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 XV. Health and Human Services Commission CHAPTER 371.Medicaid Fraud and Abuse and Program Integrity SUBCHAPTER F.Pilot Program: On-Site Reviews of Prospective Providers 1 TAC sec.sec.371.1501, 371.1503, 371.1505, 371.1507, 371.1509 The Health and Human Services Commission adopts new sec.sec.371.1501, 371.1503, 371.1505, 371.1507 and 371.1509, in Chapter 371, Medicaid Fraud and Abuse and Program Integrity, new subchapter F, Pilot Program: On-Site Reviews of Prospective Providers, concerning a pilot program to conduct on-site reviews of certain types of providers who are applying to provide services in the Texas Medicaid program, without changes to the proposed text as published in the April 17, 1998, issue of the Texas Register (23 TexReg 3776). The text will not be republished. Section 2.06 of Senate Bill 30, 75th Legislature, Regular Session, directs the Health and Human Services Commission to establish a pilot program to reduce fraud by conducting random on-site reviews of prospective Medicaid providers in targeted counties. The adopted rules set out how the pilot program will operate, in which counties it will occur, and which potential provider types will be reviewed. Senate Bill 30 prescribes the number of counties in which the on-site reviews will occur, as well as the type of personnel who must conduct the reviews. The criteria used to select counties in which to conduct on-site reviews and the scope of the review are based on the commission's experience in handling Medicaid fraud and abuse claims. Senate Bill 30 provides the basis upon which the pilot program may be expanded. Randomly selected prospective providers will be the most equitable method of conducting on-site reviews, thereby precluding claims of bias or prejudice in conducting the reviews. Similarly, using a standard format for the interviews conducted as part of the on-site review will provide uniformity in the way the on-site reviews are conducted. Based on its experience in handling Medicaid fraud and abuse claims, the commission believes that the adopted rules are the best method of conducting on- site reviews of prospective Medicaid providers. No comments were received on the new sections as proposed. The new rules are adopted under the Texas Government Code, Chapter 531, sec.531.033, which authorizes the Commissioner of Health and Human Services to adopt rules necessary to carry out the Health and Human Services Commission's duties under Chapter 531. The new rules affect Chapter 531 of the Texas Government Code and Chapter 32 of the Texas Human Resources Code. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809187 Marina S. Henderson Interim Commissioner Health and Human Services Commission Effective date: June 28, 1998 Proposal publication date: April 17, 1998 For further information, please call: (512) 424-6576 TITLE 4. AGRICULTURE PART I. Texas Department of Agriculture CHAPTER 1. General Procedures SUBCHAPTER K. Employee Training Rules 4 TAC sec.sec.1.700-1.702 The Texas Department of Agriculture (the department) adopts new sec.sec.1.700- 1.702, concerning training for employees of the department, without changes to the proposed text as published in the April 17, 1998, issue of the Texas Register (23 TexReg 3777). The department adopts the new sections to codify policies and procedures currently implemented and administered by the department which provide for an adequately trained, capable and qualified workforce. The new sections will assist the department in providing responsive regulatory and customer services in the performance of agricultural regulatory duties pursuant to the State Employees Training Act, Texas Government Code, Chapter 656, Subchapter C., sec.sec.656.041-656.049. The sections provide requirements for use of state funds for training and education in accordance with the State Employees Training Act, establish components of the department's employee training program, and provide that approval to participate in a training program has no effect on an employee's at-will employment status. No comments were received on the proposal. The new sections are adopted under the Texas Government Code, sec.656.048, which provides that each state agency shall adopt rules relating to the eligibility of the agency's administrators and employees for training and education supported by the agency; and the obligations assumed by the administrators and employees on receiving the training and education. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 4, 1998. TRD-9809016 Dolores Alvarado Hibbs Deputy General Counsel Texas Department of Agriculture Effective date: June 24, 1998 Proposal publication date: April 17, 1998 For further information, please call: (512) 463-7541 TITLE 13. CULTURAL RESOURCES PART I. Texas State Library and Archives Commission CHAPTER 8.TexShare Library Consortium 13 TAC sec.sec.8.1-8.6 The Texas State Library and Archives Commission adopts new sec.sec.8.1- 8.6 regarding establishment and operation of the TexShare library consortium. Section 8.4 is adopted with changes to the proposed text as published in the April 10, 1998, issue of the Texas Register (23 TexReg 3645). Sections 8.1 - 8.3 and sec.sec.8.5 - 8.6 are adopted without changes to the proposed text as published, and the text will not be republished. The sections are necessary for the commission to operate the TexShare consortium for libraries at institutions of higher education. The TexShare consortium was transferred to the Texas State Library and Archives Commission by the 75th Legislature. The new sections establish policies to govern the operation of the TexShare library consortium. They set forth membership criteria, establish policies for an advisory board, and propose guidelines for grants to members. The sections will guide the commission and institutions of higher education in their joint efforts to enhance the quality of higher education through efficient exchange of information and sharing of library resources. The following is a summary of comments received. Following each comment is the commission's response. Comment: The composition of the advisory board should be expanded to include one health sciences center librarian and one law school librarian as permanent representatives on the board. Response: The composition of the advisory board is established in the statute, and the relevant text in proposed sec.8.4(a) is taken directly from the statute. There is only one at-large position, so both a medical and law librarian could not be accommodated. However, the section as written does not make it clear that a ninth board position exists. A sentence will be added to sec.8.4(a) to make it clear that there is ninth member on the board without a specified affiliation as follows: the ninth member is at large without any affiliation specified. The commission will be able to consider representation for medical and law librarians in selecting persons for the ninth board position. The following groups or associations made comments for or against the rule: Texas Association of Academic Health Sciences Library Directors requested a change in sec.8.4(a). The new sections are adopted under authority of Government Code 441.205(b) as amended by HB 2721, Acts, 75 Legislature, R.S. (1997) which authorize the commission to adopt rules to govern the operation of the consortium. sec.8.4.Advisory Board. (a) The commission shall appoint a nine-member advisory board to advise the commission on matters relating to the consortium. At least two members must be public members, at least two members must be affiliated with a four-year public university in the consortium, at least two members must be affiliated with a public community college in the consortium, and at least two members must be affiliated with a private institution of higher education in the consortium. The ninth member is at large without any affiliation specified. Members of the advisory board must be qualified by training and experience to advise the commission on policy. (b) Members of the advisory board shall be chosen to present as much variety as possible in geographic distribution and size and type of institution. (c) The advisory board shall meet at least twice a year regarding consortium programs and plans at the call of the advisory board's chairman or of the director and librarian. (d) Members of the advisory board serve three-year terms beginning September 1. (e) A member of the advisory board serves without compensation but is entitled to reimbursement for actual and necessary expenses incurred in the performance of official duties, subject to any applicable limitation on reimbursement provided by the General Appropriations Act. (f) The advisory board shall elect a chairman, vice chairman, and secretary at the first meeting of each fiscal year. (g) The advisory board may recommend to the commission that the consortium enter into cooperative projects with entities other than institutions of higher education. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 4, 1998. TRD-9809045 Raymond Hitt Assistant State Librarian Texas State Library and Archives Commission Effective date: June 24, 1998 Proposal publication date: April 10, 1998 For further information, please call: (512) 463-5440 TITLE 16. ECONOMIC REGULATION PART I. Railroad Commission of Texas CHAPTER 3.Oil and Gas Division 16 TAC sec.3.102 The Railroad Commission of Texas adopts new sec.3.102, concerning a severance tax reduction for incremental production, without changes to the proposed text as published in the April 3, 1998, issue of the Texas Register (23 TexReg 3404). The commission adopts the section to implement the Texas Tax Code, sec.202.057, which was added by the 75th Legislature, Regular Session, effective September 1, 1997. The purpose of this section is to provide a procedure by which an operator may obtain from the Comptroller a 50% severance tax reduction on qualified incremental production. The commission determines an incremental production ratio that the Comptroller applies to a lease's monthly total production to arrive at the qualified incremental production entitled to the 50% severance tax reduction. The section provides for a hearing if an operator is dissatisfied with the administrative disposition of his application to the commission for certification of an incremental production ratio. Participation in this incentive is voluntary. If, however, an operator does choose to participate, an incremental production technique costing at least $5,000 is required as one part of eligibility for the incentive. Implementation of this tax incentive should result in increased oil and casinghead gas production from wells that now produce only marginally, which will be of general benefit to the Texas economy. Texas Oil & Gas Association was the only commenter. The association favors the section and suggested no changes in the proposed text. The new section is adopted under Texas Tax Code, sec.202.057 which provides the commission with the authority to certify an incremental production ratio that an operator provides to the comptroller upon making application for the 50% severance tax reduction. Texas Tax Code, sec.sec.202.051, 201.053, and 201.058, are affected by this rule. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas on June 3, 1998. Filed with the Office of the Secretary of State on June 3, 1998. TRD-9808975 Mary Ross McDonald Deputy General Counsel Railroad Commission of Texas Effective date: June 23, 1998 Proposal publication date: April 3, 1998 For further information, please call: (512) 463-7008 CHAPTER 5.Rail Division SUBCHAPTER A.General Provisions 16 TAC sec.5.10 The Railroad Commission of Texas adopts new sec.5.10, relating to the rail advisory committee, with changes to the version published in the May 1, 1998, issue of the Texas Register (23 TexReg 4161). Pursuant to the requirements of Texas Government Code, sec.sec.2110.001--2110.008, the new section creates the rail advisory committee of the commission and establishes its duration; sets forth the purpose and duties of the committee; prescribes the composition of the committee, the nomination and appointment process, and the term of committee membership; and sets forth the mechanisms by which the committee meets, performs its work, and is evaluated. The purpose of the committee is to give the commission the benefit of the members' collective business, technical, and operating expertise and experience; to help the commission in obtaining timely information about the conditions and reliability of rail service for Texas shippers; and to develop comprehensive policy options which support the needs of both shippers and the rail industry and which the commission can advance to the Texas legislature and the federal government. The committee's sole duty is to advise the commission. The committee has no executive or administrative powers or duties with respect to the operation of the division. As proposed, sec.5.10(b) would have established the rail advisory committee for four years. However, because it is likely that the committee will have completed its work prior to the next legislative session, the commission adopts sec.5.10(b) with an automatic abolition date of December 1, 1998, unless the commission amends the subsection to establish a different date. This change necessitates changes in subsections (d), (g), and (h), relating to membership terms and nomination and appointment of members as well. As adopted, sec.5.10(d) increases the committee membership by two--one additional consumer representative and one additional local government representative--to 24 members, 23 of whom will be voting members. The director of the Rail Division will serve as an ex officio, non-voting member of the committee. The 23 voting members, all of whom serve at the pleasure of the commission, will include 12 consumer representatives; five industry representatives from Class 1, Class 2, or Class 3 railroads; and six local government representatives. Any person may nominate a candidate or candidates for membership on the committee. Nominations are to be made in writing and may be submitted to the commission, a commissioner, or the director of the division for transmittal to the commission. All members of the committee and subcommittees are appointed by and serve at the pleasure of the commission. The commission will appoint members of the committee such that the composition of the committee meets the requirements of subsections (d) and (e) of the rule. If a member resigns or otherwise vacates his or her position prior to the end of his or her term, the commission will appoint a replacement to serve the remainder of the unexpired term. The commission will not reimburse members for travel or other expenses related to service on the committee or subcommittees. As proposed, sec.5.10(f) created three subcommittees to the rail advisory committee; however, based on the comments received, as well as on additional reflection on ways to make the committee as flexible as possible, the commission has determined that it will not initially divide the whole committee into subcommittees. Under sec.5.10(f) as adopted, as the commission determines that a subcommittee is needed, the commission will appoint committee members to serve on the subcommittee and will appoint the chair of the subcommittee. This arrangement will afford the commission the ability to address issues as they may arise, particularly emergent situations. The rail advisory committee will meet at the call of the presiding officer or the commission, and subcommittees, if impaneled, will meet at the call of the subcommittee chair, the presiding officer or the commission. Committee and subcommittee meetings are open to the public. The rail division staff will record and maintain the originals of the minutes of each committee and subcommittee meeting, will maintain a record of actions taken by the committee and subcommittees, and will distribute copies of approved minutes and other committee and subcommittee documents to the commission and the committee and subcommittee members. By October 1 of each year, the rail division director will evaluate for the previous fiscal year and report to the commission on the committee's work; the committee's usefulness; and the costs related to the committee's existence, including the cost of commission staff time spent in support of the committee's and subcommittees' activities. The commission will biennially report to the Legislative Budget Board the information developed by the division director in evaluating the committee's costs and benefits. The commission received no comments from any group or association. The commission received comments from two companies, the Union Pacific Railroad Company (Union Pacific) and the Burlington Northern Santa Fe Railway (BNSF). Union Pacific and BNSF both commented generally on their concern about the purpose of the committee because many of the issues to be considered by the committee are within the sole and exclusive jurisdiction of either the Surface Transportation Board or the Federal Railroad Administration. Citing the Interstate Commerce Commission Termination Act and the Federal Railroad Safety Act of 1970, the BNSF pointed out that economic regulation and railroad safety regulation are areas where federal preemption of state regulation is clear. The commission disagrees that issues which might be considered by the advisory committee are solely under the purview of the federal government. Besides the fact that the rail committee is advisory in nature and has no power to mandate or require action on the part of railroads, issues such as public safety, railroad infrastructure, and rail-to-rail competition are not exclusively federal. Union Pacific commented that the definition of "industry representative" in sec.5.10(a) is so broad as to potentially deny railroads meaningful participation, and proposed that the definition be limited to persons actually engaged in the business of railroad operations. The commission agrees that persons actually engaged in the business of railroad operations should be participants. However, other entities that have significant experience in railroad operations should not be excluded from participation; the commission's goal is to ensure that it receives input from as broad a spectrum of interested entities as possible. BNSF commented that railroads should represent the industry, that there should be a minimum of three Class 1 railroads on the committee, that a Class 1 railroad representative be on each subcommittee, and that there should be an equal number of railroads, local government, and consumer representatives. Union Pacific also commented that the proposed committee makeup seems slanted against the railroad industry. Union Pacific also commented that the composition of the committee does not provide for balanced representation as required by Texas Government Code, sec.2110.002, and proposed that the makeup of the committee be changed to include an equal number of railroad, local government, and customer representatives and that industry representation include a specialist in each subcommittee area. The commission disagrees that the committee representation is skewed. Indeed, the makeup of the committee is significantly more balanced than the actual ratio of shippers to the number of railroads who serve them. Further, in an attempt to receive viewpoints from as diverse a group as possible, the commission has increased the number of participants to the maximum number allowed by statute. Also, in order to foster the maximum amount of flexibility, the commission has determined to initially appoint only the whole committee and not any subcommittees. Consequently, the commission disagrees that industry representation should include specialists other than the representative appointed by the commission. Further, the commission does not agree that the standard of "balanced representation" imposed by Texas Government Code, sec.2110.002, demands numerical identity. Union Pacific's comments appear to assume, moreover, that the consumer and local government representatives would somehow be aligned against the rail industry representatives. The commission adopts this particular advisory committee structure because it recognizes that all economic activity-- the rail industry as well as the industries represented by consumers of rail services--brings benefits and imposes burdens. The commission makes no such assumptions about alignment of interests but instead creates the advisory committee so as to derive the broadest scope of information, expertise, viewpoints, and ideas. Union Pacific proposed that, because rail industry representatives are subject to frequent relocation or reassignment, the rule should allow industries to nominate a replacement for vacancies caused by such relocation or reassignment. In response, the commission points out that any person may nominate a candidate for membership on the advisory committee; since the industry will know sooner than the commission whether the industry representatives will be relocated or reassigned, the industry will be able to make replacement nominations virtually immediately. Both commenters stated that the committee chair should be selected by the committee and not the commission. Texas Government Code, sec.2110.003(a), provides that an advisory committee is to select its chair from among its members, unless a different procedure for selecting the presiding officer is prescribed by other law. The commission rejects the idea that the commission cannot appoint the chair of an advisory committee which is a creation of the commission, and views Texas Civil Statutes, Articles 6445 and 6448a as conferring sufficiently broad authority for the commission to appoint the chair. Further, because of the differing circumstances of each representative there will be varying degrees of participation. It is probable that the position of committee chair will require a substantial amount of time; to ensure a successful undertaking, the commission must be able to appoint as the chair a committee member who can commit to the rigors of the task. Finally, Union Pacific requested that any revised rules be subject to public comment. The commission declines to delay the adoption of the rule implementing the rail advisory committee, finding that under the standards articulated in State Board of Insurance v. Deffebach, 631 S.W.2d 794, (Tex. App.--Austin 1982, ref. n.r.e.), there is no legal requirement that the amended rules be republished before they may be adopted. As adopted, the rule affects no subject or person other than those previously given notice, nor is any greater burden imposed on those who are potentially affected. The commission adopts the new section under Texas Civil Statutes, Article 6445, which gives the commission broad authority to regulate railroads and to perform other duties in connection with such regulation, and to adopt all necessary regulations; Texas Civil Statutes, Article 6448a, which authorizes the commission to issue rules as permitted by the Federal Railroad Safety Act of 1970; and Texas Government Code, sec.sec.2110.001--2110.008, which mandate specific requirements for state agency advisory committees. Texas Civil Statutes, Articles 6445 and 6448a, and Texas Government Code, sec.sec.2110.001--2110.008, are affected by the adopted new section. sec.5.10.Rail Advisory Committee. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Commission--The Railroad Commission of Texas. (2) Committee--The Rail Advisory Committee of the commission. (3) Consumer representative--A member of the committee who is not engaged in the business of railroad operations, but who is an end user of rail transportation or related services, including but not limited to shippers of aggregates and concrete, agricultural products, chemicals, plastics, scrap metal and recycled materials, forest products, or automobiles. (4) Division--The Rail Division of the commission. (5) Fiscal year--September 1 of a year through August 31 of the following year. (6) Industry representative--A member of the committee who is engaged in the business of railroad operations, or who is engaged in the business of performing services of any type for a railroad. (7) Local government representative--A member of the committee who is an elected official for a city or county; a member of the board of a rural rail transportation district; or a representative of a port authority. (8) Member--An industry representative, a consumer representative, or a local government representative who serves on the committee. (9) Presiding officer--The chair of the committee. (b) Establishment; duration. The Rail Advisory Committee of the commission is hereby established effective July 1, 1998. The committee is abolished on December 1, 1998, unless the commission amends this subsection to establish a different date. (c) Purpose and duties. The purpose of the committee is to give the commission the benefit of the members' collective business, technical, and operating expertise and experience; to help the commission in obtaining timely information about the conditions and reliability of rail service for Texas shippers; and to develop comprehensive policy options which support the needs of both shippers and the rail industry and which the commission can advance to the Texas legislature and the federal government. The committee's sole duty is to advise the commission. The committee has no executive or administrative powers or duties with respect to the operation of the division; all such powers and duties rest solely with the commission. (d) Composition of committee; membership term. The committee shall be composed of 24 members, 23 of whom shall be voting members. The voting members' terms shall be from the date of appointment through the date the committee is automatically abolished pursuant to subsection (b) of this section. The director of the Rail Division shall serve as an ex officio, non-voting member of the committee. The 23 voting members, all of whom serve at the pleasure of the commission, shall include: (1) 12 consumer representatives; (2) five industry representatives from Class 1, Class 2, or Class 3 railroads; and (3) six local government representatives. (e) Presiding officer; other officers. The commission shall designate a member of the committee to be the presiding officer who shall report the committee's advice and attendance in writing to the commission. The committee may elect other officers at its pleasure. (f) Subcommittees. (1) The commission may appoint committee members to serve on one or more subcommittees. (2) If a subcommittee is impaneled, the commission shall appoint the subcommittee chair. (3) A subcommittee chair shall make written reports regarding the subcommittee's work to the presiding officer no less often than quarterly. The presiding officer may require subcommittee chairs to make written reports more frequently. (g) Nominations for committee membership. Any person may nominate a candidate or candidates for membership on the committee. Nominations shall be made in writing and may be submitted to the commission, a commissioner, or the director of the division for transmittal to the commission. (h) Appointment of members. All members of the committee and subcommittees are appointed by and serve at the pleasure of the commission. The commission shall appoint members of the committee such that the composition of the committee meets the requirements of subsections (d) and (e) of this section. If a member resigns or otherwise vacates his or her position prior to the end of his or her term, the commission shall appoint a replacement who shall serve the remainder of the unexpired term. (i) Meetings. The committee shall meet at the call of the presiding officer or the commission. Subcommittees shall meet at the call of the subcommittee chair, the presiding officer or the commission. Committee and subcommittee meetings are open to the public. (j) Reimbursement of members' expenses. The commission shall not reimburse members for travel or other expenses related to service on the committee or subcommittees. (k) Committee and subcommittee records. The division staff shall record and maintain the originals of the minutes of each committee and subcommittee meeting. The division shall maintain a record of actions taken by the committee and subcommittees and shall distribute copies of approved minutes and other committee and subcommittee documents to the commission and the committee and subcommittee members. (l) Evaluation of committee costs and benefits. By October 1 of each year, the division director shall evaluate for the previous fiscal year and report to the commission: (1) the committee's work; (2) the committee's usefulness; and (3) the costs related to the committee's existence, including the cost of commission staff time spent in support of the committee's and subcommittees' activities. (m) Report to Legislative Budget Board. The commission shall biennially report to the Legislative Budget Board the information developed under subsection (l) of this section in evaluating the committee's costs and benefits. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas on June 2, 1998. Filed with the Office of the Secretary of State on June 2, 1998. TRD-9808891 Mary Ross McDonald Deputy General Counsel Railroad Commission of Texas Effective date: June 22, 1998 Proposal publication date: May 1, 1998 For further information, please call: (512) 463-7008 TITLE 22. EXAMINING BOARDS PART V. State Board of Dental Examiners CHAPTER 104.Continuing Education 22 TAC sec.104.1 The State Board of Dental Examiners adopts amendments to sec.104.1, Requirement, without changes to proposed text as published in the April 17, 1998, issue of the Texas Register (23 TexReg 3795). The amended sec.104.1 will comply precisely with the language in the Dental Practice Act regarding mandatory continuing education for dentists and dental hygienists. The amended sec.104.1 now provides that licensees must complete required continuing education in order to maintain licensure, rather than imposing completion of continuing education as a prerequisite to renewal of a license. No comments were received regarding adoption of the amendment. The amended rule is adopted under Texas Government Code sec.2001.021 et seq; Texas Civil Statutes, Article 4543, Section 2 and Article 4551d which provide the State Board of Dental Examiners with the authority to adopt and promulgate rules consistent with the Dental Practice Act; and Article 4544, Section 5 and Article 4551e, Section 5A. