
Medical Evaluation: Maximum Medical Improvement and Permanent Impairment) unless 
testing must be rescheduled or the employee is referred to another health care 
provider as specified in subsections (k)-(m) of this section, the medical 
evaluation report shall be completed and filed within seven days of the 
rescheduled testing or referral appointment date. 
   
  (o)  The designated doctor shall maintain accurate records to reflect: 
 
  (1)  the date and time of any designated doctor appointments scheduled with 
employees; 
   
  (2) the circumstances regarding a cancellation, no-show or other situation 
where the examination did not occur as initially scheduled or rescheduled; 
   
  (3) the date of the examination; 
   
  (4) the date medical records were received from the treating doctor or any 
other person or organization; 
   
  (5) the date the medical evaluation report was submitted to all parties in 
accordance with sec.130.1 of this title (relating to Reports of Medical 
Evaluation: Maximum Medical Improvement and Permanent Impairment); and 
   
  (6) the name of all referral health care providers, date of appointments and 
reason for referral by the designated doctor. 
     
  (p) The commission may: 
 
  (1) issue an order requiring timely submission of medical evaluation reports 
or narrative reports; 
   
  (2)  assess administrative violations; 
   
  (3) issue an order for refund to the insurance carrier of the examination 
payment if an improper or incomplete examination is performed or improper or 
incomplete report is submitted; 
   
  (4) take action to remove a doctor from the Designated Doctor List as 
described in accordance with sec.126.10 of this title (relating to Commission 
Approved List of Designated Doctors); and/or 
   
  (5) take action to remove a doctor from the Approved Doctor List in accordance 
with sec.126.8 of this title (relating to Commission Approved Doctor List). 
     
  (q)  The insurance carrier shall pay any accrued income benefits, and shall 
begin or continue to pay weekly income benefits, in accordance with the 
designated doctor's report for the issue(s) in dispute, no later than five days 
after receipt of the report or upon receipt of an order by the commission, 
whichever is earlier. 
   
  (r) The designated doctor billing and reimbursement will be as established in 
this subsection until the designated doctor reimbursement is specifically 
addressed by the Medical Fee Guideline. At such time, the Medical Fee Guideline 
will supersede this subsection. 
 
  (1) The insurance carrier is responsible for paying the reasonable cost of a 
designated doctor examination as set forth in the fee structure of this 
subsection. In addition, the carrier shall pay for the reasonable travel 
expenses for an injured employee to attend a designated doctor appointment. 
   
  (2) The reimbursement for determination of maximum medical improvement and/or 
impairment ratings shall be inclusive of: 
 
  (A) the examination; 
   
  (B) consultation with the employee; 
   
  (C) review of records and films; 
   
  (D) the preparation and submission of reports, calculation tables, figures, 
and worksheets; 
   
  (E) range of motion, strength, and sensory testing and measurements; and 
   
  (F) other tests used to validate the impairment rating. 
     
  (3) Regardless of the maximum allowable reimbursement specified in this 
subsection, the designated doctor's charge for services should correlate with 
the actual time and level of service involved with each patient and 
reimbursement from the carrier shall be the lesser of the charge amount or the 
fees set forth as follows. 
 
  (A)  Total reimbursement is equal to the base reimbursement plus the area(s) 
rated. 
   
  (B) The base reimbursement is inclusive of the physical examination, patient 
consultation and education, detailed narrative report, and factors affecting the 
service as a designated doctor such as ensuring availability of appointments, 
timeliness of reports, and responding to the need for further clarification, 
explanation or reconsideration. Length of time elapsed from date of injury will 
indicate the base reimbursement as follows. 
 
  (i) Greater than or equal to two years is reimbursed at $400 and indicated by 
using modifier L1 on the billing form. 
   
  (ii) Greater than or equal to one year and less than two years is reimbursed 
at $300 and indicated by using modifier L2 on the billing form. 
   
  (iii) Less than one year is reimbursed at $200 and indicated by using modifier 
L3 on the billing form. 
     
  (C) Areas that can be reimbursed when rated include body areas and specialty 
areas as follows. 
 
  (i) The reimbursement for body areas that must be rated because of the 
compensable injury is inclusive of testing, records reviewed, impairment rating 
calculations, and documentation. The designated doctor may bill for a maximum of 
three body areas, defined as the Spine and Pelvis; Upper Extremities and Hands; 
and, Lower Extremities. The reimbursement for one body area is $300 and each 
additional body area is $150. 
   