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809179 Douglas A. Beran, Ph.D. Executive Director State Board of Dental Examiners Effective date: June 28, 1998 Proposal publication date: April 17, 1998 For further information, please call: (512) 463-6400 22 TAC sec.104.4 The State Board of Dental Examiners adopts amendments to sec.104.4, Penalties, without changes to proposed text as published in the April 17, 1998, issue of the Texas Register (23 TexReg 3795). The amended sec.104.4 provides a method for the board to enforce compliance with statutorily mandated continuing education. The intent of the amendments is to establish procedures for imposition of sanctions for such failures. The cornerstone of the board's enforcement of the statute is the affidavit of licensees seeking license renewal. Falsification of the affidavit will be treated as a separate violation and will subject the actor to the full range of sanctions provided by law. A licensee who upon request cannot produce proof of compliance with continuing education requirements will be afforded 90 days to comply. If compliance is achieved, the board will notify the licensee that an administrative fine, fixed by schedule set forth in other rules, will be imposed. The fine is proposed as an inducement to licensees to comply timely with continuing education requirements as discovery by the Board of failure to do so will lead to disciplinary actions i.e., fine, or disciplinary procedures. Licensees who do not comply within the 90 day period will be subject to revocation procedures. Licensees must meet continuing education requirements if they are to maintain licensure; thus, failure to meet such requirements will result in revocation proceedings. The amended sec.104.4 in subsection (b) provides for imposition of penalties for violations; in subsection (c) provides that falsification of the attestation clause described in subsection (a) will result in the implementation of disciplinary procedures; in subsection (d) provides that a licensee who fails to document successful completion of required continuing education courses will be given a 90 day period to cure, i.e., complete the required continuing education and that an administrative fine will be proposed for such failure if the deficiency is cured. If the deficiency is not cured the board will initiate a disciplinary proceeding, non administrative, to revoke the license's license. No comments were received regarding adoption of the amendment. The amended rule is adopted under Texas Government Code sec.2001.021 et seq; Texas Civil Statutes, Article 4543, Section 2 and Article 4551d which provide the State Board of Dental Examiners with the authority to adopt and promulgate rules consistent with the Dental Practice Act; and Article 4544, Section 5, Article 4551e, Section 5A, which requires minimum continuing education of licensees, Article 4548h, and Article 4548j which provide for impositions of sanctions upon licensees who violate the law affecting practice of dentistry. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809180 Douglas A. Beran, Ph.D. Executive Director State Board of Dental Examiners Effective date: June 28, 1998 Proposal publication date: April 17, 1998 For further information, please call: (512) 463-6400 CHAPTER 107.Dental Board Procedures SUBCHAPTER D.Administrative Penalties 22 TAC sec.107.200 The State Board of Dental Examiners adopts amendments to sec.107.200, Administrative Penalty, without changes to the proposed text as published in the April 24, 1998, issue of the Texas Register (23 TexReg 3990). The amended sec.107.200 provides that licensees comply with the Dental Practice Act and Board rules because of possible penalties that may be assessed for lack of compliance. The amended sec.107.200 at subsection (a) provides that administrative penalties for failure to complete required continuing education hours will be set forth in sec.107.201. Rule 107.201 sets administrative penalties for all other violations of the Dental Practice Act and rules of the Board. No comments were received regarding adoption of this amendment. The amended rule is adopted under Texas Government Code sec.2001.021 et seq; Texas Civil Statutes, Article 4543, Section 2 and Article 4551d which provide the State Board of Dental Examiners with the authority to adopt and promulgate rules consistent with the Dental Practice Act; and Article 4548j. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809181 Douglas A. Beran, Ph.D. Executive Director State Board of Dental Examiners Effective date: June 28, 1998 Proposal publication date: April 24, 1998 For further information, please call: (512) 463-6400 22 TAC sec.107.201 The State Board of Dental Examiners adopts new sec.107.201, Administrative Penalties, without changes to the proposed text as published in the April 17, 1998, issue of the Texas Register (23 TexReg 3797). The effect of new sec.107.201 is that licensed dentists and dental hygienists will be encouraged to comply with the continuing education requirements rather than pay penalties. The new sec.107.201 provides for the amounts of administrative penalties for failure to complete required continuing education hours. Fines are arrayed in three ranges based on the amount of continuing education hours not completed. The amount of fine for a second offense is doubled for each range. The amounts of fines are intended to be of sufficient magnitude to indicate that failure to timely complete continuing education is a serious offense while at the same time not being unnecessarily punitive, especially in situations where some continuing education hours have been completed. The schedule is proposed in response to Article 4545a of the Dental Practice Act which requires the agency to adopt by rule an administrative fine schedule. The existing schedule in rule 107.200 was developed to cover all violations of the Dental Practice Act and board rules and, thus, is not specific to continuing education violations. This rule is intended to provide specifically for continuing education violations. No comments were received regarding adoption of this new rule. The new rule is adopted under Texas Government Code sec.2001.021 et seq; Texas Civil Statutes, Article 4543, Section 2 and Article 4551d which provide the State Board of Dental Examiners with the authority to adopt and promulgate rules consistent with the Dental Practice Act; and Article 4544, Section 5, Article 4551e, This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809182 Douglas A. Beran, Ph.D. Executive Director State Board of Dental Examiners Effective date: June 28, 1998 Proposal publication date: April 17, 1998 For further information, please call: (512) 463-6400 22 TAC sec.107.400 The State Board of Dental Examiners adopts new sec.107.400, Reportable Disciplinary Action without changes to the proposed text as published in the April 17,1998, issue of the Texas Register (23 TexReg 3798). The new sec.107.400 provides that superfluous information regarding action against a licensee will not be reported to the public because such information does not reflect a practitioner's quality of care. The new sec.107.400 establishes a method whereby a licensee who has only one board order that addressed specified violations that are minor may, after passage of the required time, request that the board will report to individuals who may inquire concerning licensing status of the practitioner's license that he or she has no reportable actions. The conditions set forth are intended to protect the public's interest in having ready access to information that a licensee has been disciplined if the violation found is of the sort that imposed risk upon patients or the public. This rule will provide licensees who were sanctioned for minor offenses in the past and who have no subsequent disciplinary actions, upon request and after review, to have no reportable actions shown on their records. For example, a board order issued 15 years past for an advertising violation that is no longer a violation, is still shown on a licensee's record. This rule will allow a licensee in such a situation to request that reports by the board concerning his license status show no reportable actions, and allows the board to do so, if after review it determines that the actions for which discipline was imposed meets rule criteria. One comment was received regarding adoption of the new rule. The commentor commended the board for proposing this rule and urged its adoption. The new rule is adopted under Texas Government Code sec.2001.021 et seq; Texas Civil Statutes, Article 4543, Section 2 and Article 4551d which provide the State Board of Dental Examiners with the authority to adopt and promulgate rules consistent with the Dental Practice Act. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809183 Douglas A. Beran, Ph.D. Executive Director State Board of Dental Examiners Effective date: June 28, 1998 Proposal publication date: April 17, 1998 For further information, please call: (512) 463-6400 CHAPTER 109.Conduct Fair Dealing 22 TAC sec.109.144 The State Board of Dental Examiners adopts amendments to sec.109.144, with changes to the proposed text as published in the April 17, 1998, issue of the Texas Register (23 TexReg 3799). Subsection (f)(3) is changed to provide that dollar amounts in paragraph (3) subparagraphs (A)-(E) are maximum amounts; the language as published provided that charges were required at the amounts shown in the subparagraphs. The amended sec.109.144 provides that a dental patient may have access to his/her dental records but at a reasonable cost. The amended sec.109.144 at subsection (f) provides that a dentist must make a patient's dental records available at reasonable cost when the patient requests them. Without this rule there is no requirement that a dentist make copies of a patient's record available to the patient upon request. The board is of the opinion that a patient should be able to obtain copies of his/her records at a reasonable cost. Further, it provides maximum amounts that may be charged for copies and requires that copies be made available within 30 days. Other amendments to subsections (a) and (c) clarify the name of the board. No comments were received regarding adoption of the amendment. The amended rule is adopted under Texas Government Code sec.2001.021 et seq; Texas Civil Statutes, Article 4543, Section 2 and Article 4551d which provide the State Board of Dental Examiners with the authority to adopt and promulgate rules consistent with the Dental Practice Act. sec.109.144. Records and Their Transfer. (a) Dental records shall be made available for inspection and reproduction on demand by the officers, agents, or employees of the State Board of Dental Examiners. (b) (No change.) (c) Dental records are the sole property of the dentist who performs the dental service. A dentist who leaves a location, whether by retirement, sale, or otherwise, shall either take all said dental records with him, make a written transfer of records to the succeeding dentist, or make a written agreement for the maintenance of records, and the State Board of Dental Examiners' Central Office shall be notified within 15 days of any such event, giving full information concerning the dentists and location(s) involved. A maintenance of records agreement shall not transfer ownership of the dental records, but shall require: (1) that the dental records be maintained in accordance with the laws of the State of Texas and the Rules of the State Board of Dental Examiners; and (2) that the dentist(s) performing the service(s) recorded shall have access to and control of the records for purposes of inspection and copying. A maintenance of records agreement may be made at any time in an employment or other working relationship between a dentist and another entity. A maintenance of records agreement may apply to all or any part of the dental records generated in the course of the relationship, including future dental records. The provisions of this subsection for a transfer of records or a maintenance of records agreement shall not be construed to require a written agreement when a dentist performs dental services in the employ of another dentist or entity and the dentist performing the dental services leaves the resulting records in the possession of the employing dentist or entity. (d)-(e) (No change.) (f) A dentist shall furnish copies of his dental records as described in section (b) of this title to a patient who requests his or her dental records. Requested copies including radiographs shall be furnished within 30 days of the date of the request, provided, however, that copies need not be released until payment of copying costs has been made. (1) A dentist providing copies of patient dental records is entitled to a reasonable fee for copying which shall be no more than $25 for the first 20 pages and $.15 per page for every copy thereafter. (2) Fees for radiographs, which if copied by an x-ray duplicating service, may be equal to actual costs verified by invoice. (3) Reasonable costs for radiographs duplicated by means other than by an x-ray duplicating service shall not exceed the following charges: (A) a full mouth series: $15; (B) a panoramic x-ray: $15; (C) a lateral cephalogram: $15; (D) a single extra-oral x-ray: $5.00 (E) a single intra-oral x-ray: $5.00 This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809184 Douglas A. Beran, Ph.D. Executive Director State Board of Dental Examiners Effective date: June 28, 1998 Proposal publication date: April 17, 1998 For further information, please call: (512) 463-6400 PART VIII. Texas Appraiser Licensing and Certification Board CHAPTER 153. Provisions of the Texas Appraiser Licensing and Certification Act 22 TAC sec.sec.153.1, 153.8, 153.13, 153.18 The Texas Appraiser Licensing and Certification Board adopts amendments to sec.sec.153.1, 153.13, and 153.18 and new sec.153.8, concerning provisions of the Texas Appraiser Licensing and Certification Act. Section 153.18 is adopted with changes to the proposed text as published in the March 6, 1998, issue of the Texas Register (23 TexReg 2212). Sections 153.1, 153.8 and 153.13 are adopted without changes and will not be republished. Section 153.1 is amended to incorporate new definitions for terms which are used in other sections being concurrently adopted. The new definitions should help eliminate confusion and misunderstandings about the meanings of the terms. Section 153.13 is amended to: eliminate unnecessary and dated language; increase the number of hours of fundamental real estate appraisal courses as part of the unchanged total educational requirements; require that courses specifically must be approved by the board to be acceptable; provide that the board will accept only those Uniform Standards of Professional Practice (USPAP) courses which have been completed within two years of application submission; and add language similar to the Appraisal Qualifications Board (AQB) criteria and interpretations for distance education (formerly called correspondence courses). Section 153.18 is amended to: require a seven-hour USPAP course each renewal rather than every other renewal; restructure the appraiser trainee renewal education; and add language similar to the AQB criteria and interpretations for distance education (formerly called correspondence courses). The following changes were made to sec.153.18: The last sentence in subsection (b) now reads: The courses must comply with fundamental education requirements for application for licensing and certification set out in sec.153.13(e)-(n) of this title (relating to Education Requirements). Subsection (d)(2) was changed to read as follows: The following types of educational offerings that may be accepted for meeting the ACE requirements are listed in subparagraphs (A)-(L) of this paragraph:. In subsection (d)(2)(F) a comma was added after the word courses. New sec.153.8 is adopted to add the scope of practice as adopted by the AQB criteria and interpretations, to assist Texas licensees in determining what types of real property they may appraise with various classifications of certifications and licenses. The Texas Appraiser Licensing and Certification Board met at its regular meeting on May 29, 1998. No written or oral comments were received regarding adoption of the amendments and new section. The amendments and new section are adopted under the Powers and Duties of the Board, Texas Appraiser Licensing and Certification Act, sec.5, (a) (1), (2), (3), and (7) (Texas Civil Statutes, Article 6573a.2), and sec.14(c), Certificate and License Renewal. sec.153.18. Appraiser Continuing Education. (a) Renewing a Certification or License. An appraiser must successfully complete the equivalent of at least 28 classroom hours of appraiser continuing education (ACE) courses approved by the board during the two year period preceding the expiration of the certification or license. Renewals due after January 1, 1999, shall include a minimum of seven classroom hours devoted to the Uniform Standards of Professional Practice (USPAP). The courses must comply with the requirements set out in subsection (d) of this section. (b) Renewing an Appraiser Trainee Authorization. As a condition for renewing an appraiser trainee authorization, a trainee must successfully complete educational courses during the one-year period preceding the expiration of the appraiser trainee authorization being renewed. The courses must comply with fundamental education requirements for application for licensing and certification set out in sec.153.13 (e) - (n) of this title (relating to Educational Requirements): (1) for the first annual renewal, 15 classroom hours devoted to the USPAP which shall include the successful completion of an examination; (2) for the subsequent annual renewals, 30 classroom hours of fundamental real estate appraisal courses specifically approved by the board; (3) Beginning with the third annual renewal, every other annual renewal (third, fifth, seventh, etc.) must include a minimum of 7 classroom hours devoted to the USPAP as part of the 30 classroom hours. (c) (No change.) (d) In approving ACE courses, the board shall base its review and approval of appraiser continuing education courses upon the then current appraiser qualification criteria of the Appraiser Qualifications Board (AQB). (1) (No change.) (2) The following types of educational offerings that may be accepted for meeting the ACE requirements are listed in subparagraphs (A)-(L) of this paragraph: (A)-(C) (No change.) (D) a course that meets the Texas Real Estate Commission mandatory continuing education (MCE) requirements, provided it is devoted to one or more of the appraisal related topics of the then current appraiser qualifications criteria of the AQB for continuing education, and which specifically has been approved by the board; (E) (No change.) (F) distance education courses, provided that the course is approved by the board and meets one of the following conditions listed in clauses (i)-(iv) of this subparagraph: (i) the course is presented to an organized group in an instructional setting with a person qualified and available to answer questions, provide information, and monitor student attendance, and is a minimum of two classroom hours and meets the requirements for continuing education courses established by the AQB; or (ii) the course either has been presented by an accredited college or university that offers distance education programs in other disciplines, or has received either the American Council on Education's Program on Non-collegiate Sponsored Instruction (ACE/PONSI) approval for college credit or the AQB's approval through the AQB Course Approval Program; and the course meets the following requirements listed in subclauses (I)-(II) of this clause: (I) the course is equivalent to a minimum of two classroom hours in length and meets the requirements for real estate appraisal-related courses established by the Appraisal Qualifications Board; and (II) the student successfully completed a written examination proctored by an official approved by the presenting college or university or by the sponsoring organization consistent with the requirements of the course accreditation; or if a written examination is not required for accreditation, the student successfully completes the course mechanisms required for accreditation with demonstrated mastery and fluency (said mechanisms must be present in a course without an exam in order to be acceptable). (iii) (No change.) (iv) a minimum time equal to the number of hours of credit must elapse from the date of course enrollment until its completion. (G)-(I) (No change.) (J) Effective January 1, 1999, as, part of the 28 classroom hour ACE requirement, an appraiser must successfully complete a minimum of seven classroom hours of instruction devoted to the USPAP before each renewal. (K)-(L) (No change.) This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 5, 1998. TRD-9809063 Renil C. Liner Commissioner Texas Appraiser Licensing and Certification Board Effective date: January 1, 1999 Proposal publication date: March 6, 1998 For further information, please call: (512) 465-3950 PART XI. Board of Nurse Examiners CHAPTER 213.Practice and Procedure 22 TAC sec.sec.213.1-213.33 The Board of Nurse Examiners adopts the repeal of sec.sec.213.1-213.33 concerning Definitions, Construction, Pleading, Representation, Appearance, Agreements in Writing, Final Disposition, Filing of Documents, Computation of Time, Notice and Service, Motion for Continuance, Witness Fees and Expenses, Complaint Investigation and Disposition, Preliminary Notice to Respondent in Disciplinary Matters, Commencement of Disciplinary Proceedings, Respondent's Answer in a Disciplinary Matter, Discovery, Depositions, Subpoenas, Informal Proceedings, Agreed Disposition, Formal Hearing Procedures and Practices, Decision of the Board, Rescission of Probation, Monitoring, Reissuance of a License, Good Professional Character, Licensure of Persons with Criminal Convictions, Eligibility and Disciplinary Criteria Regarding Intemperate Use and Lack of Fitness, Declaratory Order of Eligibility for Licensure, Cross Reference of Rights and Options Available to Licensees and Petitioners, Schedule of Fines, and Penalty/Sanction Factors without changes in the proposed text as published in the May 1, 1998, issue of the Texas Register (23 TexReg 4164). The repeal would allow for the adoption of new sections. The Board of Nurse Examiners has reviewed Chapter 213, Practice and Procedure, and has determined that a complete revision is necessary, due in part to the newly adopted State Office of Administrative Hearings rules and to efforts to streamline staff processes. No comments were received regarding adoption of the repeals. The repeals are 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 adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809131 Katherine A. Thomas, MN, RN Executive Director Board of Nurse Examiners Effective date: September 1, 1998 Proposal publication date: May 1, 1998 For further information, please call: (512) 305-6811 22 TAC sec.sec.213.1-213.33 The Board of Nurse Examiners adopts new sec.sec.213.1-213.33 concerning Definitions, Construction and Application, Pleading, Representation, Appearance, Agreements in Writing, Final Disposition, Filing of Documents, Computation of Time, Notice and Service, Non SOAH - Motion for Continuance, Witness Fees and Expenses, Complaint Investigation and Disposition, Preliminary Notice to Respondent in Disciplinary Matters, Commencement of Disciplinary Proceedings, Respondent's Answer in a Disciplinary Matter, Discovery, Depositions, Subpoenas, Informal Proceedings, Agreed Disposition, Formal Proceedings, Decision of the Board, Rescission of Probation, Monitoring, Reissuance of a License, Good Professional Character, Licensure of Persons with Criminal Convictions, Criteria and Procedure Regarding Intemperate Use and Lack of Fitness in Eligibility and Disciplinary Matters, Declaratory Order of Eligibility for Licensure, Cross Reference of Rights and Options Available to Licensees and Petitioners, Schedule of Fines, Penalty/Sanction Factors, and Witness Fees and Expenses. Section 213.12 is adopted with changes to the text as published in the May 1, 1998, issue of the Texas Register (23 TexReg 4165). There were no changes made in sec.sec.213.1-213.11 and sec.sec.213.13-213.33; therefore, the text will not be republished. The Board of Nurse Examiners has reviewed Chapter 213, Practice and Procedure, and has determined that a complete revision is necessary, due in part to the newly adopted State Office of Administrative Hearings rules and to efforts to streamline staff processes. The new chapter states the requirements for application of the statute and the manner in which those requirements will be implemented. In addition, the amendments will provide the necessary requirements needed to reactivate a license which has been refused. A comment was received from the Comptroller of Public Accounts regarding clarification of the reimbursement amounts in the State of Texas Travel Allowance Guide set by the legislature, not the comptroller's office. The agency concurs and has made that change to reflect the appropriate travel provisions. The new sections are 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 and Article 4525(a) which permits the Board to refuse to issue or renew a license. Article 4525(a) and (a-1) are affected by these sections. sec.213.12.Witness Fees and Expenses. A witness who is not a party to the proceeding and who is subpoenaed to appear at a deposition or hearing or to produce books, papers, or other objects, shall be entitled to receive reimbursement for expenses incurred in complying with the subpoena, either the minimum as set by the legislature in the APA or the State of Texas Travel Allowance Guide issued by the Comptroller of Public Accounts, whichever is greater. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809132 Erlene Fisher Katherine A. Thomas, MN, RN Executive Director Effective date: September 1, 1998 Proposal publication date: May 1, 1998 For further information, please call: (512) 305-6811 TITLE 25. HEALTH SERVICES PART I. Texas Department of Health CHAPTER 29.Purchased Health Services SUBCHAPTER L.General Administration 25 TAC sec.29.1126 On behalf of the State Medicaid Director, the Texas Department of Health (department) adopts an amendment to sec.29.1126, concerning in-home total parenteral hyperalimentation services provided to Medicaid recipients, without changes to the proposed text as published in the February 20, 1998, issue of the Texas Register (23 TexReg 1466), and therefore the section will not be republished. The amendment removes enteral feeding services as a covered service under the in-home total parenteral hyperalimentation services rule because these services are covered under home health. The amendment also removes reference to the reimbursement methodology for enteral feeding services. No comments were received on the proposal during the comment period. The amendment is adopted under the Human Resources Code, sec.32.021 and Government Code, sec.531.021, which provide the Health and Human Services Commission with the authority to adopt rules to administer the state's medical assistance program and is submitted by the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the purchased health services program and as authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 5, 1998. TRD-9809059 Susan K. Steeg General Counsel Texas Department of Health Effective date: June 25, 1998 Proposal publication date: February 20, 1998 For further information, please call: (512) 458-7236 TITLE 28. INSURANCE PART II. Texas Workers' Compensation Commission CHAPTER 133.General Medical Provisions SUBCHAPTER B.Required Reports 28 TAC sec.133.101 The Texas Workers' Compensation Commission (the Commission) adopts an amendment to sec.133.101, concerning the TWCC-61 "Initial Medical Report" without changes to the proposed text as published in the February 27, 1998, issue of the Texas Register (23 TexReg 1904). The amendment is adopted to reduce the number of forms and amount of paper that the Commission receives. As required by the Government Code, sec.2001.033(1), the Commission's reasoned justification for this rule is set out in this order which includes the preamble, which in turn includes the rule. The reasoned justification is contained in this preamble, and throughout this preamble, including how and why the Commission reached the conclusions it did, why the rule is appropriate, the factual, policy, legal bases for the rule, and a restatement of the factual basis for the rule, a summary of comments received from interested parties, names of those groups and associations who commented and whether they were for or against adoption of the rule, and the reasons why the Commission disagrees with some of the comments and proposals. Former sec.133.101 required the injured employee's treating doctor to complete an Initial Medical Report, form TWCC-61, for every occupational disease, and every accidental injury resulting in loss of more than one full day or more than one full shift from work, and submit this form to the insurance carrier, the Commission, and the injured employee or his/her representative within ten days of the injured employee's initial visit to the treating doctor. The amendment to sec.133.101 removes the requirement that the treating doctor submit the TWCC-61 form to the Commission unless it is requested. In the past, the TWCC-61 forms have been used by the Commission to create injury record files. Creating injury records from the TWCC-61 report was initiated back in 1992 to meet certain service requirements related to mailing information packets to injured workers, and for employer injury occurrence information. However, these medical reports and the supporting rules were originally designed to provide data to supplement injury data previously provided by one or more of the primary reporters: employees, employers, and insurance carriers. As such, creating injury records from these medical reports was less efficient, and could result in conflicts with other more reliable data sources. The number of injury record files reflect injuries, but not necessarily injuries that require action or assistance from the Commission. Many of these injury record files created from the TWCC-61 are claims which do not result in any lost time and require medical services only. The Commission receives other notice forms (Employer's First Report, and the employee's Notice of Injury Claim) from which injury records can be created. These other sources have provided more reliable data than the TWCC-61. For instance, the doctor's TWCC-61 form often reports all treated work injuries, even when the employer is not covered under the workers' compensation system and the doctor's report is not always a true measure of actual time lost from work. The Legislature through The General Appropriations Act, 75th Legislature, Regular Session, Chapter 1452, sec.175, encouraged agencies to reduce the amount of information required to be submitted by its customers. This amendment is a means to accomplish this legislative goal and to focus efforts on injuries that are more likely to require assistance. The public benefit anticipated will include the reduction in paper work and paper handling by the Commission resulting in a savings to state government. Health care providers will realize an estimated savings of $96,200 (260,000 forms at $.37 - $.32 postage plus $.05 copying cost) as a result of not copying and mailing the TWCC-61 form to the Commission. Insurance carriers should experience no impact as a result of the rule amendment because they will continue to receive the TWCC-61 forms as in the past. Currently, the Commission sends information to injured employees based on the approximate 42,000 TWCC-61 forms for which injury record files are created. The injured employees for which the remaining 171,000 TWCC-61 forms were filed do not currently receive this information upon the filing of the TWCC-61. Text changes to the TWCC-61 form are planned which would add information regarding the procedure for obtaining assistance, information regarding rights and responsibilities, and information regarding the claim filing process. By including this information on the TWCC-61 form, the information will be available to approximately 171,000 more injured employees, because the rule still requires the heathcare provider to send the TWCC-61 to the employee. There will be no adverse impact on injured employee's receipt of information because those who received the information in the past will continue to receive it via the revised TWCC-61 form. No comments were received regarding adoption of this amendment. The amendment is adopted under the authority of the Texas Labor Code, sec.402.061, which authorizes the Commission to adopt rules necessary to administer the Act; and the Texas Labor Code, sec.408.025, which requires the Commission to adopt rules regarding the requirements for reports and records from health care providers; Texas Labor Code, sec.402.042(11), which authorizes the Executive Director to prescribe the form, manner, and procedure for transmission of information to the Commission; Texas Labor Code, sec.409.005(g), which requires the employer to provide a summary of the employee's rights and responsibilities; Texas Labor Code, sec.409.003, regarding an employee's claim for compensation; and the Texas Labor Code, sec.409.010, regarding information from the Commission to the employers. These statutory provisions authorize the Commission to adopt amendments to a rule such as sec.133.101 which addresses how and by whom information is to be transmitted to the Commission. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809119 Susan M. Cory General Counsel Texas Workers' Compensation Commission Effective date: June 28, 1998 Proposal publication date: February 27, 1998 For further information, please call: (512) 440-3972 SUBCHAPTER C.Second Opinions for Spinal Surgery 28 TAC sec.133.206 The Texas Workers' Compensation Commission (the Commission) adopts an amendment to sec.133.206, concerning the spinal surgery second opinion process with changes to the proposed text as published in the March 20, 1998, issue of the Texas Register (23 TexReg 2944). As required by the Government Code, sec.2001.033(1), the Commission's reasoned justification for this rule is set out in this order which includes the preamble, which in turn includes the rule. The reasoned justification is contained in this preamble, and throughout this preamble, including how and why the Commission reached the conclusions it did, why the rule is appropriate, the factual, policy, and legal bases for the rule, a restatement of the factual basis for the rule, a summary of comments received from interested parties, names of those groups and associations who commented and whether they were for or against adoption of the rule, and the reasons why the Commission disagrees with some of the comments and proposals. Changes made to the proposed rule are in response to public comment received in writing and at a public hearing held on April 9, 1998, and are described in the summary of comments and responses section of this preamble. Other changes were made for consistency or to correct typographical or grammatical errors. Changes from the rule as proposed are found in: subsection (a)(13) and (14); subsection (b)(1), (2), (3), and (4); subsection (d)(2); subsection (g)(3); subsection (i)(2); and subsection (m). Section 133.206 describes the process by which and the circumstances in which a carrier becomes liable for spinal surgery. The rule provides definitions of terms related to the spinal surgery second opinion process. In addition, the rule sets out the procedures for the second opinion process, establishes liability for costs of a second-opinion examination and sets the fee for second opinions. The rule also establishes qualifications for doctors who perform second opinions regarding spinal surgery and requires the Commission to maintain a list of surgeons whose current practice includes performing spinal surgery (the spinal surgeon list or the List) and to provide sublists of five of these spinal surgeons from which a second opinion doctor may be chosen by the injured employee and the carrier. A doctor must be on the spinal surgeon list to be reimbursed by the carrier for spinal surgery. The Commission's Medical Review division is given the authority to issue orders requiring timely submission of reports, records, or forms, to refer a doctor who fails to comply with the rule or an order for proceedings on possible administrative violation, and to refer a doctor to the Commissioners for possible removal from the spinal surgeon list. The rule sets out actions which may result in division action to suspend or Commission action to remove a doctor from the spinal surgeon list. In addition, the rule sets out the procedure for a doctor who has been suspended to request a hearing to contest the suspension. The spinal surgery second opinion process established in sec.133.206 has proven to be an effective tool in maintaining cost effective, quality care for spinal injuries requiring surgery. Three goals were established for sec.133.206: 1) to decrease the processing time frame for the second opinion process; 2) to ensure qualified objective second opinions; and 3) to monitor the system. Section 133.206 has proven effective in reducing the time required to determine carrier liability for spinal surgery. Commission data for 1997 shows that processing time for the second opinion process has been reduced from 59 days under the previous system to the current processing time of 35 days under sec.133.206. Section 133.206 has been effective in ensuring qualified objective second opinions. As of February 1998, the total number of second opinion doctors on the Commission's spinal surgeon list is 687. This number of available doctors has proven to be sufficient for the process to function efficiently. No time delays have been experienced in setting appointments and very few appointments require rescheduling due to doctor unavailability. Commission data for 1997 shows that carrier selected second opinion doctors concur with a recommendation for surgery approximately 73% of the time, while employee selected doctors concur with a recommendation for surgery approximately 64% of the time. These concurrence figures demonstrate that second opinions in this system are not decided based upon the interests of the person or entity selecting the second opinion doctor, but rather are true medical opinions. Additionally, concerns that doctors of a differing specialty might offer largely different opinions have been alleviated by a review of Commission data that shows doctors of like specialty concur 71% of the time, while doctors of non-like specialty concur 67% of the time. The process in sec.133.206 preserves objectivity in the selection of second opinion doctors by requiring that the Commission's Medical Review Division maintain the list of spinal surgeons who are allowed to perform second opinions and by providing for the random selection of the spinal surgeons on the sublist from which the injured employee and insurance carrier may choose a second opinion doctor. Commission data also shows that a wider group of doctors are providing second opinions under sec.133.206 than under the previous system. Under the previous system, 70 doctors performed the bulk of all second opinion examinations, whereas under sec.133.206 the 30 doctors who individually perform the greatest number of second opinions account for only 15% of all second opinion examinations. In 1997, out of a total of 7225 cases where second opinions were requested, 227 cases were disputed at the contested case hearing level and only 30 cases were appealed to the Appeals Panel. Carriers were liable for the costs of spinal surgery in approximately 91% of the cases. The specific criteria and timeframes in sec.133.206 have allowed for better tracking of the elements of the second opinion process and thus better monitoring of the effectiveness of the system. The adopted amendments to sec.133.206 are in response to complaints from participants in the second opinion process and issues which are frequently the subject of disputes. The amendment to subsection (a)(13) changes the definition of "concurrence." The previous definition of "concurrence" provides that agreement of a second opinion doctor that spinal surgery is needed is a concurrence regardless of whether the second opinion doctor agrees that the particular type of surgery recommended is needed. Previously, if a second opinion doctor agreed that surgery was needed, but was of the opinion that the recommended type of surgery was not likely to benefit the injured employee or even that the recommended type of surgery was contraindicated, the rule defined this as a concurring opinion. The carrier was held liable for the costs of the surgery, despite indications from second opinion doctor(s) that the recommended treatment was not likely to benefit the injured employee. An analysis of the Commission's medical billing database for the years 1991 through 1997 indicate that for Texas workers' compensation patients, the typical percentage of all spinal surgery cases which require subsequent spinal surgeries is 15% or less. An analysis of surgical recommendations from calendar year 1995 indicates that 287 injured employees had second opinions which agreed that surgery was needed, but differed with the type of spinal surgery recommended by the surgeon. The year 1995 was used for analysis because that is the first full year of data available which allows tracking of concurrences where there was disagreement regarding the type of spinal surgery recommended. The use of 1995 data also allowed a sufficient time period for monitoring the frequency of subsequent surgery for this group. Monitoring of these 287 injured employees through 1996 and 1997 reveals that approximately 31% (90 employees) had a subsequent surgical recommendation. Therefore, the percentage of Texas injured employees requiring subsequent spinal surgery in cases where the second opinion doctor recommended a different type of spinal surgery is far higher than that of the general Texas workers' compensation spinal surgery population. The amendment to subsection (a)(13) changes the definition of concurrence to require that the second opinion doctor agree with not only the need for spinal surgery, but also with the need for the particular type of spinal surgery recommended. The adopted definition of "concurrence" was changed from the definition as proposed, not in substance, but in wording, to provide a clearer understanding of the term. "Concurrence" is defined as the type of spinal surgery likely to improve the pathology present in the area of the spine affected by the compensable injury. Type of spinal surgery is defined, but not limited to, stabilizing procedures (e.g. fusions), decompressive procedures (e.g. laminectomies), exploration of the fusion/removal of hardware, and procedures related to spinal cord stimulators. Second opinion doctors are not expected to concur with exact CPT codes and the surgeon is not limited to performing surgery according to the exact CPT codes listed on the TWCC-63 form. A second opinion doctor evaluates the type of surgery recommended, agreeing or not agreeing, with the likelihood that the recommended type of surgery is likely to improve the injured employee's condition. If the second opinion doctor agrees with the type of spinal surgery recommended by the treating doctor or surgeon the carrier is deemed liable for the surgery. The surgeon must make medical decisions related to the surgery. These decisions include, but are not limited to, approach (e.g. posterior, anterior), levels of the spine to be operated upon, instrumentation, bone growth stimulators, etc. Surgical technique for the type of spinal surgery is determined by the surgeon. Monitoring of the spinal surgery second opinion process indicates that approximately 10% of second opinions result in nonconcurrence, 85% result in concurrence with the type of surgery recommended, and 5.0% result in concurrence with a different type of surgery than the surgery recommended. It is this third group of injured employees who experience an unusually high rate of subsequent surgical recommendation. Monitoring of this group since 1995, indicates that approximately 31% of these injured employees have subsequent surgical recommendations. Of the 85% of the injured employees who have a second opinion concurrence with the type of surgery recommended only 15% have a subsequent surgical recommendation. The amendment to the definition of concurrence aims to provide this specific group of claimants with a higher quality prospective review. By seeking agreement regarding the type of surgery likely to benefit the patients condition, the process may assist to decrease the number of patients who require multiple surgeries. The adopted changes to the definition of "nonconcurrence" in subsection (a)(14) provide consistency with the changes to subsection (a)(13). Subsection (b)(1) previously stated that the carrier was liable for the reasonable and necessary costs of spinal surgery related to the compensable injury in six situations. Subsection (b)(2) stated that the reasonable and necessary costs of spinal surgery include the services of the surgeons and ancillary providers during the hospital admission, and the hospital services. Subsection (b)(3), limited any medical dispute to the reasonableness of the fees charged, preventing a retrospective review of the medical necessity of any services provided in connection with the spinal surgery. This prohibition against retrospective review of services related to spinal surgery allowed unanticipated services to be provided without an avenue for challenge of the medical necessity of such services. For example, under the previous rule, while there may be agreement prospectively regarding the medical necessity of spinal surgery itself, the necessity of treatments and services other than the concurred upon spinal surgery was not reviewed prospectively and could not be reviewed retrospectively for medical necessity. Therefore a concurrence under the previous rule may have authorized procedures and services which were never reviewed or even contemplated by the concurring second opinion doctor. The second opinion process is a prospective review of the medical necessity of the spinal surgery, but is not a prospective review of the necessity of all treatments and services rendered in connection with the spinal surgery. This issue was complicated by the definition of "concurrence" in the previous rule which could impose carrier liability for a particular type of spinal surgery that the second opinion doctors did not agree was medically necessary. The adopted changes to subsection (b) address issues regarding the effect of a spinal surgery concurrence. Subsection (b)(1) as proposed has been changed to be consistent with the definition of "concurrence" as outlined in subsection (a)(13). Subsection (a)(13) reads, "a second opinion doctor's agreement that the surgeon's proposed type of spinal surgery is needed." Therefore subsection (b)(1) is amended for consistency to read "...the carrier is liable in any of the following situations for the reasonable and necessary costs of the proposed type of spinal surgery..." The change to subsection (a)(13) was made to provide clarification of the definition of concurrence. Subsection (b)(2) as proposed has been changed to state that medically necessary care related to the spinal surgery generally includes services of the surgeons and ancillary providers for the hospital admission and the hospital services. This language change allows for necessary procedures, which may be required based on their relationship to the spinal surgery, to be performed by ancillary providers or surgeons in offices or clinic settings prior to admission to the hospital and while in the hospital. The word "during" is changed to "for" to clarify that medically necessary care related to the spinal surgery is not limited to services delivered during the hospital admission. This provides for efficient delivery of health services required for the spinal surgery. The word "generally" has been added to clarify that the medically necessary care related to spinal surgery may vary depending upon the particular case. The proposed amendments to subsection (b)(3) are changed. This section addresses the opportunity to file for dispute resolution related to spinal surgery. Section 408.021 of the Workers' Compensation Act provides "that a claimant is entitled to all health care reasonably required by the nature of the injury as and when needed", therefore, the issue of medically necessary care related to spinal surgery appears to be a proper subject for retrospective review. On the other hand, because the spinal surgery second opinion process does provide a prospective review and approval of the need for spinal surgery, the spinal surgery itself is not an appropriate subject for retrospective review of medical necessity. Proposed subsection (b)(3) is amended to limit dispute resolution to the reasonableness of fees charged for the proposed and concurred upon type of spinal surgery. The change limits dispute resolution to fee disputes for the proposed and concurred upon type of spinal surgery while allowing retrospective utilization review of medical necessity for other services. The subsection further requires carrier bill review be performed in accordance with any applicable rules and regulations regarding utilization review. This will prevent frivolous bill denials while limiting the carrier liability to the reasonable and necessary care related to the type of spinal surgery. Language was also added as a warning to carriers who may unreasonably deny medically necessary benefits associated with the spinal surgery. The Division will monitor spinal surgery bill denials and may make referrals for administrative violations when it appears a carrier has unreasonably denied benefits. This further supports the third goal of the second opinion process to "monitor the system." The carriers will have the ability to monitor and question those services which do not appear to be related to the type of spinal surgery proposed. These changes were made to provide a balance to the system and offer a fair process to both carriers and providers. In addition, the changes to subsection (b)(3) are adopted to assist in the implementation of Article 21.58A of the Insurance Code where applicable to workers' compensation cases. The amendment to subsection (b)(3) clarifies that the issue of medical necessity for the proposed type of spinal surgery is determined prospectively and cannot be denied retrospectively, while allowing for the retrospective review of procedures and services which were not reviewed prospectively. Appropriate medical treatment remains within the purview of the surgeon. If treatments or surgeries are performed which are additional to or different from those agreed upon through the second opinion process, the surgeon is responsible for documenting the medical necessity of such services. Subsection (b)(4) has been added to the rule to limit the validity of a determination of carrier liability to a one year period. To proceed with spinal surgery based upon a determination of carrier liability which is more than one year old a reevaluation of the injured employee's condition will be required. Subsection (b)(4) as proposed has been changed to require an addendum report rather than a new TWCC-63 form in the case of a final Commission order over one year old. If carrier liability resulted from a carrier waiver of a second opinion or failure to request a second opinion within the allowed timeframe, a new TWCC-63 form would be required to be submitted and the process reinitiated. If a determination of carrier liability was the result of concurrence by both second opinion doctors, failure to timely appeal in a case where there is only one concurrence, concurrence by only one second opinion doctor, or if carrier liability resulted from a final Commission order, a resubmission of the original TWCC-63 form for an addendum report to determine continued medical necessity for the proposed spinal surgery will be required. Previously there was no provision in the rule for expiration of a concurrence for spinal surgery. Because the condition of the injured employee will most likely have changed in this amount of time and medical technology and information may have advanced, the year-old second opinion(s) may no longer be relevant and should be reevaluated before surgery proceeds. This change ensures the integrity of the spinal surgery second opinion process and ensures that the injured employee receives the most appropriate treatment. In addition, under the previous rule, insurance carriers were not allowed to dispute medical necessity of a spinal surgery even if the second opinion concurrence took place years before. The amendment requires a reassessment of the medical necessity of a spinal surgery if the second opinion concurrence or insurance carrier waiver is over one year old. In a small number of cases (approximately 100 per year), the injured employee requests change of treating doctor, from the treating doctor who recommended surgery to a doctor who provided a second opinion in their case. These injured employees request this change of treating doctor because they want the second opinion doctor rather than their treating doctor to perform their spinal surgery. Subsection (d) of the rule sets out the minimum qualifications a doctor rendering a second opinion must meet. These qualifications include that a second opinion doctor cannot be scheduled to perform or assist with the recommended surgery and cannot be economically associated or share office space with the treating doctor or surgeon. Subsection (d) as proposed would have allowed an injured employee to change treating doctors to a doctor who provided a second opinion in the employee's case if they obtained another second opinion on the recommended spinal surgery. The proposed amendment has been changed. Public comment indicates that there was concern regarding the possible increased costs and time associated with additional second opinions. To address these concerns and to maintain the integrity of the second opinion process the proposed language is changed to read, "The doctor rendering the second opinion cannot for a period of 12 months after rendering a second opinion become the injured employee's treating doctor or surgeon for the medical condition on which the doctor rendered a second opinion." This provision prevents the appearance that the second opinion doctors opinion may have been influenced by potential financial gain. If second opinion doctor's have the potential to become the surgeon, there may be, in some cases the appearance that the second opinion doctor concurred with surgery only because he or she believed there was a potential to become the surgeon. Similar to the Commission's rule regarding designated doctors, this new language prevents the second opinion doctor from participating directly with the patients care for one year. Previously, subsection (g)(3) stated that the carrier was responsible for notifying the injured employee, treating doctor and surgeon of the scheduled second opinion appointment. Additionally, the rule indicated that failure to set an appointment within 30 days resulted in a waiver of a second opinion by the insurance carrier. However, the rule did not address the ramifications of setting an appointment within 30 days but failing to notify the involved persons. Failure to notify the injured employee, treating doctor, and the surgeon of the scheduled second opinion examination may result in a delay of treatment to the injured employee. Additionally, there are added costs incurred by the carrier. These costs include the $100 no-show fee which is owed to the doctor with whom the appointment was set and not kept. The carrier is required to schedule another appointment and provide notification to the injured employee, treating doctor and surgeon. Commission data indicates that 15 to 20 percent of the spinal surgery recommendations taking more than 50 days to process are delayed because of rescheduling of the carrier second opinion examination due to failure to notify one or more participants. In some situations, the injured employee received notification and arrived at the appointment, however, the second opinion doctor would not see the patient because there were no accompanying medical records or diagnostic films due to the lack of notification to the surgeon by the insurance carrier. Many surgeons and injured employees report that the only notification they received regarding the scheduling of a second opinion examination was the notification sent by the Commission. Some participants also report the notification arriving the day of the scheduled examination or even a day or two after the scheduled examination. Case managers in the Commission's spinal surgery section estimate that delays due to failure to notify involved persons of a scheduled second opinion examination lengthens the second opinion process by three to five weeks. The adopted amendment to subsection (g)(3) adds failure to timely notify the injured employee, the surgeon, and the treating doctor of the scheduled second opinion examination as grounds for deeming carrier waiver of a second opinion. To ensure the treating doctor and surgeon have reasonable time to send records and films to the second opinion doctor, and to provide the injured employee with sufficient time to make arrangements to attend the examination, amended subsection (g)(3) requires that notification of the appointment be sent by the carrier at least 10 calendar days prior to the date of the second opinion examination. Subsection (g)(3) as proposed provided that notice of the appointment be sent at least 10 working days prior to the day of the second opinion examination. Based on commenter's suggestions the notification time period has been changed from 10 working days to ten calendar days. Staff believes that 10 calendar days will provide adequate time to inform the injured employee, treating doctor and surgeon of the second opinion exam, without causing undue delay to second opinions. Monitoring of second opinion examination time frames indicates that approximately 3.5% of second opinion examinations scheduled by the carrier are scheduled within the first 10 days, while approximately 12% of examinations scheduled by the carrier occur later than 30 days from the acknowledgement date. This time frame will allow sufficient time to submit medical records and films to the second opinion doctor and also for the injured employee to receive information of the scheduled evaluation and make the necessary transportation and other personal arrangements required to attend the appointment. The Commission considers five days a reasonable time for receipt of mail sent through regular delivery. Therefore, the change to 10 calendar days will keep to a shorter period the amount of time the injured employee is required to wait for a second opinion appointment. Subsection (i)(2) as proposed has been changed. The language has been changed in this section for consistency with the language used throughout the rule. In subsection (i)(2) the term "procedure" has been removed and replaced with "type of spinal surgery." The adopted amendment to subsection (m) deletes the July 1, 1998, expiration date of the rule. The expiration date has been deleted because the rule has proven to be an effective tool in maintaining cost effective, quality care for spinal surgeries and should continue in effect. The adopted amendments to sec.133.206 are effective for all requests for spinal surgery second opinions filed with the Commission on or after the effective date of the amendments. Requests filed with the Commission before the effective date of the amendment are subject to the rule in effect at the time the request was filed with the Commission. The effective date is changed from June 1, 1998 to July 1, 1998, to allow staff adequate time to inform system participants of the rule change and to implement internal measures that will be necessary. The rule reference in subsection (c)(5) has been changed in accordance with the renumbering of subsection (d). Adopted changes to subsections (d)(6), (i)(2), (i)(3), and (i)(4) provide consistency with other language in the rule and consistency with the amended definition of "concurrence." Adopted changes to subsection (d)(4) (previously (d)(3)) preserve the meaning of that section and make it consistent with the addition of new subsection (d)(2). Comments generally opposing the proposed amendment to sec.133.206 were received from the following groups: Robert L. Allred, M.D., Killeen, Tx; Raymond J. Bagg, M.D., Texas Orthopaedic Association, Austin, Tx; David Bauer, M.D., Dallas, Tx; Howard L. Berg, M.D., Amarillo, Tx; Michael S. Valastro, M.D., Round Rock, Tx; Leslie Bishop, M.D., Round Rock, Tx; Craig Callewart, M.D., Dallas, Tx; Emil Cerillo, Southwest Spine & Orthopedic Specialists; Huntly Chapman, M.D., Dallas, Tx; Jack W. Chitwood, M.D., Abilene, Tx; Wayne Clark, Patient Advocates of Texas; Stephen A. Cord, M.D., Lubbock, Tx; Howard B. Cotler, M.D., Texas Spine Society, Houston, Tx; J. Stuart Crutchfield, M.D., Tyler, Tx; Guy O. Danielson, M.D., Tyler, Tx; M. David Dennis, M.D., San Antonio, Tx; Randall F. Dryer, M..D., Austin, Tx; David W. Duffner, M.D., Tyler, Tx; Michael A. Earle, M.D., San Antonio, Tx; James E. Elbaor, M.D., Arlington, Tx; Conrad A. Fischer, M.D., Nassau Bay, Tx; James A. Ghadially, M.D., Houston, Tx; Kevin Gill, M.D., Dallas, Tx; David O. Gillory, III, M.D., Round Rock, Tx; Charles R. Gordon, M.D., Tyler, Tx; Richard D. Guyer, M.D., Plano, Tx; Floyd Hardimon, D.O., Houston, Tx; Robert J. Henderson, M.D., Dallas, Tx; David F. Henges, M.D., Austin, Tx; Nick Huestis, American Insurance