  (ii) The reimbursement for specialty areas that must be rated where referred 
testing is required such as psychological, audiologic and/or ophthalmologic 
testing, is $50 for incorporating one or more specialists' report information 
into the final impairment rating. This reimbursement will only be allowed once 
per examination. The referred specialist will be reimbursed separately from the 
fees outlined in this rule. 
     
  (D) The designated doctor must indicate the number of areas rated in the units 
column on the billing form with the maximum being four units/areas. 
   
  (E) When the outcome of the evaluation is that maximum medical improvement has 
not been reached, the designated doctor shall receive the base reimbursement as 
outlined in subparagraph (B) of this paragraph. No additional reimbursement will 
be allowed. 
   
  (F) If the employee fails to attend the examination or cancels the commission-
ordered examination within 24 hours of the appointment, reimbursement shall be 
$100. 
     
  (4) If testing is performed by a health care provider other than the 
designated doctor as specified in subsection (l) of this section, each health 
care provider must bill for their respective services using the code and 
modifiers as prescribed by the commission. If the technical and professional 
components of the impairment rating are billed separately, reimbursement will be 
made at 20% for the technical and 80% for the professional of the total 
reimbursement as outlined in paragraph (3)(A) of this subsection. When the 
designated doctor performs all components of the service without any referred 
testing, the designated doctor shall bill using the code as prescribed by the 
commission with modifier -WP for the whole procedure. 
   
  (5) Additional testing or referrals specified in subsection (m) of this 
section will be reimbursed in addition to the fees specified in paragraph 
(3)(A)-(C) of this subsection if the additional testing was required to perform 
the assignment of impairment rating and/or determination of maximum medical 
improvement. These services should be billed using the appropriate CPT code as 
specified in the Medical Fee Guideline. 
   
  (6) A carrier's timeframe for reimbursement to the designated doctor does not 
begin until a complete medical evaluation report with required attachments has 
been received by the insurance carrier. 
 
  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 September 12, 1995. 
 TRD-9511735 
  Susan Cory 
 General Counsel 
 Texas Workers' Compensation Commission 
    Effective date: December 1, 1995 
 Proposal publication date: March 21, 1995 
 For further information, please call: (512) 440-3700 
         
                     
  TITLE 40. SOCIAL SERVICES AND ASSISTANCE 
 Part IV. Texas Commission for the Blind 
  Chapter 171. Cooperative Activities 
  
  40 TAC sec.171.3 
 
  The Texas Commission for the Blind adopts an amendment to sec.171.3, 
concerning memoranda of understanding between agencies, without changes to the 
proposed text as published in the July 25, 1995, issue of the Texas Register  
(20 TexReg 5496). 
 Amended sec.171.3(4) adopts by reference a memorandum of understanding between 
the Texas Education Agency, the Texas Commission for the Blind, the Texas 
Department of Human Services, the Texas Employment Commission, the Texas 
Department of Mental Health and Mental Retardation, and the Texas Rehabilitation 
Commission concerning transition planning for students receiving special 
education services. The adopted amendment revises the memorandum to clarify 
requirements regarding advance notice of a transition planning meeting. 
 Section 171.3(5) adopts by reference a memorandum of agreement between the 
Texas Department of Criminal Justice, the Texas Commission for the Blind, the 
Texas Commission for the Deaf and Hearing Impaired, the Texas Rehabilitation 
Commission, the Texas Department of Human Services, and the Texas Department of 
Health in compliance with Senate Bill 252 enacted by the 73rd Legislature. The 
memorandum establishes a continuity of care system for offenders with physical 
disabilities and offenders who are terminally ill or significantly ill and 
improves coordination between the parties to the memorandum. 
 The commission received no comments regarding adoption of the amendment. 
 The amendment is adopted under the Human Resources Code, Title 5, Chapter 91, 
which authorizes the commission to adopt rules prescribing the policies and 
procedures followed by the commission in the administration of its programs and 
which authorizes the agency to negotiate interagency agreements with other state 
agencies to extend and improve the regular services provided by the agencies. 
 
  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 September 11, 1995. 
 TRD-9511738 
  Pat D. Westbrook 
 Executive Director 
 Texas Commission for the Blind 
    Effective date: October 4, 1995 
 Proposal publication date: July 25, 1995 
 For further information, please call: (512) 459-2611