Association; Andrew P. Kant, M.D., Houston, Tx; Charles W. Kennedy, Jr., M.D., Texas Orthopaedic Association, Corpus Christi, Tx; Jeffrey A. Kozak, M.D., Houston, Tx; Thomas I. Lowry, M.D., Austin, Tx; Carol Lusk, NeuroCare Network, Tyler, Tx; Donald Mackenzie, M.D., Plano, Tx; Craig L. McDonald, M.D., Angleton, Tx; Allen Meril, M.D., Texas Medical Association, Texas Orthopedic Association, Garland, Tx; Robert A. Peinert Jr., M.D., Lubbock, Tx; Michael E. Putney, M.D., Round Rock, Tx; Ralph Rashbaum, M.D.; Spencer Rowland, M.D. , San Antonio, Tx; Albert E. Sanders, M.D., San Antonio, Tx ; Eric H. Scheffey, M.D., Houston, Tx; Mark W. Scioli, M.D., Lubbock, Tx; Gini Seely, T-Bones; Raul Sepulveda, M.D., Houston, Tx; James W. Simmons, M.D., San Antonio, Tx; Gene R. Smith, M.D., San Antonio, Tx; John Paul Theo, M.D., Lubbock, Tx; Michael S. Valastro, M.D., Round Rock, Tx; Robert Viere, M.D., Dallas, Tx; Steve C. Wilson, M.D., Round Rock, Tx; Jack E. Zigler, M.D., Plano, Tx . Comments generally in support of the proposed amendment to sec.133.206 were received from the following groups: Pat Crawford, TABCC Worker's Compensation Task Force, Austin, Tx; Jaelene Fayhee, Texas Workers' Compensation Insurance Fund, Austin, Tx; Richard H. Jackson, M.D., Texas Association of Neurological Surgeons, Dallas, Tx; Jack W. Latson, Flahive, Ogden & Latson, Austin, Tx; Nicholas Tsourmas, M.D., Texas Workers' Compensation Insurance Fund, Texas Association of School Boards Comments neither generally in support or generally opposed to the proposed amendment to sec.133.206 but who made suggestions for change were received from the following groups: Phil H. Berry, Jr., M.D., Texas Medical Association, Austin, Tx; Judy French, Dallas Neurosurgical Associates, P.A., Dallas, Tx Summaries of the comments and Commission responses are as follows. CONCURRENCE. COMMENT: Many commenters opposed the change in the definition of concurrence. Some commenters questioned whether a second opinion doctor was more knowledgeable about the injured worker's condition and more qualified as to the procedures or as familiar with modern techniques; stays up to date with spine related information; or likes to treat spine patients. Commenter further questioned who had the best interest of the patient at heart the treating doctor or the second opinion doctor who has not been involved in the patient's case throughout the process. The commenter stated that the presumption would be that both doctors have similar training and experience. A commenter stated that the insurance company is putting more trust in an individual who doesn't have the patient's best interests at heart. Commenters stated that it was implied that the second opinion doctor selected randomly from a "sublist of five" possesses certain qualifications and training not possessed by the "treating doctor" that would enable him to make recommendations that would be more "beneficial" to the patient. Commenter stated that to a conservative treater who does not have the same qualifications and who does not perform the recommended surgery nor have the experience or training to do so , the recommendation may represent unnecessary surgery and that is a difference of opinion. RESPONSE: The Commission disagrees. The second opinion doctor list and the spinal surgeon list are the same list. Second opinion exams are performed by the same group of doctors who are recommending surgery. In creating sublists, the division takes into account the recommended surgical procedures and the second opinion doctor's level of expertise. The spinal surgeons are surveyed every two years for the purpose of determining level of expertise and active surgical practice. There is no evidence that the insurance company is putting trust in doctors who do not have the patients best interest at heart. Monitoring indicates that in fact the carrier selected second opinion doctor concurs with surgery at a slightly higher rate than the employee selected doctor. COMMENT: Many commenters opposed the change in the definition of concurrence because it requires the second opinion doctor to concur with the procedure recommended by the treating doctor/surgeon rather than only concurring with the recommendation for surgery. Some commenters stated that surgeons have different skills and some are good at and comfortable with one technique, whereas others may be good at or more comfortable performing another, but both obtain good results so a disagreement as to the procedure to be used should not be a nonconcurrence. Some commenters felt the current definition for concurrence worked well because it left the choice of procedure with the treating doctor/surgeon and so the rule should not be changed. A commenter stated that the only question for the Commission is whether the surgery is reasonable and necessary. Another commenter felt that the role of the second opinion doctor should be simply to determine that there is or is not pathology present for which a surgical procedure is indicated and that because the second opinion doctor is not treating the patient it should not be that doctor's position to comment on the surgical procedure chosen by the treating doctor/surgeon. Some commenters felt that the proposed definition of concurrence interfered with the treating doctor's independent medical decision-making ability and professional judgment, Another commenter felt the change made the rule overly restrictive and will likely cause the system to break down because surgeons rarely agree on the finer points of surgical treatment for a particular problem. Commenters stated that the proposed change emphasized the particulars of the spinal surgery rather than the diagnosis and that there is no consensus in the literature or in the medical profession on surgical procedures. This will make reaching concurrence difficult particularly between doctors who studied in different areas such as orthopedic versus neurosurgeons. A commenter felt that the proposed change did not recognize that medicine is an art and does not allow for different philosophical approaches to the practice of medicine. Some commenters interpreted the proposed change as requiring agreement by the second opinion surgeon that surgery is needed and agreement with the surgical technique recommended or the result would be a non-concurrence. Examples given of areas where surgeons have different opinions on the same problem included anterior versus posterior approach, fusion or no fusion, instrumentation or no instrumentation and timing of surgery after conservative care. A commenter suggested that the second opinion doctor concur with whether surgery is warranted and also give an opinion if the patient would benefit from a different procedure than that recommended and let the patient make the decision with the treating doctor/surgeon as to the type of procedure to be done. Another commenter stated the recommended surgical procedure is usually determined by what works best for a particular surgeon based on education and experience rather than findings reported in medical literature. A commenter felt that the variability of surgical techniques used was good and should not be limited. Some commenters felt the change-in the definition of concurrence made the second opinion surgeon's decision incontestable and gave the second opinion doctor's opinion preferential status. Some commenters felt that the change in the definition of concurrence would limit the surgeon's medical judgment and be a disservice to or even present a harm to the injured worker who needs treatment. Commenter pointed out that leaving the rule as it presently exists serves to preserve the patient's right to quality medical care without the imposition of undue burden. RESPONSE: The Commission disagrees. The proposed change to the definition of concurrence should have a beneficial impact for injured workers. System monitoring indicates that a subset of injured workers experience a reoperation rate at double the rate experienced by the general spinal surgery workers compensation population in Texas. Concerns that doctors of a differing specialty might offer largely different opinions have been alleviated by a review of Commission data that shows doctors of like specialty concur 71% of the time, while doctors of non-like specialty concur 67% of the time. In the cases where the second opinion agrees with surgery but disagrees with the type of surgical procedure, (about 5.0% of the spinal surgery population), there is a 31% rate for recommendations of further surgery. The general spinal surgery workers compensation population has a 15% rate for further surgery. The change to the definition should not impact the injured worker population outside of the 5.0% who currently experience the higher rate of recommendations for further surgery. For this particular 5.0%, it is expected that fewer subsequent surgical procedures will be necessary. However, there seems to be misunderstanding about the meaning of the change of definition for concurrence. Therefore, the definition has been amended, not in substance, but in wording, to clarify the meaning. The definition of concurrence will read, "A second opinion doctor's agreement that the surgeon's proposed type of surgery is needed. Need is assessed by determining if there are any pathologies in the area of the spine for which surgery is proposed (i.e. cervical, thoracic, lumbar, or adjacent levels of different areas of the spine) that are likely to improve as a result of the surgical intervention. Types of surgeries include but are not limited to: stabilizing procedures (e.g. fusions); decompressive procedures (e.g. laminectomies); exploration of fusion/removal of hardware procedures; and procedures related to spinal cord stimulators." This definition should help to clear up any confusion regarding what constitutes a concurrence. The technique for a particular surgical procedure is a medical decision to be made by the surgeon. For example, if a surgeon recommends a fusion, and both second opinion doctors disagree that a fusion would be likely to benefit the patient, the carrier would not be liable. However, if the surgeon recommends a fusion and one or both second opinion doctors agree that a fusion would be likely to benefit the patient, then the carrier would be deemed liable. In the second case, decisions, for example, about approach (anterior, posterior, etc), levels, instrumentation, bone growth stimulators etc. are medical decisions to made by the surgeon. Although the second opinion doctor is not treating the patient, his/her expertise can be utilized to more fully evaluate the patient's condition, in support of the evaluation and recommendations made by the surgeon, and assist in determining, based on pathologies identified, the type of procedure which will most likely benefit the injured employee. The second opinion doctor's opinion is not given preference. The rule allows for the opinion of the surgeon and two second opinion doctors. The recommendations of the three doctors are evaluated and the preponderance of weight upon which the decision is made relative to carrier liability is based on the concurring opinions of two of the three spinal surgeons. COMMENT: Commenter stated that there has never been a definition of what constitutes unnecessary surgery. The commenter further stated that there is no way to legislate what is unnecessary and what is necessary. RESPONSE: The Commission disagrees. The Act and rule defines the conditions under which the carrier is liable for spinal surgery. The rule in particular defines concurrence and nonconcurrence. The definition of concurrence defines the circumstances in which the carrier will become liable for spinal surgery. The rule identifies agreement of the second opinion doctor and the surgeon on what type surgery is "needed". It further clarifies that "need" is assessed by determining whether pathologies exist in the area of the spine for which surgery is proposed that are likely to improve as a result of the surgical intervention recommended by the surgeon COMMENT :Commenter suggested the real reason for the change was "that it will provide specific identification of the procedure(s) the insurance carrier is liable for as a result of the concurrence". Some commenters expressed concern that the insurance company would see this as an opportunity to confuse the issue and make it even more difficult to obtain an agreement on a second opinion. The differences of opinion as to level or specific surgical procedure do not affect the carrier's liability and so liability should be determined on whether an agreement on the need for surgery is agreed upon and not the specific type of procedure. RESPONSE: The Commission disagrees. The proposed change to concurrence was made in an attempt to decrease the 31% rate for subsequent surgeries for the 5.0% of patients who are currently affected. Individual CPT codes do not need to be concurred upon prospectively in order to obtain a concurrence. Carriers are responsible for paying or disputing medical bills within 45 days of receipt. If a surgeon has a bill denied they may avail themselves to medical dispute resolution. COMMENT: Many commenters expressed concern about the inherent time delays which would result from the proposed rule change. Commenters went on to say that the delay would also increase costs by prolonging disability, causing needless repetition of third and fourth opinions, increasing the appeal process and adding to the already insurmountable paper work load placed on the doctor. Some commenters stated that the proposed changes would not be of benefit to the injured workers and would in fact lengthen the time it takes to return a patient to work. A Commenter stated that the intent of the change appears to be to try to ensure that the worker receives the appropriate surgery and that the number of subsequent surgeries are reduced. In making this change, the proposed rule has the potential to increase the number of disputes and lengthen the time required to get a final decision on whether surgery is to be performed and the exact procedure to be performed. Another commenter felt that there is already too much delay in the system by carriers and that the proposed change will increase the delay. RESPONSE: The Commission disagrees. The amendments proposed should not, in general produce time delays. For a subset of injured employees, those 5.0% who experience a higher than average rate for proposal of subsequent surgery, there may in a few cases be an increased amount of time to determine carrier liability because of the need to obtain the employee selected second opinion. The disadvantage of additional time should be off-set by fewer patients ultimately requiring multiple surgeries. This is beneficial to injured workers and will not lengthen time to return to work compared to time caused by the need for more than one surgery. This should not produce an overall increase in cost to the system. While some patients may receive two second opinions, the cost savings associated with avoiding repeat surgeries, will off-set any up-front costs of the additional second opinion. COMMENT: Commenter expressed concern that the proposed changes would impair the injured employees access to "all health care reasonably required by the nature of the injury as and when needed". RESPONSE: The Commission disagrees. The injured worker is entitled to all healthcare reasonably required by the nature of the injury as and when needed. The second opinion process, as mandated by statute, determines carrier liability for spinal surgery by identifying those cases where the second opinion(s) agree with the need for surgery. Need is further defined in sec.133.206 as agreement that the type of spinal surgery recommended by the surgeon is likely to benefit the patient. COMMENT: Commenter pointed out that second opinions are of significant importance and should not be questioned and that a decision that a patient requires surgery and would benefit from the surgery is reinforced by the second surgical opinion. RESPONSE: The Commission agrees that the second opinion doctor's decision that a patient would benefit from surgery reinforces the surgeons recommendation for surgery. COMMENT: Commenter pointed out that if there is a subsequent change to the definition of concurrence then this rule would require more documentation to support the medical necessity for making a change regarding the type of spinal surgery which, if experience is to be a guide, will only result in further denial, disputes, increased paperwork and continuing confrontation. Response: The Commission disagrees. If there was a change in the type of surgical procedure at the time of surgery, for example, a laminectomy recommended, but a fusion performed, additional documentation would be necessary to support the medical necessity of the change. This is appropriate given the statutory requirement for a second opinion process. Carriers must abide by any rules and regulations relating to utilization review. COMMENT: Some commenters were in favor of the proposed rule changes. A commenter stated that if a disagreement (non-concurrence) is noted in a report by the second opinion surgeon, it would be considered substantive, not semantic. A commenter pointed out that the change ensures that a second opinion concurrence results in treatment most likely beneficial to the injured employee and will provide specific identification of the procedure the insurance carrier is liable for as a result of the concurrence. The revision may also have the positive result of reducing the occurrence of subsequent spinal surgery procedures. The commenter further stated that required concurrence more importantly affords the injured employee the assurance that the best possible treatment will be provided. A commenter stated the previous rule failed to recognize that many of the surgical disputes arise, not over the question of surgical necessity, but over the procedure that should be performed. The current rule permits workers' compensation patients to be the subjects of experimental and often times controversial surgeries. Statistics recited in the preamble demonstrate that these surgeries (where there was no concurrence with the procedure to be performed) fail twice as often as surgeries in which the concurring physician concurs with the procedure recommended as well as the need for surgery. A commenter agreed and stated he firmly believes we need the proposed changes and is very interested in seeing this concurrence for several reasons one being the timeliness issue. A commenter stated full support of the proposed amendment to subsection (a)(13) which would change the definition of concurrence. The commenter further recommended that subsection (i)(3) be amended to require an itemized second opinion report indicating concurrence with the following: (1) the pathological condition that warrants surgery, (2) that the recommended surgery will correct or improve the identified pathology, (3) the specific levels of the spine to be operated on, and (4) the exact procedures to be performed. RESPONSE: The Commission agrees that some patients are experiencing a high rate of reoperation and that the change in definition for concurrence should help to avoid those surgeries that are not likely to help the patient and in fact are more likely to result in further surgery. Commission disagrees that specific itemized CPT codes or the exact procedure should be agreed upon prospectively. The type of surgical procedure should be concurred upon, i.e. laminectomy, fusion, etc, but the medical decisions regarding approach, number of levels, instrumentation, etc. should be made by the surgeon at the time of the operation. COMMENT: Commenter stated this is not good medicine. There is case after case where neurosurgeons would disagree with a fusion only to have patients undergo discectomies and later require a fusion, further taxing the system and worst of all, not providing the patient with the appropriate index procedure in the first place. RESPONSE: The Commission disagrees. Monitoring of the number of concurrences indicates that there is no significant difference in recommendations between orthopedic and neurosurgeons, despite the procedure recommended, the type of surgeon making the recommendation, whether the second opinion doctor was selected by the carrier or the injured worker or the percentage of times a carrier selects a neurosurgeon. COMMENT: Commenter questioned whether the rule as proposed will significantly ameliorate things and make an imperfect world perfect and further questioned the facts in place to substantiate this. RESPONSE: The Commission disagrees that this is the standard for whether or not a rule should be adopted. The rule is intended to ensure quality medical care to injured employees. The facts to support the amendments are recited throughout this order. COMMENT: Some commenters disagreed with and questioned the statistics presented to support the proposed rule change to subsection (a) (13). A commenter stated there is virtually no evidence presented to indicate what necessitated the additional surgeries; nor what the additional surgeries were comprised of; nor whether or not these additional operations would have been avoided had there been concurrence with the actual surgical procedure. The commenter further stated the authors of the preamble provided virtually no meaningful information that supports a conclusion that the rate of revision surgery would be further reduced by requiring complete agreement across the board by the reviewing physicians and the treating physician as to exactly what surgical procedure was to be carried out. A commenter stated that the statistics indicated that when second opinion doctors differed as to what to do with patients, 91% of the time they chose to do less surgery. The commenter further stated that due to the higher operation rate, the proposal was made to "make surgery match" The commenter stated that the statistics proved that going with the opinion of the surgeon 69% of those people did not undergo reoperation and in conclusion the majority of the decisions made were right. A commenter inquired as to what the Commission's definition was of "less complex procedure" and asked for a ranking of a list of spinal surgery procedures by complexity. This comment was supported by the Commission statistics stating 90% of 287 patients who had a second opinion recommendation for a different procedure had a second opinion recommendation for a less complex procedure than recommended by the surgeon. RESPONSE: The Commission disagrees. The majority of difference in opinion between second opinion doctors and surgeons in this group, was a difference of opinion regarding the use of a fusion to treat the patient. In ninety percent of the cases, in which there was a difference of opinion, the second opinion doctor did not recommend a fusion, however, a fusion was performed. Generally, the second operation that was recommended was for the diagnosis "failed fusion." While a certain percentage of medical procedures may not result in the optimum outcome, for this group of spinal surgery candidates the reoperation rate is double the rate for general spinal surgery population. This is meaningful information. This suggests that if this population could share the same concurring opinions prospectively, then they could enjoy the same results as the general spinal surgery workers' compensation population. A ranking of spinal surgeries by complexity is not relevant to the determination of carrier liability. Concurrence is not an agreement with the specific CPT Codes recommended, but rather is agreement that the recommended type of surgery is likely to benefit the injured employee. When a second opinion doctor disagrees on the type of spinal surgery which would best benefit the injured employee a second or subsequent surgery was needed 31% of the time. Because this rate of subsequent surgery is twice as high as the subsequent surgery rate for the rest of the workers' compensation population, it is not acceptable. The rule amendment addresses this high rate of subsequent surgery. COMMENT: A commenter pointed out that the Commission offered figures to demonstrate that the opinions are not biased in favor of the claimant and the commenter felt this conclusion was false because the two categories being compared were not comparable. The commenter further stated that the carrier pays for the surgeries in 73% of the cases in which their doctor concurs and in 17.28% of the cases in which their doctor did not concur. RESPONSE: The Commission disagrees. The claimant receives the same sublist as the carrier from which to choose a second opinion doctor. Monitoring of the system indicates that carriers and claimants select orthopedic and neurosurgeons at about the same rate. Monitoring also indicates that both doctor types are about equally likely to concur or nonconcur with surgery. Monitoring does not find any indication of bias toward the claimant or the carrier. The carrier is liable for surgeries when prospectively it is determined that the type of surgery recommended by the surgeon is medically necessary. The commenter's numbers do not reflect results as indicated by Commission monitoring. COMMENT: A commenter stated until such time as it is proven there is not reason to conclude there is a problem with the current system therefore there is no scientifically documented problem there is virtually no credible reason for changing what constitutes a concurrence. RESPONSE: The Commission disagrees. Data was presented to substantiate the need for the proposed amendment to the rule. The change intends to improve a process which is working well yet with changes that will improve performance and continue to meet the goals established. COMMENT: A commenter pointed out that the fundamental problem with the present rule is the provision allowing the claimant to select two of the three doctors and the presumption that the surgery is necessary if only two doctors established the presumption, and if the claimant picks a second doctor, there is no independent evaluation of surgical necessity. The Commission is urged to resolve this fundamental unfairness and dispense with the right of the employee to choose a second opinion. RESPONSE: The Commission disagrees. The Commission generates the sublists of second opinion doctors from which the carrier and the claimant each chooses the doctor they wish to perform the second opinion. These doctors are independent of the surgeon. Their role is to determine whether the proposed type of surgery will likely benefit the patient. In many instances the injured employee never sees their choice of second opinion doctor as they accept the recommendation of the carrier selected doctor. COMMENT: A commenter stated the narrative must indicate any differences of opinion in the type of procedure or level proposed for surgery. The commenter pointed out that this may have eliminated the opportunity for professional dialogue and exchange of information so necessary to the medical profession. Some commenters agreed with the proposed changes and stated it would open up a seriously needed line of communication between the two doctors, treating and second opinion. A commenter stated that even though medicine is not an exact science and one physician may have a different opinion and if this opinion disagrees useful information for treatment of the patient can still be obtained. The commenter recommended to keep subsection (i)(3) as it is in the current Rule that requires the narrative to discuss why there is a difference of opinion and why there is a differences in recommendations. RESPONSE: The Commission disagrees that subsection (i)(3) should remain unchanged. Language to subsection (i)(3) regarding the requirements of the second opinion narrative report was amended, because the difference of opinion between second opinion doctors and surgeons, in some cases, will affect carrier liability. However, removal of this language does not prevent the second opinion doctor from providing their opinion regarding surgical technique, nor does it prevent communication between the two doctors regarding any opinions. COMMENT: A commenter questioned subsection (i)(2) stating "The second opinion doctor shall CALL the designated phone number....The commenter suggested written documentation, if desired, should also be acceptable. Response: The Commission agrees. The purpose of the phone call to the Spineline is to inform the TWCC case manager of the second opinion. If the opinion is a nonconcurrence, the case manager takes additional steps to ensure the employee selected second opinion appointment is scheduled. The division accepts fax responses as well as phone responses to the Spineline. Fax response should be sent to (512)440-3501 within 48 hours of the examination. CARRIER LIABILITY. COMMENT: Commenters opposed the ability of retrospective review by carriers for procedures or services not prospectively agreed upon. A commenter stated differing preoperative and postoperative protocols regarding tests, consults, medicines, rehabilitation, etc. will and should be, at the discretion of the treating physician and surgeon based on his experience and his skills. Preoperative evaluation or treatment of a condition in order to prepare the patient for the surgical procedure are services which would be disputed by carriers. Commenter pointed out that there was a change of language in sec.133.206 (b)(2) from necessary cost to medically necessary care related to spinal surgery. RESPONSE: The Commission agrees in part. The second opinion doctor is required to opine on the need for the type of spinal surgery that is recommended. Concurrence therefore does not review the medical necessity of all services that could be billed. The carrier is not liable for medical treatment and services that are not medically necessary. Subsection (b)(3) has been amended to read, "If a carrier becomes liable for spinal surgery pursuant to the provisions of this section, disputes regarding the proposed and concurred upon type of spinal surgery shall be limited to a dispute as to the reasonableness of the fees charged. A carrier may challenge whether medical care related to the spinal surgery is medically necessary. A carrier's bill review for medical necessity must be performed in accordance with any applicable rules and regulations regarding utilization review. In dispute resolution proceedings regarding medical necessity, carriers are required to provide documentation indicating compliance with applicable rules and regulations regarding utilization review. A carrier shall not unreasonably deny benefits which are medically necessary. The division may recommend administrative violations proceedings when a carrier unreasonably denies benefits." The purpose of this language is to clarify that carriers may retrospectively review spinal surgery bills for medical necessity. Such reviews, however, must be performed in accordance with any applicable rules and regulations regarding utilization review. Medical Review will, in its dispute resolution process, require documentation from the carrier indicating full compliance with such rules and regulations. Furthermore, abuses by the carrier, relating to prompt payment of spinal surgery bills and bills related to the spinal surgery, may be acted upon, either by the Commission or through referral to the department of insurance. This language is intended to allow for appropriate questioning of medical necessity, while ensuring that inappropriate bill denial by carriers is addressed in accordance with the regulations that apply to bill payment and utilization review. The revised language should protect the rights of the carrier in terms of liability while assuring spinal surgeons and ancillary providers of prompt payment for services. The language in sec.133.206 was changed from "reasonable and necessary costs of spinal surgery" to " medically necessary care related to the spinal surgery." The Act states that "a claimant is entitled to all health care reasonably required by the nature of the injury as and when needed." Subsection (b)(1) states the carrier is liable for the reasonable and necessary costs of the proposed spinal surgery and the medically necessary care related to the spinal surgery. Medical decision making is at the discretion of doctors and physicians. Reimbursement, however, is owed only for those services that are medically necessary. The appropriate medical treatment remains within the purview of the surgeon. The language in subsection (b)(2) is changed to clarify what medically necessary care includes. The intent is to ensure optimum care for all workers covered under the Act. This change brings a balance into the process and a clear definition of the scope of liability of the carrier, as is stated in the preamble COMMENT: A commenter stated that there was agreement on the main points, the selection of patient, distraction, and the fusion of the anterior column. The only disagreement is on the basis of how to obtain that fusion. In this circumstance, under the new rules the carrier could say this is a non- concurrence and they are not liable. RESPONSE: The Commission disagrees. In the situation described, where the only disagreement between doctors is the method of performing a fusion, under the amended rule this would continue to be a concurrence. If one or both second opinion doctors agree that fusion is necessary to treat the pathology in the spine, decisions regarding the number of levels, location of levels, approach, instrumentation etc., are left to the discretion of the treating surgeon. The carrier cannot argue that this type of agreement is a nonconcurrence. Carriers may request a Contested Case hearing for those cases where there is one nonconcurrence. To clarify that it is the type of procedure rather than how the procedure is performed that must be agreed upon, the definition of "concurrence" in subsection (a)(13) has been changed. The definition of concurrence has been clarified to state: "Concurrence - A second opinion doctor's agreement that the surgeon's proposed type of spinal surgery is needed. Need is assessed by determining if there are any pathologies in the area of the spine for which surgery is proposed (i.e., cervical, thoracic, lumbar, or adjacent levels of different areas of the spine) that are likely to improve as a result of the surgical intervention. Types of surgical procedures include but are not limited to: stabilizing procedures (e.g., fusions); decompressive procedures (e.g., laminectomy); exploration of fusion/removal of hardware; and procedures related to spinal cord stimulators." COMMENT: Commenters expressed concern regarding non-receipt or timely receipt of payment for services rendered or procedures conducted which were not prospectively agreed upon. A commenter stated ancillary providers have to "fight to get their bills paid by carriers" and with the proposed rule changes these providers will have even greater difficulty obtaining payment and may stop doing workers compensation all together. RESPONSE: The Commission disagrees that the proposed amendment affects timeliness of payment. The rules which address the time in which bills must be paid are not affected by this amendment and remain the same. Carriers are required to pay or deny bills within 45 days of receipt. Instances where payment rules are violated should be referred to Compliance and Practices Division for possible administrative actions. Bills that are denied and remain in dispute maybe submitted to Medical Review, Medical Dispute Resolution section for resolution of the dispute. The amendment does allow retrospective review of services which may not be medically necessary care related to the spinal surgery. Previously while there may have been agreement prospectively regarding the necessity of the spinal surgery itself, the necessity of treatments and services other than the spinal surgery was not reviewed prospectively and could not be reviewed retrospectively, leaving the carrier without an avenue to dispute a treatment or service which may or may not be medically necessary care related to the spinal surgery procedure. The clarification of what is considered medically necessary service related to spinal surgery should provide guidance regarding the extent of the carrier's liability. Subsection (b)(3) has been amended to point out that carriers should not unreasonably deny benefits related to spinal surgery. COMMENT: Commenters believed that under the rule as proposed it would be virtually impossible for the surgeon to "change his or her mind" during the actual procedure based on findings at the time of surgery which could not have been anticipated or were not identifiable before surgery. Identification, at the time of surgery, of a lesser procedure than was prospectively agreed upon would result in non-payment should the lesser surgery, in the best interest of the patient, be performed. Many commenters disagreed with allowing the carrier an opportunity to retrospectively review procedures or services not prospectively agreed upon in the situation where a decision to change procedure is made during surgery. A commenter stated a procedure recommended and concurred upon by the second opinion doctor which requires change at the time of surgery should not be denied for payment because this may be misconstrued as a rule violation by the carrier. Other commenters expressed concern that physicians would feel limited to perform the procedures concurred upon even if it became apparent during surgery that the procedure or level needed to be changed in the best interest of the injured worker. Commenters also felt that carrier liability for only the procedure concurred upon would eventually affect the judgment of the doctor and the services received the injured worker. Another commenter felt that the changes to subsection (b) will increase disputes and lengthen the process. RESPONSE: The Commission disagrees. Appropriate medical treatment remains the responsibility of the surgeon. At the time of surgery a medical condition may be identified which was not anticipated prior to the surgical intervention. Under the proposed amendments, the carrier may pay medical bills for "lesser" surgeries. The carrier can also pay the medical bills for the "greater" surgeries. The surgeon should make the best medical decisions possible at the time of surgery, provide appropriate documentation to the carrier that indicates the medical rationale for the difference in procedure types and avail themselves of medical dispute resolution should they believe the bill has been inappropriately denied. The Commission agrees that at the time of surgery a medical condition may be identified which was not anticipated prior to the surgical intervention. This does not prohibit the surgeon from performing the procedure which is in the best interest of the patient. Documentation which defines the medical necessity for the change and supports the decision made is required. A change in the type of surgery performed should be an exception and occur infrequently. Doctors will continue to base their judgments as to the best interest of the patient on medical information and not on the doctor's belief as to whether a procedure will or will not be disputed and/ or paid for by a carrier. COMMENT: Commenter felt the proposed change to the rule requiring the insurance company to be liable only for medically necessary care related to the procedure is "ridiculous." Some commenter stated the rule change would adversely impact the services received by and demonstrate irresponsibility toward the employee. RESPONSE: The Commission disagrees. The Workers Compensation Act states "that a claimant is entitled to all health care reasonably required by the nature of the injury as and when needed." Health care includes spinal surgery and the necessary preoperative and postoperative assessments and treatments necessary to ensure a successful operation. Health care should be reasonable and necessary and related to the spinal surgery procedure. The amendment to the rule is in accordance with this statutory provision. It is unclear what the commenter is suggesting. The care which is provided should be in direct correlation to the work- related injury sustained by the injured employee and the necessary medical attention required to treat that medical condition. The proposed amendments should have no impact on patient care. However, the proposed language to subsection (b)(3) has been amended with the statement, "If a carrier becomes liable for spinal surgery pursuant to the provisions of this section, disputes regarding the proposed and concurred upon type of spinal surgery shall be limited to a dispute as to the reasonableness of the fees charged. A carrier may challenge whether medical care related to the spinal surgery is medically necessary. A carrier's bill review for medical necessity must be performed in accordance with any applicable rules and regulations regarding utilization review. In dispute resolution proceedings regarding medical necessity, carriers are required to provide documentation indicating compliance with applicable rules and regulations regarding utilization review. A carrier shall not unreasonably deny benefits which are medically necessary. The division may recommend administrative violations proceedings when a carrier unreasonably denies benefits." COMMENT: Commenters stated that the changes were biased in favor of the carrier and serve to limit their responsibility for reimbursement to the surgeon and hospital. Some commenter suggested the carrier will deny the hospital and surgeon due payment of medically indicated and necessary procedures. Another commenter felt that the only beneficiary of the proposed changes would be carriers who would have almost unlimited authority to dispute and refuse to pay for necessary medical care RESPONSE: The Commission disagrees. Carriers will be liable for services rendered which are medically necessary and related to the spinal surgery. The medically necessary care related to the spinal surgery includes the services of surgeons and ancillary providers for the hospital admission and the hospital services. The changes to the rule allow the carrier to dispute payment for services which are not medically necessary and related to the spinal surgery. This is reasonable because the prospective review provided for in the spinal surgery second opinion rule was not meant to impose unlimited liability upon the carrier. The amendments better define the liability established by the rule. The insurance carrier is responsible for providing reimbursement in accordance with the Medical Fee Guideline. Medical bills should be paid or denied within 45 days of receipt. Additionally, the carrier is responsible for payment for medically reasonable and necessary services to treat the injury sustained as a result of the compensable injury. The outcome should be quality medical care for the injured employee and a fair equitable system for providers and carriers. Subsection (b)(3) has been amended to require that a carrier's bill review for medical necessity be performed in accordance with applicable rules and regulations regarding utilization review. A warning has also been added that the Division may recommend administrative violation procedings when a carrier unreasonably denies benefits. COMMENT: Commenter agreed that the hospitalization and surgery itself are not subject to retrospective review but felt the rule, as proposed provides for no limitations on what the surgeon would construe as related to the spinal surgery. Commenter disagreed with the statement in the preamble that "... the spinal surgery itself together with the care related to the spinal surgery are not appropriate subjects for retrospective review" and felt it was not consistent with the statement that the process is not a prospective review of the necessity of all treatments and services rendered in connection with spinal surgery. Commenter expressed concern as the proposed rule does not provide for prospective or retrospective review of treatments and services rendered in connection with spinal surgery. The concurrence with the need for a specific type of surgery does not automatically reflect medically necessary services which could be billed. RESPONSE: The Commission agrees in part. Subsection (b)(1) has been amended to state that the liability of the carrier includes the reasonable and necessary costs of the proposed type of spinal surgery procedure and the medically necessary care related to the spinal surgery. Commission agrees that concurrence with the need for a type of surgery does not automatically reflect the medical necessity of services which might have been provided and billed. Subsection (b)(3) has been amended to read "A carrier's bill review for medical necessity must be performed in accordance with any applicable rules and regulations regarding utilization review. In dispute resolution proceedings regarding medical necessity, carriers are required to provide documentation indicating compliance with applicable rules and regulations regarding utilization review. A carrier shall not unreasonably deny benefits related to spinal surgery. The division may recommend administrative violation proceedings when a carrier unreasonably denies benefits. When a carrier is determined to be liable for the costs of a spinal surgery procedure there are ancillary services which may be provided with the surgery. To establish parameters for challenge of the medical necessity and/or nonrelatedness of services to a spinal surgery, subsection (b)(3) has been amended to allow retrospective review of such services. A carrier shall not unreasonably deny benefits associated with spinal surgery. The division may recommend administrative violation proceedings when a carrier unreasonably denies benefits. This language does not prohibit a carrier from reasonably disputing the medical necessity of medical services associated with the surgery. COMMENT: Commenter stated that bills are not easily reimbursed as allowed under medical fee guidelines. Commenter further stated that few adjusters or others have the knowledge and/or experience to properly process complicated spine surgery submissions. RESPONSE: The Commission disagrees. Medical Fee Guidelines address appropriate billing and reimbursement; Medical Fee Guidelines are not addressed in this rule. The rule amendments discuss necessary medical care and related services which are required at the time of surgery. Bills that are not reimbursed timely should be referred to the Division of Compliance and Practices for possible administrative violations. Bills that are not reimbursed at a payment satisfactory to the provider, can be submitted to the Division of Medical Review, Medical Dispute Resolution section, for resolution of the fee dispute. COMMENT: Commenter supported the proposed change to subsection (b) as it would add an important check and balance to the Commission's cost containment efforts. RESPONSE: The Commission agrees. Although this is an important feature, based on comments received the language in subsection (b)(3) has been changed to state "A carrier's bill review for medical necessity must be performed in accordance with any applicable rules and regulations regarding utilization review. In dispute resolution proceedings regarding medical necessity, carriers are required to provide documentation indicating compliance with applicable rules and regulations regarding utilization review. A carrier shall not unreasonably deny benefits which are medically necessary. The division may recommend administrative violation proceedings when a carrier unreasonably denies benefits." This allows a retrospective review of non-related medical services, care and equipment in regards to the spinal surgery. The carrier is responsible for the medically reasonable and necessary services to treat the compensable injury. While prospective review determines the medical necessity of the spinal surgery, retrospective utilization review, in accordance with any applicable rules that apply to utilization review, is an important element to medical cost containment. COMMENT: Some commenters stated that to allow the insurance company to challenge every order that a doctor makes is a violation of the Medical Practice Act and places the insurance company in the position of practicing medicine. A commenter stated carriers already have too much say regarding treatment of patients, and again the full liability burden rests upon the treating physician/spine surgeon. A commenter stated that to make medical decisions without ever having examined a patient is dangerous. RESPONSE: The Commission disagrees that the amended rule places the insurance carrier in the position of practicing medicine. Liability for spinal surgery is determined by the second opinion process, which uses the knowledge and expertise of qualified spinal surgeons. If one or both spinal surgeons agree with the type of spinal surgery, the carrier is deemed liable, unless otherwise ordered by the Commission. Bills reviewed and denied by the insurance carrier for medical necessity should be reviewed in accordance with any rules and laws that apply to utilization review. Language has been added to subsection (b)(3) to read, "A carrier shall not unreasonably deny benefits which are medically necessary. The division may recommend administrative violation proceedings when a carrier unreasonably denies benefits." This language serves as a fair warning to carriers that inappropriate denial of medical benefits may result in administrative actions against the carrier. COMMENT: Commenter agreed with the proposed changes as they offer carriers the additional certainty of the extent of their liability and the ability, through dispute resolution, to challenge treatments and services not prospectively reviewed. The commenter agreed that retrospective review of procedures and services which were not reviewed prospectively is logical. The commenter further stated that appropriate medical treatment remains within the purview of the surgeon and treatments performed in addition to or different than those proposed required documentation supporting the medical necessity of the services. RESPONSE: The Commission agrees. The Commission cautions the carrier to make prudent use of retrospective bill review, taking care to maintain compliance with applicable rules and regulations regarding utilization review. COMMENT: Commenter opposed the proposed changes to subsection (b) which allow retrospective review of procedures not prospectively reviewed because it will require additional documentation to support changes and that the time required to develop the documentation will increase the cost to treat injured employees. RESPONSE: The Commission disagrees. The documentation is standard medical documentation. Surgeons are required to obtain patient consent for proposed surgical procedures. Additionally, typically the surgeon documents the planned procedure in the patients medical chart. The operative report contains documentation regarding the patient pathology and the procedure performed, and should serve as adequate documentation of the need for the type of surgical procedure performed. Preparation of additional documentation should not be necessary. COMMENT: Commenter stated the problem is simple; anything not related to the specific spinal procedure prospectively reviewed will require additionally documented medical necessity, RESPONSE: The Commission agrees. Commission agrees that documentation may be required in some situations to justify the medical necessity of services rendered. However, it is not the specific procedure prospectively rendered, but rather, the type of spinal surgery recommended, i.e. fusion vs. laminectomy. COMMENT: Commenters stated the proposed changes would cause delays that will affect impairment income benefits to which the injured employee may be entitled. Commenter stated proposed changes would not allow for timely approval of the procedure. RESPONSE: The Commission disagrees. The proposed changes to the rule should not have any impact on impairment income benefits. No delay in second opinion processing time is anticipated. COMMENT: Some commenters expressed concern regarding the proposed changes to subsection (b)(1) and resulting denial or delay of payment due to differences in the CPT codes billed and CPT codes approved by the second opinion doctor. A commenter questioned whether additional documentation would be required to support the changed CPT codes. RESPONSE: The Commission disagrees. Second opinion doctors will not be approving specific CPT codes. The language in subsection (a)(13) regarding concurrence has been amended to clear up any confusion regarding that definition. The amended language reads, "A second opinion doctor's agreement that the surgeon's proposed type of spinal surgery is needed. Need is assessed by determining if there are any pathologies in the area of the spine for which surgery is proposed (i.e. cervical, thoracic, lumbar, or adjacent levels of different area of the spine) that are likely to improve as a result of the surgical intervention. Types of surgical procedures include but are not limited to: stabilizing procedures (e.g. fusions); decompressive procedures (e.g. laminectomy); exploration of fusion/removal of hardware procedures; and procedures related to spinal cord stimulators." Therefore, for example, in those cases when fusion is recommended, the second opinion doctor's agreement that a fusion is likely to improve the patient condition, is considered a concurrence. Surgical decisions regarding approach, levels, instrumentation etc. are the medical decisions of the surgeon who performs the surgery. COMMENT: Commenters expressed concern about the possibility of CPT coding error or the ability of carriers to arbitrarily and capriciously decide which CPT codes to reimburse. RESPONSE: The Commission disagrees. The language in subsection (a)(13) regarding concurrence has been amended to clear up any confusion regarding the definition of concurrence. The amended language reads, "A second opinion doctor's agreement that the surgeon's proposed type of spinal surgery is needed." A particular type of surgery, for example spinal fusion, is represented by many different CPT codes. The second opinion doctor's agreement that the type of surgical procedure is necessary is a concurrence. The second opinion doctor concurs or fails to concur with the proposed type of surgery, not with the CPT code. Carriers who retrospectively review medical bills for medical necessity, must abide by any rules and laws pertaining to such review. Carriers who unreasonably deny benefits associated with spinal surgery may be referred to the Division of Compliance and Practice for possible administrative violations. COMMENT: Commenter recommended that TWCC rely on Spine Treatment Guidelines and determine carrier liability based on the guidelines. RESPONSE: The Commission disagrees. The spine treatment guideline does not contain provisions for second opinion examinations. Section 408.023 of the Act requires a second opinion process to determine carrier liability for spinal surgery. COMMENT: Commenter recommended that carrier disputes be referred to an independent state audit company for review and objective evaluation. RESPONSE: The Commission disagrees. Carrier dispute is a utilization review issue not addressed by this rule. The Act allows for independent adjudication of disputes through the Commission's Medical Dispute Resolution process. COMMENT: Commenter felt that carriers should be liable for treatment of new problems discovered at the time of surgery, but suggested tracking such instances to determine if a pattern of finding new problems during surgery exists for certain doctors. RESPONSE: The Commission agrees in part. "New problems" is not defined by the commenter. The Commission agrees that a tracking system is a good recommendation and the division will consider implementation of such a tracking system. Liability is related to the compensable injury and the spinal surgery second opinion process. It would not be prudent to include a blanket statement regarding liability for "new problems" found at surgery. COMMENT: Commenters expressed concern that by continually delaying the ability of the patient to get to surgery, necessary instrumentation, equipment, hospital facility, trained personnel and so on will finally drop off the treatment wagon and make it impossible for the patient to get the needed care. Another commenter felt the proposed changes adversely impact the quality of care by reducing the physicians treating options. RESPONSE: The Commission disagrees. Treatment will not be continually delayed by the amendments to the rule. Medical review will be monitoring the number of spinal surgeons participating in the system and the number of spinal surgeries recommended. If there were to be a significant number of doctors who dropped out of the system, the division would make the Commissioners aware and would make recommendations to resolve that problem. Currently, the monitoring indicates increasing numbers of spinal surgeons who are participating as relates to spinal surgery. The definition of "concurrence" has been amended to require that the second opinion doctor agree with the type of spinal surgery. The surgeon retains the right and the obligation to make the medical decisions related to the surgery, including approach, levels of the spine to be operated upon, instrumentation and other associated medical decisions. COMMENT: Commenter agrees that medical problems that are not going to jeopardize the patient during surgery and that are routine certainly should not be a part of the spinal surgery and should not be treated that way even if continued treatment of these medical problems for an extended period postoperatively is necessary, that also should not be covered after a reasonable period of time. RESPONSE: Commission agrees in part. The carrier is liable for the reasonable and necessary medical care required to treat the compensable injury. The carrier is not responsible for unreasonable care, unnecessary care or care that is not related to compensable injury. All reasonable and necessary medical care for spinal surgery includes evaluation and medical management of conditions required to ensure the safety of the patient's condition during the spinal surgery and peri-operative period. COMMENT: Another commenter objected to the carrier having the opportunity to retrospectively review preoperative procedures and services necessary to stabilize a patient for surgery such as a bleeding ulcer developed while in the hospital. RESPONSE: The Commission disagrees. Subsection (b)(3) has been amended to read: "If a carrier becomes liable for spinal surgery pursuant to the provisions of this section, disputes regarding the proposed and concurred upon type of spinal surgery shall be limited to a dispute as to the reasonableness of the fees charged. A carrier may challenge whether medical care related to the spinal surgery is medically necessary. A carrier's bill review for medical necessity must be performed in accordance with any applicable rules and regulations regarding utilization review. In dispute resolution proceedings regarding medical necessity, carriers are required to provide documentation indicating compliance with applicable rules and regulations regarding utilization review. A carrier shall not unreasonably deny benefits which are medically necessary. The division may recommend administrative violations proceedings when a carrier unreasonably denies benefits." COMMENT: A commenter felt that the addition of carrier opportunity to retrospectively review preoperative procedures will result in internists refusing to do preoperative clearance because they know payment for their services can be denied. RESPONSE: The Commission disagrees. Subsection (b)(3) states that a carrier shall not unreasonably deny benefits associated with spinal surgery. The division may recommend administrative violation proceedings when a carrier exhibits a pattern of inappropriate denying of benefits." Denied payments may be referred to Medical Dispute Resolution for resolution of dispute. Retrospective review of medical necessity is an important element of medical cost containment. Carriers however must ensure the applicable rules and regulations relating to utilization review are followed. NECESSARY MEDICAL CARE. COMMENT: A number of commenters stated that preoperative work ups were necessary to identify pre-existing conditions which may not be directly related to, yet may have a significant impact on the surgical procedure. These workups should be conducted by either internal medicine or family practice physicians utilizing tests and protocols based on their knowledge and skills. These work-ups are expected to stabilize unstable medical conditions and cost effectively prevent complications from occurring. Commenters expressed concern that internal medicine and family practice physicians would not be reimbursed for services unless carriers assume full responsibility for the patients condition which will result in the assurance of payment to these allied health personnel. Without this assurance injured employees may be denied reasonable, necessary medical care. RESPONSE: The Commission disagrees. A claimant is entitled to all health care reasonably required by the nature of the injury as and when needed. The reasonable and necessary costs of spinal surgery include the services of surgeons and ancillary providers for hospital admission. Commission disagrees that a family practice or internal medicine doctor would not receive payment for services rendered to identify a medical condition or stabilize an existing condition which may have an impact on the surgery. The claimant is entitled to all health care reasonably required to manage the surgery. Health care includes evaluation and management of conditions such as diabetes, hypertension, bleeding disorders, and heart and lung disease if and when disease processes such as these will or are likely to impact the patients well being as it relates to the proposed spinal surgery. Retrospectively, medical necessity is supported by documenting the medical justification for rendering these services. The Commission disagrees that this will result in a denial of reasonably necessary medical care. However, to avoid any confusion language in subsection (b)(2) is changed to read "the medically necessary care related to spinal surgery includes the services of the surgeons and ancillary providers for the hospital admission and the hospital services. The word "during" is changed to "for" to clarify that pre-operative work-ups conducted prior to the hospitalization are included in the definition of services that may be required. COMMENT: Some commenters disagreed with the amendment as proposed because they felt it will allow the carrier to challenge medical necessity of decisions which will demonstrate irresponsibility towards the injured employee. It will also create even more unnecessary discussion, debate, delay, denials and disputes from carriers who refuse to pay for necessary medical care. A commenter stated that in theory it was reasonable to allow the carrier to be responsible for the decisions of reasonable and necessary costs and medically necessary care yet in reality would create lengthy delays for denial or refusal of payment. RESPONSE: The Commission disagrees. The adopted amendment is intended to ensure prompt payment for services related to the spinal surgery and the surgery itself to support responsible care for the injured employee. An important "check and balance" in the system is in subsection (b)(3), which provides the ability of the insurance carrier to review medical services for medical necessity. Without retrospective bill review, costs for spinal surgery could include medically unnecessary services. The surgeon is responsible for documenting the medical necessity of services which may not usually be considered part of a spinal surgery procedure. While the carrier is responsible for prompt payment of medical bills, it is only responsible for payment of services that are medically necessary. It is through retrospective bill review that carriers evaluate those services where medical necessity may be in question. COMMENT: Commenter pointed out that TWCC advisory 97-01 states that if an injured worker has a condition that impacts surgery or treatment services necessary to stabilize the patient are reimbursable. Commenter felt that the proposed amendment would negate this advisory. Another commenter stated that health care coverage of the injured employee may have been dropped as a result of the inability to return to work following the work related injury. Based on this fact carriers should be liable for treatment to stabilize pre-existing conditions to prepare the injured employee for surgery. Another commenter stated that these complicating conditions are unforeseen and unplanned yet the purveyor of care will wait interminable amounts of time to get paid due to the allowance of a carrier retrospective review of conditions not agreed upon prospectively. A number of commenters were concerned about spinal surgery patients with pre- existing conditions which must be stabilized prior to surgery. RESPONSE: The Commission disagrees. The proposed amendments to the rule support TWCC advisory 97-01. If the insurance carrier is liable for the spinal surgery, then medical services necessary to evaluate and manage medical conditions that might impact the welfare of the patient undergoing spinal surgery are reimbursable. In addition, routine pe-operative testing is medically necessary care related to the spinal surgery for which the carrier is liable. Subsection (b)(2) has been changed to state that "medically necessary care related to the spinal surgery generally includes services of the surgeons and ancillary providers for the hospital admission and hospital services." This change allows necessary procedures to be performed in the most convenient and cost-effective setting, whether in the hospital or an office or clinic. Medical Dispute Resolution offers the provider an avenue to obtain payment for services denied or disputed. Section 133.300 (a)-(h) identify payment requirements under the rule and options for providers in the event timely payment has not been submitted following the submission of all completed forms to the carrier. The proposed amendments to the rule do support TWCC advisory 97-01. If the insurance carrier was liable for the spinal surgery, then medical services necessary to evaluate and manage medical conditions that might impact the welfare of the patient undergoing spinal surgery are reimbursable. COMMENT: Commenter expressed concern about having the treating doctor produce an addendum TWCC-63 giving their opinions as to the medically necessary care related to procedures after a concurrence has been provided by two second opinion doctors or if the carrier fails to make a timely appeal when there is only one concurrence. RESPONSE: The Commission disagrees. An addendum is the method used to reopen a spinal surgery file when the injured employee presents to their treating doctor/surgeon with a change of medical condition, after receiving two nonconcurring surgical opinions. (12 MONTH LIMIT ON LIABILITY DETERMINATIONS.) COMMENT: A commenter stated that it would be reasonable to limit the carrier liability to one year from the date of the determination. The commenter also agreed that a new TWCC- 63 process should be initiated to restart the process following the lapse of the one year period. RESPONSE: The Commission agrees. The addition of this language limits the validity of a determination of a carrier to a one year period. To proceed with spinal surgery based on a determination of carrier liability which is more than one year old a reevaluation of the injured employees condition will be required. COMMENT: A few commenters pointed out that allowing the insurance company the right to demand the surgical approval process start all over again, simply because they did not timely file, review, approve, disapprove, or waive their rights to a 2nd opinion would delay treatment for the patient. RESPONSE: The Commission disagrees. Subsection (b)(4) only addresses situations where a determination of carrier liability (except in the case of an emergency) is over one year old and surgery has not taken place. A second opinion examination is an examination of the injured workers' current condition and the evaluation of proposed surgical treatment. Twelve months after the second opinion evaluation, the second opinion concurrence with the proposed surgical intervention is no longer current. At this point, a second opinion doctor may recommend against surgery, in favor, for example, of multi-disciplinary tertiary treatment programs. Patients this far from the date of injury may require interventions such as those described in the spine treatment guideline's tertiary care treatment tables. A reevaluation is prudent at this point. The condition of the injured worker will most likely have changed over 12 months and medical technology and information may have advanced. The year-old second opinion(s) may no longer be relevant and should be reevaluated before surgery proceeds. Paragraph (4)(A) and (B) identify the method by which submission will occur based on the date of determination and status of carrier liability. COMMENT: A commenter stated that there was some confusion on carrier liability determination resulting in submission of a new TWCC-63. RESPONSE: The Commission agrees. A clerical error was identified in subsection (b)(4)(A) and (B) and has been corrected. Subsection (b) (1)(F) regarding carrier liability and final and nonappealable Commission order to pay has been deleted from subsection (b)(4)(A) and added to subsection (b)(4)(B). In those situations where the carrier became liable by Commission order, and the employee did not undergo surgery within 12 months, a new TWCC-63 will not be required, but rather, the employee will return to the doctors who initially performed the second opinion exams. In cases where one or both second opinion doctors are unavailable, the carrier or employee will select a new second opinion doctor from the original sublist. COMMENT: The commenter stated that beginning the second opinion process over again after a 12 month time period has elapsed would allow the carrier the ability to challenge the initial recommendations which would produce a never- ending cycle, and should not be allowed. RESPONSE: The Commission disagrees. The vast majority of injured employees have the recommended surgery performed as soon as possible after carrier liability is determined. Some injured employees elect not to pursue surgery even though it is recommended by at least two spinal surgeons. In these very few cases, after one year has elapsed from the determination of carrier liability, an evaluation of the current condition and proposed surgery are prudent. Patients who are more than one year from their date of injury may require treatment other than surgery, such as those treatments listed in the tertiary treatment tables of the spine treatment guidelines. Because so few patients are involved, the Commission disagrees that reevaluation after one year would create a "never-ending cycle." It is in the best interest of the injured worker to have their condition re- evaluated. Within 12 months many changes may have occurred with the injured worker's condition, and the surgery initially recommended may no longer be appropriate. The process would follow the procedure in place for addendums or submission of new TWCC-63's and result in a processing time of approximately 35 days to determine carrier liability. CHANGE OF TREATING DOCTOR. COMMENT: Some commenters opposed the proposed changes to subsection (d) that would allow the injured worker to change their treating doctors because they felt it would increase bureaucracy, delay the surgery, increase the amount of time lost from work, create frustration for the treating surgeon, and increase the cost by requiring another second opinion which would not prove to be beneficial for the patient. A commenter felt that allowing the injured worker to choose his/her surgeon was a positive but that the downside of the change outweighs the upside and therefore subsection (d) should not be changed. RESPONSE: The Commission agrees. Language to subsection (d) has been amended to read "The doctor rendering the second opinion cannot for a period of 12 months after rendering a second opinion become the injured employee's treating doctor or surgeon for the medical condition on which the doctor rendered a second opinion." The new language will help to avoid additional second opinion exams. At the same time the integrity of the second opinion evaluation process will remain intact. When applicable, injured workers' will still be able to change to a surgeon with whom they feel more comfortable. However, the new surgeon may not be one of the second opinion doctors. COMMENT: Commenter disagreed with the proposed changes to subsection (d) stating that no data exists to support the implication that second opinion doctors possess the same qualities, experience, familiarity with modern technique, and training, that would make their recommendations more beneficial to the patient. The commenter questioned the implication that the second opinion doctor will loose the ability to be objective if or when chosen to become the treating doctor/surgeon. RESPONSE: The Commission disagrees. The list of second opinion doctors and the list of spinal surgeons are the same list. The surgeon who is recommending surgery for an injured worker today may be the second opinion doctor rendering an opinion for another injured worker tomorrow. The same qualifying survey is completed by all doctors performing spinal surgery and/or second opinions, and all are required to document the same professional qualifications. The sublists of second opinion doctors are created with the second opinion surgeon's expertise and experience considered in conjunction with the type of surgical procedure proposed to be performed. Additionally, subsection (d)(6) allows Medical Review to release a second opinion doctor from their obligation to render a second opinion if the doctor states that he or she is unable to render a second opinion because the doctor is not qualified due to unique or complex pathology or because the doctor's expertise excludes the involved body area. The Commission agrees that the judgment of the second opinion doctor, in most cases, would not be affected by the potential to become the surgeon for the injured employee. However to avoid any appearance of conflict of interest this section has been amended under subsection (d)(2) to state " The doctor rendering the second opinion cannot for a period of 12 months after rendering a second opinion become the injured employee's treating doctor or surgeon for the medical condition on which the doctor rendered a second opinion." COMMENT: Commenter expressed concern regarding the change to subsection (d) and the availability of second opinion doctors in mid-size to small size cities and suggested that when the patient changes treating doctor's that a new sublist be compiled which does not contain surgeons associated with either the initial recommending surgeon's practice or the new surgeon's practice. RESPONSE: The Commission disagrees. The proposed language to subsection (d)(2) will address this concern. COMMENT: Commenter expressed confusion about the current interpretation of subsection (d)(1)(C) and (D). The commenter's understanding is that currently the second opinion doctor cannot perform surgery nor can the doctor have a financial association with the treating doctor or surgeon. The commenter questioned this interpretation and the effects on the proposed rule changes. RESPONSE: The Commission disagrees. In response to concerns raised about the process and language proposal, the adopted language to subsection (d)(2) is made. The amended language change to this section will clarify that the second opinion doctor cannot perform the surgery for a period of at least one year after rendering the second opinion. This language change will help to maintain the integrity and objectivity of the second opinion process by removing any " appearance" of impropriety on the part of a second opinion doctor. COMMENT: Some commenters supported the proposed changes to subsection (d)(2) stating that it would eliminate conflict of interest by the new surgeon or the appearance of conflict. Commenters also felt the change would maintain the integrity of the process by allowing the injured worker to choose the doctor they prefer to perform the surgery. A commenter felt that the nullification of the second opinion doctors opinion, after they become the treating doctor, neutralizes self-interest on the part of the second opinion surgeon. RESPONSE: The Commission disagrees. Based on other commenters concerns the language in subsection (d)(2) will be changed as follows, "The doctor rendering the second opinion cannot for a period of 12 months after rendering a second opinion become the injured employee's treating doctor or surgeon for the medical condition on which the doctor rendered a second opinion." This language change will continue to address the concerns raised by the commenter, namely maintaining objective second opinions and ensuring the integrity of the second opinion process, while addressing the concerns of other commenters about timeliness and cost of second opinions. COMMENT: Commenter strongly opposed the change of second opinion doctor becoming treating doctor because "when the second opinion doctor is unsuccessful in his attempts to steal the patient do you think he will approve the surgery and subsequent the post-op care?" A commenter stated that the change of sec.133.206 (d) regarding the qualification of a second opinion surgeon would destroy the objectivity of the process. A commenter expressed concern that the relationship between treating doctor and second opinion doctor becomes competitive and the process stand no chance of being objective. The commenter pointed out that there were unscrupulous adjusters and nurses who "threaten" patients with removal of their benefits if they don't change doctors. RESPONSE: The Commission agrees. The second opinion doctor should not become the treating doctor. The purpose of the rule is to maintain a fair and objective process for determining the need for spinal surgery. The vast majority of physicians comply with professional ethical standards. Issues concerning breaches of medical ethics are properly addressed through the State Board of Medical Examiners. The choice of surgeon is the employee's, and not to be dictated by the insurance carrier. Insurance carrier representatives, including adjusters or nurses, who "threaten" or harass injured employees should, as always, be reported to the Commission for possible administrative action. Subsection (d)(2) has been amended, as discussed in other responses, to address the concerns about objectivity, timeliness and cost. The injured employee can still change surgeons, however, the new surgeon cannot be either one of the second opinion doctors. COMMENT: Commenter stated that the surgeon has formed a close doctor patient relationship with the injured employee and therefore has the interests of the injured employee at heart. This is significantly different from a doctor who has not developed this relationship but seen the injured worker on a one time basis as the result of an appointment scheduled from a random selection from a sublist of five second opinion doctors. RESPONSE: The Commission disagrees that because a second opinion doctor may see an injured employee only once, the doctor has other than the injured employee's interest at heart. While the injured employee and the surgeon may have formed a close doctor patient relationship, the division has no indication that second opinion doctors do not have the patients interest at heart when determining the need for surgery. COMMENT: Commenter questioned why the opinion of the second opinion doctor, which was presumed correct in the first place, becomes null and void when the second opinion doctor becomes the treating doctor/surgeon. RESPONSE: The Commission agrees that the concept contained in new subsection (d)(2) as proposed should be changed. Based on other commenters concerns about objectivity, timeliness and cost of second opinions, the rule language has been changed. Therefore, in the case questioned here, the original second opinion doctor's opinion will stand. COMMENT: Commenter expressed concern that the Preamble to the rule reflected negatively on the integrity and ethics of the treating spine surgeon. RESPONSE: The Commission disagrees. The Commission recognizes that the vast majority of physicians practice in an ethical manner. As a general policy, however, it is appropriate to avoid any process which could be construed as causing a conflict of interest. It is the perceived appearance of a conflict of interest that can damage the integrity of the process. COMMENT: Commenter suggested that the initial TWCC-63 be used to show any changes recommended by the new treating doctor as an amendment to the initial 63 instead of issuing a new one. RESPONSE: The Commission disagrees. The changes to subsection (d)(2) as it was proposed will mean that neither a new or amended TWCC-63 form will be required. The second opinion doctor will not be able to perform the surgery for at least 12 months after rendering a second opinion and therefore, no new or altered forms will be required as the original TWCC-63 and original second opinions will stand. CARRIER NOTIFICATION. COMMENT: Some commenters pointed out that subsection (g)(3), which requires notification by the carrier to the injured employee, treating doctor, surgeon, and second opinion doctors at least 10 working days before an appointment, would potentially delay the care and treatment of the patient by lengthening the process. Commenters contended that to lengthen the process would not be beneficial to the injured employee, carrier or employer. A commenter recommended that acknowledgment of the actual notice to the claimant serve as adequate notification which would avoid a carrier waiver. A commenter stated that less than ten days notice and unavailability of records and examination would result in the cancellation of an appointment resulting in a waiver. Another commenter recommended that no change be made to subsection (g)(3) because the proposed change could result in delay of care to injured workers. RESPONSE: The Commission disagrees. Ten working days, in some months could significantly increase the time to obtain a second opinion and to determine carrier liability for the proposed spinal surgery. Language to subsection (g)(3) has been amended to read "Notification of the examination must be sent at least ten calendar days prior to the appointment." The Commission believes that 10 calendar days will provide adequate time to inform the injured employee, treating doctor and surgeon of the second opinion exam, without causing undue delay to second opinions. Documentation from the carrier, upon request by the division, that notice was sent and assumably received by the claimant will avoid carrier waiver. Monitoring of second opinion examination time frames indicates that approximately 3.5% of second opinion examinations scheduled by the carrier are scheduled within the first 10 days, while approximately 12% of examinations scheduled by the carrier occur later than 30 days. The most frequent complaint received regarding the 12% scheduled outside of 30 days, is that one or more of the parties were not timely informed of the second opinion examination. The purpose of requiring the carrier to notify all parties at least ten days before the appointment is to ensure the injured employee is able to arrange transportation and other personal matters, and to allow the surgeon time to provide the medical records and films to the second opinion doctor. The requirement for the carrier's second opinion appointment to be scheduled within 30 days of the TWCC-63 acknowledgment date has not been changed. The purpose of this amendment is to expedite the second opinion process by decreasing the number of carrier second opinion appointments which require rescheduling because either the injured employee was not notified of the appointment or the surgeon's office was not notified in time for them to provide records to the second opinion doctor. COMMENT: Commenter suggested that the last sentence of subsection (g)(3) be deleted and the following be added: "notice to the employee will be timely if sufficient for the employee to actually attend the scheduled appointment. Notice to the surgeon will be timely if the surgeon has sufficient records to perform the exam and prepare a report without rescheduling the appointment. A ten-day notice will be presumed to be timely." RESPONSE: The Commission disagrees. With this amendment, the insurance carrier will be deemed to be liable for the costs of spinal surgery if the notification requirements are not met. In fairness to the carriers, the requirements need to be clearly delineated, so that there is no uncertainty as to what is acceptable notification. COMMENT: Commenter stated that the success of the second opinion process was due to the spinal surgeons accommodation of the carrier requests for timely appointments. This has reduced the processing time from 200 days to 35 days. This commenter felt that the proposed change will shift the responsibility from the carrier to the surgeon and the injured employee and expressed concern that the change could serve to remove doctors from the approved list for not making timely appointments. RESPONSE: The Commission disagrees. Spinal surgeons have, for the most part, have been very cooperative in making time available to conduct second opinion examinations. The effort and commitment in this regard are commendable. The largest improvements in the time frames for determining carrier liability, however, have been in the area of timely submission of second opinion narrative reports. In monitoring the timeliness of the second opinion process, a direct correlation is seen between improved time frames for narrative reports and the overall second opinion processing time. There are no changes proposed to the requirement to provide examinations within the 30 days time frame. While few appointments may occur a couple of days later than they do under the current rule, the balance for spinal surgeons and injured employees is that fewer appointments overall will be missed or broken. This should benefit not only the injured employee but also the second opinion doctor because there will be fewer rescheduled exams. This amendment does not reassign responsibilities. The Rule currently requires the carrier to notify the injured employee, surgeon and treating doctor in writing of the scheduled appointment. The Rule currently states that the surgeon shall assure that all medical records and films arrive at each second opinion doctor's office prior to the scheduled appointment. This amendment does not affect the responsibility of either party. COMMENT: Commenter suggested that the ten working days be changed to ten calendar days or less if the claimant is otherwise able to attend and the records are provided prior to the appointment because it would avoid unnecessary carrier waivers. Another commenter recommended that the rule allow an earlier appointment with the approval from the surgeon/treating doctor. RESPONSE: The Commission agrees that the ten working days should be changed to ten calendar days. The language in the amendment will be changed from "ten working days" to "ten calendar days." The Commission disagrees with the statement that an earlier appointment or an appointment in less than 10 days should be allowed even if the surgeon may agree. To maintain a level of consistency and provide adequate time for all surgeons and second opinion doctors to meet the requirements of the rule it is determined that the ten calendar days remain in effect. CARRIER WAIVER. COMMENT: Commenter felt that the deadline that was proposed for notification to the treating doctor, surgeon, injured employee and second opinion doctor was very restrictive and may defeat the purpose of obtaining an appointment with the doctor of their choice. Commenter therefore recommended the ten working days be changed to ten calendar days. RESPONSE: The Commission agrees. Language in subsection (g)(3) has been changed from ten working days to ten calendar days. Ten calendar days will help to ensure the injured employee, treating doctor and surgeon have adequate notification of the second opinion exam date while ensuring the process of obtaining a second opinion will not be unnecessarily lengthened. The time frame proposed does not provide restriction. The carrier currently has 30 days in which to schedule an appointment with a second opinion doctor. The recommended change will ensure notification of the appointment date, time, place and doctor and will ensure this information is communicated to the injured employee allowing adequate time for the injured employee to schedule transportation and make other personal arrangements necessary in order to attend the appointment. This time frame also provides adequate time for the surgeon to send films and records to the second opinion doctor for review. This recommendation will eliminate the need to reschedule appointments due to lack of availability of either the injured employee or medical films or records and to pay for appointments missed due to lack of adequate notice. COMMENT: A commenter suggested that a waiver under subsection (g)(3) only occur if failure to give notice results in an appointment having to be canceled. RESPONSE: The Commission disagrees. Failure to notify the injured employee, surgeon and treating doctor results in two types of delays. If the injured employee is not timely notified, the appointment will be broken. If the employee attends for the examination but the medical records or films are not available, the second opinion narrative report will be delayed until the second opinion doctor receives and evaluates the medical records. This language change aims to address both broken appointments and delayed second opinions that are caused by failure of the carrier to notify the required parties. The change is proposed because monitoring indicates that additional time has been required for a number of injured employees to receive prompt second opinions because lack of notification or availability of records or films by the surgeon to the second opinion doctor. Ten calendar days will allow the treating doctor/surgeon the necessary time to send the films and records in preparation of the patient evaluation. COMMENT: Other commenters suggested that subsection (g)(3) should not be changed as it allows sufficient time to accomplish the process particularly from the perspective of the patient. Another commenter added that delays in treatment were also not beneficial to the system. RESPONSE: The Commission disagrees. Adequate notification of second opinion examinations is critical to ensuring timely second opinions and determination of carrier liability for spinal surgery. The Commission agrees that delays in treatment may be detrimental to a patient. Spinal surgeons and their office staff have frequently complained to Medical Review that neither the patient nor the surgeon/treating doctor receives timely notification of second opinion examinations. In some cases the notification is received one or two days prior to the exam while in other cases the notification is received the day of the examination or even after the examination date has passed. Medical Review case managers report that for cases that take more than 50 days to close, this issue is present 15% - 20% of the time. Appointments not scheduled, notifications not sent and records not submitted in a timely manner present a problem in the receipt of prompt quality medical care being delivered to the injured employee. COMMENT: A commenter suggested that paragraph (4) should be amended to provide that all parties be notified with a copy of the TWCC-63 following a carrier second opinion waiver. RESPONSE: The Commission disagrees. Upon carrier waiver, all parties are notified by letter by Medical Review. With the present system a letter is submitted to the carrier, treating doctor, surgeon, the injured employee and their representative (should one be stipulated) upon receipt of a notification of waiver by the carrier. THE RULE GENERALLY. COMMENT: Commenters disagreed with the proposed rule changes and recommended that Commissioners not adopt any amendments. Commenters stated sec.133.206 has been effective in ensuring qualified objective second opinions and is an effective tool in maintaining timely, cost effective medical care to spinal injuries requiring surgery. A commenter stated the current rule, although not perfect, is far better than any of the proposed changes. A commenter stated their puzzlement over the proposed changes because the time required to determine carrier liability has been reduced, the second opinion doctor is a true medical opinion, and the monitoring of the whole system is considered to be better. A commenter stated that in his opinion the spinal surgery second opinion process has been an excellent process and has worked in a very expeditious fashion. Commenter questioned the need to change the system in a backwards fashion when the staff is currently happy with the system as it is. RESPONSE: The Commission agrees in part. The rule has been effective: processing time has decreased from an average of 59 days to 35 days; monitoring indicates the second opinions are fair and objective. These amendments are intended to maintain the current level of rule performance while providing for improved objectivity, clarification and quality of the second opinion process. Amendments address complaints and problems encountered by participants. The goal of the amendments is ensure cost effective, quality care for spinal surgery, provide a mechanism to address resolution of disputes regarding medical necessity of services rendered and ensure the integrity of the second opinion exam. COMMENT: Commenter stated as a law firm representing insurance carriers in the State of Texas, we have been concerned about the 1994 amendments to the Spinal Surgery Rules and the effects of those changes on the second opinion spinal surgery process. The change in the rules substantially encumbered the carrier's efforts to oppose unneeded spinal surgeries. Under the previous rule, approximately 1200 surgeries were avoided. After the rule changed, approximately 700 surgeries per year were avoided. The cost savings under the second opinion spinal surgery process was effectively reduced by almost half. RESPONSE: The Commission disagrees. Increased monitoring of the second opinion process reveals a process that appears to be more fair and objective than the previous spinal surgery rule. While the number of nonconcurrence has decreased, the fact that the second opinion doctors are all spinal surgeons selected randomly from the master spinal surgeon list indicates that for the most part the second opinions are of a higher quality and integrity than those of the old rule. Under the old rule a carrier could select any doctor for a second opinion and pay the doctor any fee. This lead to the perception that second opinion exams were not always conducted by qualified doctors and/or that the second opinion process lacked integrity. Injured employees are entitled to reasonable health care to treat their compensable injury. The rule functions primarily to determine the medical necessity of proposed spinal surgeries. The rule does not function with a primary goal of saving money. Medical cost containment is attained by avoiding unnecessary surgeries. The rule requires two surgeons to determine the surgery is unnecessary before the carrier is deemed not liable. The rule attempts to assist injured employees, surgeons and insurance carriers to identify those cases where surgery is likely to benefit the patient's condition versus those in which surgery will not likely be of benefit. COMMENT: A commenter suggested the need for and accumulation of data before we "destroy a system" that is proven to be working well. RESPONSE: The Commission agrees with the desirability of accurate, reliable data. The Commission has a great amount of data collected which supports the rule amendments. The new spinal surgery process has been monitored extensively. It is because of this monitoring that staff has been able, over the past few years, to decrease the processing time dramatically, to monitor the appeals process, to assess administrative violations in those cases where compliance with the rule has affected processing time or integrity of the rule. Furthermore, data has assisted medical review to identify areas of the rule that could be improved upon. In the case of "concurrence with a different procedure recommended" the data indicates that this subgroup of injured employees has a significantly higher rate of reoperation than the rest of the spinal surgery patient population. The Commission believes that the proposed rule change will help the injured employee and that the proposed changes will not "destroy a system". Data will continue to be collected and analyzed by the staff to evaluate the effectiveness of the rule. COMMENT: Commenter supported the amendments proposed to the rule because they achieve the stated goals in the preamble. RESPONSE: The Commission agrees. The proposed amendments reflect quality improvements for those areas of the rule where issues have been raised while allowing for the continued high performance the rule has produced to date. COMMENT: Some Commenters supported removing the sunset clause date and keeping the rule in its current form. RESPONSE: The Commission agrees that the sunset or termination date should be removed because the rule has proven to meet the goals set forth for it. The Commission disagrees with the proposal to leave the rule in its present form. For areas of the rule that have the potential to be improved upon, staff has recommended changes that will result in clarification, increased objectivity, and high quality second opinions that result in the determination of carrier liability. The proposed amendments are intended to improve upon process. COMMENT: Commenter expressed hesitancy to endorse the rule yet now feels it is a beneficial process. RESPONSE: The Commission agrees. Monitoring of the second opinion process indicates that the process is working well in terms of both the three goals set forth. COMMENT: Commenter questioned how the proposed changes are justified by the provision of the Act. Commenter expressed a concern over the passage of a law which will affect all doctors in Texas when "we have two or three potential over utilizers". Another commenter stated that the burden of proof of type of surgery will be placed on the recommending surgeon to defend. RESPONSE: The Commission disagrees that the amendment to sec.133.206 is not in accordance with the Texas Labor Code. Texas Labor Code, sec.408.026, provides that except in a medical emergency, a carrier is liable for medical costs related to spinal surgery only if: (1) before the surgery, the employee obtains, from a doctor obtained by the insurance carrier or the Commission, a second opinion that concurs with the treating doctor's recommendation; (2) the insurance carrier waives the right to an examination or fails to request an examination before the fifteenth day after the date of the notification that surgery is recommended; or (3) the Commission determines that extenuating circumstances exist and orders payment for surgery. The Texas Labor Code also requires that the Medical Review Division establish medical policies relating to necessary treatments for injuries (sec.413.011(d)). Additionally sec.408.023 tasks the Commission to implement rules to ensure a process for obtaining second surgical opinions for the purpose of determining carrier liability. The Act also states that the injured employee is entitled to reasonable health care. Section 133.206 supports the Act, and these changes are made under authority of the Act. The spinal surgery second opinion process established in sec.133.206 has proven to be an effective tool in meeting the three goals established for it: to decrease the processing time frame for the second opinion process; to ensure qualified objective second opinions; and to monitor the system. The amendments adopted to sec.133.206 address the medical costs which are related to spinal surgery and provide guidance regarding what in the treating doctor's recommendation must be concurred with by the second opinion doctor. The amendments also provide clarification which ensures that second opinion examinations are preformed without undue delay as required by the Act. There is no objective data to demonstrate that there are "two or three over utilizers", and the Commission is not aware that this is a fact. The rule will provide a consistent system which will allow monitoring of providers and carriers to ensure system effectiveness and consistency of application. The intent of the rule changes are to affect and protect all injured employees, regardless of who their doctor is. The language changes are proposed with the medical benefits of the employee in mind. Two surgeons need to agree on the type of procedure to be performed, i.e. fusion. Currently, of the approximately 90% of surgical procedures concurred upon, approximately 5.0% have a difference of opinion with regard to the type of procedure. It is this 5.0% that have a 30% rate for recommendation for further surgery compared to the general workers' compensation spinal surgery population in Texas that has an approximate 15% reoperation rate. The language changes to the definition of concurrence aim to bring this part of the spinal surgery population more in line with the rest of the spinal surgery patient population in terms of reoperation rate. Medical Review recognizes that 85% of spinal surgery procedure recommendations are currently agreed upon by the second opinion doctor. The proposed amendment to the definition of concurrence will not affect this portion of the spinal surgery recommendations. There is no "burden of proof" involved; if the second opinion doctor believes that the type of surgery recommended is not likely to benefit the patient, it is a non-concurrence. COMMENT: Commenters requested to know who wrote the changes, based on what data and justification. The commenter stated it appears TWCC is charged with saving the poor uninformed injured worker from care that TWCC is not in a position to evaluate. RESPONSE: The Commission disagrees. Amendments to the spinal surgery second opinion rule were made by Commission staff in accordance with the APA rule making process. TWCC's role is to ensure the second opinion process is timely, fair, objective and well monitored. Need is assessed by second opinion surgeons by evaluating whether there are pathologies within the spine that would be benefitted by the proposed type of spinal surgery recommended by the treating surgeon. TWCC does not determine what care is given, but establishes the process to be followed and the criteria to be met in obtaining the statutorily required second opinion when spinal surgery is recommended. COMMENT: Commenter requested scientific evidence from the Commission's data base regarding a number of issues. RESPONSE: The issues raised by commenter have been included in the summaries of similar comments and have been responded to using information available to the Commission, including the analysis of Commission data. Method and results of data analysis, together with an explanation of how the analysis was related to the issues in the spinal surgery second opinion process are contained throughout this preamble. COMMENT: Some commenters suggested the proposed rule changes serve only to further limit and control spinal surgery and to deny benefits promised and paid for injured employees. Commenter suggested if quality of medical care is to be maintained, the rule should not be changed. Some commenters stated approval of the proposed changes would not be in the patient's best interest but would add further stumbling blocks to the entire process and impair the ability of injured employees to receive all health care reasonably required by the nature of the injury as and when needed. Commenter expressed concern that the adoption of the proposed rule would hinder physicians ability to take care of patients and return injured individuals to gainful employment. It will serve to lengthen the amount of time that it takes a patient to return to his job and adds an unnecessary layer of detail. Commenter recommended the development of a system that rewards efficiency and compassion. Commenter stated it is the responsibility of the Commission to protect the injured workers of the state as mandated in the Texas Workers Compensation Act. Commenters stated they felt the Commission should continue to honor the state's Medical Boards directive granting physicians independent medical decision making ability. Commenter felt the rule amendments are in violation of the medical practice act expressed concern for the rule amendments as they are seen (in the opinion of the commenter) to be in violation of the medical practice act. RESPONSE: The Commission disagrees. The purpose of the amendment is to improve a process which has proven to meet the goals set forth for it. The adopted amendment enhances the patients' right to quality medical cares. Doctors will continue to base their judgments as to the best interest of the patient on medical information. The second opinion process may require additional time for a very few injured employees who require an additional second opinion, however this is expected to be offset by avoiding unnecessary surgeries. Retrospective review of the medical necessity of additional care which is generally related to the spinal surgery does not deny patients care at the time it is needed, but does allow the carrier to request documentation of the relatedness and medical necessity of the care, and makes dispute resolution services available to both parties if there is continued disagreement. The Commission does not stipulate to the physician what care is provided. Second opinion concurrence or non- concurrence is by another licensed medical practitioner who is a qualified spinal surgeon. COMMENT: Commenter felt the spinal surgery second opinion process is beneficial but because the field of orthopedic surgery is a manually oriented specialty the type of surgery to be performed is best left to the operating surgeon based on that surgeon's skills. RESPONSE: The Commission disagrees. It is the treating surgeon who initially recommends the type of surgery to be performed. One of the two second opinion doctors needs to agree with the surgeon that the type of surgery recommended is likely to be beneficial to the injured employee for the carrier to be liable. For example if the surgeon recommends a fusion, one of the two second opinion doctors needs to agree that a fusion is likely to benefit the injured employee. The actual number of levels fused, the approach (anterior, posterior, posterior- lateral, etc.) type of hardware, site and type of donor graft etc. are medical decisions made by the surgeon. TWCC data indicates that when the procedure type is not agreed upon, there is a higher than average reoperation rate for those patients. COMMENT: Commenter requested the Commission and staff move deliberately and solicit input from the various parties as to the need for changes and the effects of such changes. RESPONSE: The Commission agrees. The staff made these recommendations after collecting data and monitoring the second opinion process since November 1, 1994. Changes are only being made to those areas of the rule where problems are noted, complaints have been received or where confusion exists. Input from various parties was received via medical review seminars, speaking engagements and from comments and complaints received verbally by spinal surgery case managers. COMMENT: Commenter felt the practice of both medical and surgical orthopedics in the state of Texas would be effectively destroyed by adopting the proposed rule amendments. Some commenters stated it would serve as a disservice to patients whom they are pledged to serve by the Hippocratic Oath. Some commenters expressed concern that the administrative technique used in the spinal surgery second opinion rule will be transferred to fee for service, capitated and PPO- HMO type programs. RESPONSE: The Commission disagrees. The amendments do not contain elements that would "destroy" medical or surgical orthopedics in Texas. The staff will continue to monitor the number of surgeons who are recommending surgery. Currently, monitoring indicates an increasing number of spinal surgeons who are providing services to injured employees. Requiring a second opinion concurrence with the type of surgery recommended is not a disservice to the injured employee; it provides an additional medical opinion regarding the necessity for a surgical procedure. The spinal surgery second opinion process is required by the Texas Workers' Compensation Act. COMMENT: Commenter stated that there were some good things about the new law but there were also some very serious problems, the first of which is that carriers are using the limits of their allowances, because they have the right to do so, to make decisions while a patient is in need of treatment. RESPONSE: The Commission disagrees. Subsection (b)(3) limits what carriers may retrospectively dispute and stipulates the manner in which the carrier must review the bill prior to disputing. This paragraph also gives fair warning to carriers that the division may recommend administrative violation proceedings when a carrier unreasonably denies benefits which are medically necessary. COMMENT: Commenter stated the carrier was found liable for 91% of the surgeries and believed it to be improbable that only 9.0% are truly unnecessary. Commenter recommended the Commission dispense with the second and third opinion processes and substitute a single physician selected by the Commission on a rotating basis much like that which selects the Designated Doctor. Commenter alternatively recommended that the claimant-selected doctor be eliminated and the third doctor be selected by the Commission on a rotating basis as designated doctor and that the doctor's opinion be given presumptive weight. Commenter felt that the claimant selection of the third doctor was unfair and that what the Commission should be about, what carriers and claimants should be about is to narrow the field and allow surgeries only where they're really needed. Commenter felt that the process in place at the current time was not accomplishing that goal. This commenter felt this process would make the process fair, simplify the paperwork and expedite the process to the advantage of the injured employee. Commenter suggested carriers be allowed to choose a second opinion doctor (not from a Commission list) when a dispute arises a Commission selected third doctor break the tie and mediate between them. RESPONSE: The Commission disagrees. The process described by the commenter is similar to the process that was in place under repealed sec.sec.133.200 - 133.205. Under the current rule, sec.133.206, integrity of the second opinion process is achieved by: ensuring a list of qualified practicing surgeons are available to provide second opinions, providing randomly created sublists to both the carrier and the claimant, ensuring the doctors on the sublist are not economically or financially associated with the treating doctor or the surgeon, and by ensuring a maximum allowable reimbursement for second opinions. The commenter does not indicate how the process he proposes would improve the integrity or decrease timeframes, however monitoring indicates that sec.133.206 provides for fair and objective second opinions. COMMENT: Some commenters requested further clarification on the statistics presented and a determination of the validity of the statistics. The commenter questioned what is meant by repeat surgery and does that definition include planned future surgeries. Commenter recommended a review of the data used to justify the proposed change by an nonpartisan medical panel. Comments expressed confusion in attempting to use the data cited in the preamble to this rule to reach the same conclusion as the Commission that the rate of repeat surgeries is high in a particular segment of injured workers who receive spinal surgery. A commenter stated use of 1997 data was unfair because we have not had time to evaluate whether these patients had repeat surgeries. RESPONSE: The Commission disagrees that the data analyses used to evaluate the spinal surgery second opinion process is unclear. Data reported is obtained directly from TWCC-63 forms submitted by spinal surgeons since November 1, 1994. Monitoring of the process results indicates that there is a subset of injured workers, approximately 5.0%, who have repeat surgery recommended at about twice the rate of the rest of the spinal surgery population. Repeat surgeries are represented by subsequent recommendations for surgery, excluding those for removal of instrumentation or removal of bone growth stimulators. The general spinal surgery population, for worker's compensation in Texas has an approximate 15% reoperation rate. The 5.0% of spinal surgery candidates who have a different type of surgery recommended by second opinion doctors, from the procedure recommended by the surgeon, have a 31% rate for recommendation for a second, third, fourth or more surgeries. The change in definition for injured workers who are currently experiencing a high rate of recommendations for further surgeries, should help to ensure that the first surgery is more likely to be beneficial. By having agreement with the type of surgery to be performed (i.e. fusion, laminectomy etc.) we anticipate improved outcome for injured workers. Additionally the group of patients referred to, had their first surgical recommendation in 1995. Subsequent surgical recommendations occurred in 1996, 1997, or 1998. COMMENT: Commenter challenged the statement in the preamble that the proposed the rule amendment was in response to complaints received. The commenter contended that his understanding was that there were only about eight complaints received which out of 7,000 second opinion evaluations equates to a percentage of .001(1000th of a complaint). The commenter concluded that there did not appear to be much of a problem and suggested that the data be analyzed by an unbiased source. RESPONSE: The Commission disagrees. The Medical Review Division is unclear as to the source of this commenter's statistic of eight complaints. The Division has received complaints from participants regarding each of these issues. COMMENT: Commenter supported the rule changes and stated the re-operation rate for spinal surgery is unacceptably high. RESPONSE: The Commission agrees. The data shows a much higher re-operation rate for those injured employees for whom a second opinion doctor recommended a different procedure than for those injured employees for whom the second opinion doctor concurred with the recommendation of the surgeon. The general spinal surgery population, for workers' compensation in Texas has an approximate 15% reoperation rate. The 5.0% of spinal surgery candidates who have a different type of surgery recommended by second opinion doctor, than the procedure recommended by the surgeon, have a 30% rate for recommendation for a second, third, fourth, or more surgeries. COMMENT: Commenter felt that only the State Board of Medical Examiners is authorized to regulate the practice of medicine and the entire spinal surgery second opinion process is in violation of the medical practice act. RESPONSE: The Commission disagrees. The spinal surgery second opinion process is a process to determine carrier liability based on medical necessity as determined by practicing spinal surgeons. COMMENT: Commenter felt that the provisions of the rule do not speak specifically to emergency surgery and the carriers liability but do allow retrospective review of charges by the carrier withholding payment. RESPONSE: The Commission disagrees. Carriers are liable for the reasonable and necessary medical care provided to the injured employee. Retrospective review of the medical necessity, including review of emergency provisions if performed, should be performed in accordance with any rules and laws regarding regulation of utilization review. Carriers must pay or deny bills within 45 days of receipt. A provider who wishes to dispute the carriers decision regarding bill payment may avail themselves to Medical Dispute Resolution. Subsection (b)(1)(A) provides for carrier liability for spinal surgery in a medical emergency. This provision has not been amended. In addition, the rule provides a definition of medical emergency in subsection (a)(2). COMMENT: Commenter expressed concern about time delays resulting from proposed rule changes as a third surgical opinion would be necessary to determine concurrence due to disagreement regarding levels of the particular type of surgery. RESPONSE: The Commission agrees in part. In a very few cases, a third appointment i.e. employee selected second opinion, will need to occur. The Commission hopes that for these few injured workers' the higher quality of second opinion will be beneficial in that fewer patients will require second, third, fourth surgeries. Disagreement between the second opinion doctor(s) and the surgeon regarding specific levels of the spine to be operated upon, is not considered a nonconcurrence. A nonconcurrence is a difference of opinion regarding the type of surgery to be performed. For example, if the surgeon recommends a fusion and both second opinion doctors recommend a discectomy, this is considered a nonconcurrence. COMMENT: Commenter expressed concern over the time requirements in place for carriers and providers but the lack of time requirements in place for TWCC. The time it takes to verify information on the TWCC-63 form can cause system delays. Commenter also expressed concern over the lack of a time requirement within which notification is required, by TWCC to the other parties of a concurrence or nonconcurrence. Commenter expressed concern that the rule does not require that the recommending surgeon, treating doctor, and insurance carrier be notified by TWCC. RESPONSE: The Commission disagrees. The goal established for the system at its inception to decrease the processing time frame for the second opinion process has been achieved as is supported in the 1997 data presented showing a reduction of 59 to 35 days to case closure. The Commission further disagrees that the parties who require notification are not notified in a timely manner. The rule does require notification of all parties by TWCC. Upon closure, finding of liability determined by concurrence or non-concurrence, letters are generated within 24 hours and sent to the carrier, surgeon, treating doctor, injured employee, and employees legal representative(if represented). Furthermore, staff consistently evaluate the second opinion process and make recommendations and take actions both internally and as relates to system participants to improve processing time. COMMENT: Commenter expressed the opinion that the rule already meets the Texas Workers Compensation Act provision that "the Commission shall adopt rules necessary to ensure that an examination required under this section is performed without undue delay" and that the amendment will increase the amount of time and money it requires to treat injured workers. RESPONSE: The Commission agrees that the rule does meet the requirements under the Texas Workers Compensation Act. As discussed elsewhere, the Commission disagrees that the amendments will cause increased costs and time delays. The second opinion process may requires additional time for a very few injured employees who requires an additional second opinion, however, this is expected to be offset by avoiding surgeries that are not likely to benefit the injured employee's condition. COMMENT: Commenter expressed concern that due to delays, denials and challenges faced by health care providers and the injured workers a significant percentage, probably 50% of patients with work related injuries have some form of psychological problems. RESPONSE: The Commission neither agrees nor disagrees. The commenter did not cite the reference for this data. No data is presented to demonstrate what percentage of these injured employees had pre-existing psychological problems and what percentage had psychological problems which arose subsequent to their injury. No data is presented to suggest that the work related injury or "delays, denials and challenges faced by health care providers and the injured workers" was the causative factor in the psychological problems. The coexistence of two variables cannot be assumed to demonstrate causation. COMMENT: Commenter suggested that the claimant and his or her chosen doctor decide whether they want the surgery before they start the paperwork flurry. The commenter felt that would give the claimant all of the second opinions needed before the request is made. RESPONSE: The Commission disagrees. The decision to pursue surgery is decided by the surgeon and the injured employee before the TWCC-63 process is initiated. The Commission has no reason to believe injured employees are not informed about spinal surgery before the process is initiated. The Commission disagrees that the injured employee's second opinions should be obtained before the recommendation is made. The second opinion process assures that second opinions are rendered by qualified spinal surgeons who are selected in as non-biased a fashion as possible. The Commission is also able to monitor and expedite the process to assure that the rights and responsibilities of all parties as set out in the rule are maintained. COMMENT: Some commenters expressed concern that the TWCC medical advisory committee was not party to the drafting of the proposed rule amendments. A commenter requested information on which spinal surgeons were consulted when the preamble was drafted. RESPONSE: The MAC was not asked for input or recommendations regarding this rule proposal because there are no spinal surgeons on the MAC. Preamble is written by Commission staff. COMMENT: Commenter urged communication with physicians on any rule changes. RESPONSE: The Commission agrees. The Commission will make the amended rule available to system participants. COMMENT: Commenter recommended that: TWCC convene a small group consisting of spinal surgeons, representative of carriers and appropriate Commission staff to look at the current and proposed rules, analyze existing data and medical information and make recommendations about how best to prevent abuses by all parties and provide timely and appropriate care to the worker; temporarily extend the sunset date until the group makes its recommendations; set a reasonable time limit for completion of the work. A further suggestion was to add a physician medical director to the Commission staff. RESPONSE: The Commission disagrees. Revisions to the rule are recommended as a result of tracking and analysis over the last three and one half years. The amendments have been written to clarify the rule and to promote cost effective, quality care for injured employees requiring spinal surgery. COMMENT: Commenter stated TWCC has placed themselves in an adversarial position with the spine surgeons, giving the appearance of an alliance with the insurance carriers being in a position to enhance the already enormous profits of insurance companies. RESPONSE: The Commission disagrees. The Commission has not formed an alliance with either carriers or providers but remains in a neutral position to ensure system integrity and quality for the injured worker and the employer. COMMENT: Commenters opposed the deletion of language in subsection (i)(3) stating that it is useful for the narrative report to discuss why there are differences of opinion and why there are differences in recommendations. RESPONSE: The Commission disagrees. The language was deleted because differences of opinion may in fact affect carrier liability for spinal surgery. However, the absence of this language does not prevent a second opinion doctor from including such information in the report or from discussing their opinions with the surgeon. The amendment is adopted under the Texas Labor Code, sec.402.061, which authorizes the Commission to adopt rules necessary to administer the Act; the Texas Labor Code, sec.402.072, which mandates that only the Commission can impose sanctions which deprive a person of the right to practice before the Commission, receive remuneration in the workers' compensation system, or revoke a license, certification or permit required for practice in the system; the Texas Labor Code, sec.408.022, which requires an employee receiving treatment under the workers' compensation system to choose a doctor from a list of doctors approved by the Commission and establishes the extent of an employee's option to select an alternate doctor; the Texas Labor Code, sec.408.026, which establishes when a carrier is liable for costs relating to spinal surgery and mandates that the Commission adopt rules necessary to effectuate the statute; the Texas Labor Code Chapter 410, which provides procedures for the adjudication of disputes; the Texas Labor Code, sec.413.031, which provides a process for dispute resolution for disputes involving medical services; the Texas Labor Code, sec.415.034, which allows a party charged with an administrative violation or the Executive Director of the Commission to request a hearing with the State Office of Administrative Hearings; and the Texas Government Code, sec.2003.021(c), which requires the State Office of Administrative Hearings to conduct hearings under the Texas Labor Code, Title 5, in accordance with the applicable substantive rules and policies of the Texas Workers' Compensation Commission. These statutory provisions authorize the Commission to adopt a rule such as sec.133.206 which establishes the process by which a carrier becomes liable for spinal surgery and sets out the procedures and requirements to effectuate the second opinion process. sec.133.206.Spinal Surgery Second Opinion Process. (a) Definitions. The following words and terms, when used in this subchapter, will have the following meanings, unless the context clearly indicates otherwise. (1) Division - the Medical Review division of the Texas Workers' Compensation Commission. (2) Medical emergency - A diagnostically documented condition including but not limited to: (A) unstable vertebral fracture of such critical nature that increased impairment may result without immediate surgical intervention; (B) bowel or bladder dysfunction related to the spinal injury; (C) severe or rapidly progressive neurological deficit; or (D) motor or sensory findings of spinal cord compression. (3) Treating doctor - The doctor who is primarily responsible for coordinating the injured employee's health care for a compensable injury. (4) Surgeon - The doctor listed on the form TWCC-63 as the surgeon to perform spinal surgery. (5) Acknowledgment date - The earlier of the date on which the insurance carrier representative in Austin signs for the TWCC-63 form or narrative report, or the day after the date the TWCC-63 form or narrative report is placed in the carrier's box. (6) List - A list maintained by the division of surgeons whose current practice includes performing spinal surgery. (7) Sublist - A sublist of five qualified doctors from the List, selected as required by subsection (c) of this section, and provided by the division to the injured employee and the carrier for selection of a second opinion doctor. (8) Qualified doctor - A doctor who meets the minimum qualifications as listed in subsection (d) of this section. (9) Carrier-selected doctor - A qualified doctor selected by a carrier within 14 days of the acknowledgment date, to render a second opinion on spinal surgery. (10) Employee-selected doctor - A qualified doctor other than the treating doctor or surgeon, selected by an employee to render a second opinion on spinal surgery. (11) Commission-selected doctor - A qualified doctor selected by the commission to render a second opinion on spinal surgery. (12) Second opinion doctor - A commission-selected doctor, an employee-selected doctor and\or a carrier-selected doctor, provided that the injured employee and the carrier each may select only one second opinion doctor. (13) Concurrence - A second opinion doctor's agreement that the surgeon's proposed type of spinal surgery is needed. Need is assessed by determining if there are any pathologies in the area of the spine for which surgery is proposed (i.e. cervical, thoracic, lumbar, or adjacent levels of different areas of the spine) that are likely to improve as a result of the surgical intervention. Types of spinal surgery include but are not limited to: stabilizing procedures (e.g. fusions); decompressive procedures (e.g. laminectomy); exploration of fusion/removal of hardware procedures; and procedures related to spinal cord stimulators. (14) Nonconcurrence - A second opinion doctor's disagreement with the surgeon's recommendation that a particular type of spinal surgery is needed. (15) Refusal - Refusal to perform second opinion exam except when due to absence from the office because of illness, accident or personal leave. (16) Change of condition - A documented worsening of condition, new or updated diagnostic test results and/or the passage of time providing further evidence of the condition, or follow up of treatment recommendations outlined by a second opinion doctor. (b) Carrier Liability for Spinal Surgery Costs. (1) Subject to the provisions of paragraph (4) of this subsection, the carrier is liable in any of the following situations for the reasonable and necessary costs of the proposed type of spinal surgery and the medically necessary care related to the spinal surgery. The surgery must be related to the compensable injury and performed by a surgeon who was on the List at the time the TWCC-63 was filed with the commission by the treating doctor or the surgeon . The carrier is liable in the following situations: (A) medical emergencies; (B) carrier waiver of second opinion; (C) no carrier request within 14 days of acknowledgment date, for a second opinion; (D) concurrence by both second opinion doctors; (E) no timely appeal after two second opinions, only one of which is a concurrence; (F) final and nonappealable commission order to pay. (2) The medically necessary care related to the spinal surgery generally includes the services of the surgeons and ancillary providers for the hospital admission, and the hospital services. (3) If a carrier becomes liable for spinal surgery pursuant to the provisions of this section, disputes regarding the proposed and concurred upon type of spinal surgery shall be limited to a dispute as to the reasonableness of the fees charged. A carrier may challenge whether medical care related to the spinal surgery is medically necessary. A carrier's bill review for medical necessity must be performed in accordance with any applicable rules and regulations regarding utilization review. In dispute resolution proceedings regarding medical necessity, carriers are required to provide documentation indicating compliance with applicable rules and regulations regarding utilization review. A carrier shall not unreasonably deny benefits which are medically necessary. The division may recommend administrative violation proceedings when a carrier unreasonably denies benefits. (4) Determinations of carrier liability made pursuant to paragraph (1)(B), (C), (D), (E), or (F) of this subsection are valid for one year from the date the determination is made. After one year, medical necessity for the proposed spinal surgery shall be reevaluated before surgery occurs. (A) If the carrier liability determination resulted from a situation described in paragraph (1)(B), or (C) of this subsection, the spinal surgery second opinion process shall be reinitiated through submission of a new TWCC-63 form in accordance with subsection (e) of this section. (B) If the carrier liability resulted from a situation described in paragraph (1)(D), (E), or (F) of this subsection or from concurrence by only one second opinion doctor, the treating doctor or surgeon shall submit a copy of the original TWCC-63 to the division and all second opinion doctors with documentation indicating the continued medical necessity for the type of spinal surgery. The second opinion doctor(s) shall review the documentation, examine the injured employee if indicated, and submit an addendum report in accordance with subsection (l)(2) and (3) of this section. Addendum decisions, reports, records, and payments, and appeal to a CCH are governed by all of the provisions of this section. (c) Commission List and Sublist. (1) The division will maintain a list of surgeons who perform spinal surgery, including specialty, any specialty training/certification in spinal surgery, and names of spinal surgeons with whom the surgeon is economically associated or shares office space. (2) The initial List will consist of all doctors who have billed for spinal surgery under the Texas Workers' Compensation Act (the Act), as indicated in the division's billing data base, and who have provided the required information set out in paragraph (1) of this subsection. The division will request the required information from each of these doctors. Failure of the doctor to timely respond may result in an order to respond to the division's request, issued pursuant to sec.102.9 of this title (relating to Submission of Information Requested by the Commission). A doctor may be added to the List by filing with the division a written request which includes both a statement that the doctor performs spinal surgery, and the additional information required by the division for the List. (3) If requested by an injured employee, a treating doctor or surgeon on behalf of the injured employee, or a carrier, the division will provide a sublist of five qualified doctors from which a second opinion doctor may be chosen. The sublist will be composed of qualified doctors located within 75 miles of the injured employee's residence, and will be selected from the List by the division on a rotating basis. If the List does not include five qualified doctors located within 75 miles of the injured employee's residence, the division will include on the sublist the qualified doctors who are located at a greater distance. The treating doctor or surgeon must, within seven days of receiving the sublist from Medical Review, notify Medical Review of the employee's selection of second opinion doctor, and the date and time of the employee-selected second opinion appointment. (4) A doctor may be removed from the List for just cause in compliance with the following procedures, for any of the following actions: (A) two refusals, within a 90 day period or two consecutive refusals to perform within the required time frames a requested second opinion for which the doctor is qualified; (B) two untimely submissions, within 90 day period or two consecutive untimely submissions of second opinion narrative reports or any reports, records, or forms required by this section to be filed or provided; (C) intentionally postponing or delaying a recommendation for surgery while suspended from the List. (5) A doctor who has been referred for an administrative violation pursuant to subsection (d)(5) of this section and meets the criteria of paragraph (4) of this subsection will be suspended from the List by the division for 30 days. (6) The division will notify a doctor by delivery, return receipt requested, of suspension from the List. The suspension will be effective from the date of receipt of the notice by the doctor. A doctor who has been suspended from the List for 30 days may be reinstated to the List by filing with the division a written request which includes a commitment to perform timely and appropriate second opinions and to submit timely reports, records, and forms in compliance with this section. (7) The commissioners may suspend a doctor from the List for up to a one-year period, if a doctor who was suspended for 30 days and reinstated to the List, again meets the criteria of paragraph (4) of this subsection. (8) The division will again suspend the doctor from the List for 30 days, notify the doctor as required in paragraph (6) of this subsection and prepare a recommendation to the commissioners that the doctor be suspended from the List for a period of up to one year. (9) The division will notify the doctor by delivery, return receipt requested, of the division's intent to recommend to the commissioners that the doctor be suspended from the List. Within 20 days after receiving the notice, a doctor may request a hearing to be held as provided by sec.145.3 of this title (relating to Requesting a Hearing) or as provided by sec.148.3 (relating to Requesting a Hearing) as applicable. The request must be in writing to the division and actually received in the commission's central office in Austin, Texas, within 20 days after the doctor's receipt of the notice of intent to suspend the doctor from the List. If a request for hearing is timely received, the commission will hold a hearing as provided in Chapter 145 of this title (related to Dispute Resolution - Hearings Under the Administrative Procedure Act) or the State Office of Administrative Hearings will hold a hearing as provided in Chapter 148 of this title (relating to Hearings Conducted be the State Office of Administrative Hearings). At the conclusion of a hearing conducted under the provisions of Chapter 145 or Chapter 148 of this title, the hearing officer shall propose a decision to the commission for final consideration and decision by the commission. If no request for a hearing is timely filed, the division's recommendation will be reviewed by the commissioners at a public meeting and a decision made to either suspend or maintain the doctor on the List. (10) If the commissioners decide to suspend a doctor from the List, the commissioners will issue an order of suspension which states the length of the suspension and describes the effects of the suspension. The order may also state restrictions on reinstatement or impose a specific method for reinstatement to the List. The order will be delivered to the doctor, return receipt requested. After receipt, a second opinion doctor shall inform injured employees seeking second opinions on spinal surgery under the Act, of the doctor's suspension from the List and that the insurance carrier will not be liable for the costs of a second opinion exam performed by that doctor while he is suspended from the List. After receipt, a treating doctor or surgeon shall inform injured employees seeking spinal surgery under the Act, of the doctor's suspension from the List and that the insurance carrier will not be liable for the costs of spinal surgery for which the TWCC-63 is filed with the commission while that doctor is suspended from the List. Failure to inform the injured employee in the form and format prescribed by the commission may subject the doctor to administrative penalties of up to $10,000 and other sanctions as provided by the Act. (11) Unless a different period of suspension or method of reinstatement is provided by the commission order suspending the doctor from the List, a doctor suspended from the List may be reinstated as follows. A doctor may be reinstated to the List after a six month period by written request to the division which includes a renewed commitment to perform timely and appropriate second opinions and to submit timely reports, records, and forms in compliance with this section, provided appropriate members of the doctor's staff have attended a division seminar for providers within the suspension period. After a one year period, a doctor may be reinstated by written request to the division which includes a renewed commitment to perform timely and appropriate second opinions and to submit timely reports, records, and forms in compliance with this section. The division will immediately notify a doctor who has been reinstated to the List. The reinstatement will be effective from the date of the division's action to reinstate. (d) Second Opinion Doctor's Qualifications. (1) The doctor rendering a second opinion must meet the following minimum qualifications: (A) be a spinal surgeon on the List; (B) be a spinal surgeon with specialty training in spine surgery; (C) not be economically associated with or share office space with the treating doctor or the surgeon; (D) not be scheduled to perform or assist with the recommended surgery; and (E) currently active on the TWCC Approved Doctor List. (2) The doctor rendering the second opinion cannot for a period of 12 months after rendering a second opinion become the injured employee's treating doctor or surgeon for the medical condition on which the doctor rendered a second opinion. (3) An out-of-state doctor who is not on the List may be approved by the division as a qualified doctor if the claimant is residing out-of-state. (4) When deemed necessary the division at its discretion may waive any of the requirements in paragraph (1) of this subsection, with the exception of paragraph (1)(B) of this subsection, to secure timely and reasonable appointments. (5) The division may issue an order requiring timely submission of a report, record, or form required by this section, recommend administrative violation proceedings, take action to remove a doctor from the List as described in subsection (c) of this section and/or take action to remove a doctor from the Approved Doctor List in compliance with sec.126.8 of this title (relating to Commission Approved Doctor List) for noncompliance with the order. (6) A second opinion doctor is responsible for performing an exam if requested by the insurance carrier, the injured employee or the commission unless the division releases the doctor from assessing a particular employee. To consider releasing a proposed second opinion doctor from the requirement to render an opinion on a specific case, Medical Review must agree that the selected second opinion doctor is not qualified due to unique or complex pathology or because the doctor's expertise excludes the involved body area. (e) Submission of Request for Spinal Surgery and for Second Opinion by Employee- Selected Doctor; Doctors' Responsibilities and Records. (1) To recommend spinal surgery, the treating doctor or surgeon shall submit to the division a TWCC-63 in the form and manner prescribed by the division. The TWCC-63 may be faxed directly to the division. (2) The doctor submitting the TWCC-63 shall advise the injured employee of the injured employee's right to obtain a second opinion from a qualified doctor. If the injured employee decides to seek a second opinion, the injured employee or the treating doctor or surgeon on behalf of the employee, shall request that the division provide a sublist of qualified doctors. The injured employee with assistance from the treating doctor or surgeon shall select a qualified second opinion doctor from the sublist and schedule the appointment date prior to submitting the TWCC-63. The second opinion appointment should be scheduled to occur within 30 days from the date the TWCC-63 is submitted to the division. The name of the selected doctor and the appointment information shall be submitted on the TWCC-63 in the form and manner prescribed by the division. (3) The surgeon shall ensure that all medical records and films arrive at each second opinion doctor's office prior to the date of the scheduled second opinion. (4) The doctor submitting the TWCC-63 shall maintain accurate records to reflect: (A) medical information regarding emergency conditions; (B) injured employee notification of right to a second opinion; (C) the submission date of the TWCC-63, and any amended TWCC-63s; (D) the date and time of any second opinion appointment scheduled with employee- selected doctor; and (E) the date the medical records were sent by the surgeon to each second opinion doctor. (f) Commission Notification to Carrier. The division will notify the carrier via the carrier representative in Austin of the receipt of any required TWCC-63's by placing copies in the carrier representative's box. The division will also provide a sublist to the carrier. The carrier representatives shall sign for the forms. The carrier representative is responsible for the receipt of and the response to TWCC-63s. (g) Carrier Waiver of or Request for Second Opinion by Carrier-Selected Doctor; Carrier Records. (1) The carrier must waive the second opinion or request a second opinion exam be performed by a carrier-selected doctor. This decision and choice of the carrier-selected doctor from a sublist must be made and submitted to the division on a TWCC-63 in the form and manner prescribed by the division and without undue delay but no later than 14 days after the acknowledgment date. The TWCC-63 may be faxed or delivered directly to the division. (2) The carrier shall set the appointment and include appointment information on the TWCC-63 in the form and manner prescribed by the division. The appointment date set by the carrier should be within 14 days and must not exceed 30 days from the acknowledgment date. (3) A carrier will be deemed to have waived a second opinion if the carrier chooses a doctor not on the sublist or sets an appointment which exceeds 30 days from the acknowledgment date or fails to timely notify the injured employee, the surgeon, and the treating doctor of the scheduled second opinion examination. Notification of the examination must be sent at least ten calendar days prior to the appointment. (4) The carrier shall notify in writing the injured employee, the treating doctor, and the surgeon of the appointment information. This notification shall be in the form and manner prescribed by the division and shall include a copy of the TWCC-63, and a narrative explanation of the purpose of the exam. (5) The carrier representative shall maintain accurate records to reflect: (A) the acknowledgment date of the TWCC-63; (B) the date the TWCC-63 required by paragraph (1) of this subsection was submitted to the division; (C) the date the notice required by paragraph (4) of this subsection was given; (D) if applicable, the name of the carrier-selected doctor and the date and time of the scheduled exam; and (E) the acknowledgment date of the narrative report required by subsection (i) of this section. (h) Division Notification to Employee of Option to Obtain a Second Opinion From an Employee-Selected Doctor. (1) If the carrier elects to have a second opinion and the employee has not already scheduled a second opinion from an employee-selected doctor, the division shall notify the employee of the following: (A) that the carrier will be obtaining a second opinion from a carrier-selected doctor and the date and time; (B) that the employee may obtain a second opinion from an employee-selected doctor; (C) the sublist from which the employee may select an employee-selected doctor; and (D) the procedures and the time deadlines for obtaining a second opinion from an employee-selected doctor; (2) The treating doctor or surgeon must within five days of receiving notification from the division, notify the division if the employee is going to select an employee-selected doctor. (3) If the injured employee elects to have an employee-selected second opinion, the injured employee shall select a qualified second opinion doctor from the sublist. The injured employee may seek assistance from the treating doctor or surgeon in selecting a doctor from the sublist. The appointment must be scheduled prior to the treating doctor's or surgeon's submission of an amended TWCC-63 which contains the information required by subsection (e) of this section. The amended TWCC-63 must be filed with the division no later than ten days after the treating doctor's or surgeon's receipt of notification from the division. (4) The second opinion exams scheduled in this subsection shall be set for a date later than the carrier-selected doctor second opinion appointment. (5) If the second opinion of the carrier-selected doctor is a concurrence the appointment scheduled in this subsection may be canceled. (6) Decisions, reports, records, and payments for second opinions obtained pursuant to this subsection shall be governed by the same provisions applicable to second opinions pursuant to subsections (i) and (j) of this section. (7) If the carrier selected second opinion exam results in a nonconcurrence and the division has not received notice of the employee's choice of second opinion doctor, the division will notify the employee, treating doctor and surgeon of the following: (A) that the carrier selected second opinion exam resulted in a nonconcurrence; (B) that in order for the carrier to become liable for the costs of surgery, the employee must receive a concurrence from one of the doctors on the employee sublist; and (C) that failure to inform the division of the employee's selection of a second opinion doctor, within 14 days of nonconcurrence notification from the division, will result in withdrawal of the recommendation for spinal surgery. (8) If a recommendation is withdrawn, the treating doctor or surgeon may resubmit in accordance with subsection (l)(1) of this section. (i) Second Opinion Decisions and Reports; Second Opinion Doctors' Records. (1) A second opinion doctor must provide appointments for requested second opinions within the 30-day time frames required by subsections (e)(2) and (g)(2) of this section. (2) The second opinion doctor's opinion must be based on physical examination of the injured employee and review of the medical records and films forwarded by the surgeon. The second opinion doctor shall call the designated phone number at the division within two days after the exam to submit the results of a second opinion. The message must include the injured employee's name and social security number, the date and time of the exam, the name of the second opinion doctor and a clear decision of a "concurrence" or "nonconcurrence" with the need for the recommended type of spinal surgery. The second opinion doctor shall return any films within three days to the doctor who submitted the films. (3) The second opinion doctor must complete a narrative report regarding the second opinion exam which indicates the second opinion doctor's decision, and submit it to the division, the treating doctor, the surgeon, and the carrier, within ten days of the exam. The division will notify the employee of the decision(s) of the second opinion doctor(s). (4) A second opinion doctor shall maintain accurate records to reflect the following for second opinions: (A) the date for which the exam was scheduled; (B) the circumstances regarding a cancellation, no show or other situations where the exam did not occur as scheduled; (C) the date of the examination; (D) the second opinion doctor's decision; (E) the date the decision was called into the division; (F) the date the narrative was mailed to the treating doctor, the surgeon, and the carrier; and (G) the date the narrative was sent to the division. (j) Payment for the Second Opinion Exam. (1) The division shall notify the carrier via the carrier representative of narrative reports received by the division. The carrier representative shall sign and acknowledge receipt of notice of narrative reports. Carriers shall not pay a doctor for a second opinion exam until receipt of notice of the narrative report. A carrier's time frame for payment of the bill for a second opinion begins with the receipt of the bill from the doctor or the acknowledgment date of notice of the narrative report from the division, whichever is the later of the two dates, regardless of the time frame or process established by Chapter 134 of this title (relating to Guidelines for Medical Services, Charges, and Payments). (2) The insurance carrier is responsible for paying the reasonable costs of a second opinion exam by a qualified doctor whether requested by the injured employee or the carrier. The second opinion doctor's bill and the carrier's payment for second opinion exams shall be inclusive of the exam, review of records and films, and the preparation and submission of the reports, and shall be the lesser of the charged amount or the following fees for the applicable service: (A) $350 for second opinions (use code WC001); (B) $100 if the injured employee fails to show up for a scheduled second opinion exam or if a scheduled second opinion exam is cancelled by the employee with less than 24 hours notice (use code WC002); or (C) $150 to reconsider an earlier decision (use code WC003). (3) A carrier shall pay for the reasonable travel expenses for an injured employee to attend a second opinion appointment. (4) The carrier shall be responsible for the reasonable copying costs of the films and records needed to perform a second opinion. (k) Appeal to a Contested Case Hearing (CCH). (1) An employee may appeal to a CCH if there is no second opinion concurrence. (2) A carrier may appeal to a CCH if there is a second opinion nonconcurrence. (3) The appeal must be filed within 10 days after receipt of notice from the commission regarding carrier liability for spinal surgery. The appeal must be filed in compliance with sec.142.5(c) of this title (relating to Sequence of Proceedings to Resolve Benefit Disputes). The contested case will be scheduled to be held within 20 days of commission receipt of the request for a CCH. The hearings and further appeals shall be conducted in accordance with Chapters 140 - 143 of this title (relating to Dispute Resolution/General Provisions, Benefit Review Conference, Benefit Contested Case Hearing, and Review by the Appeals Panel). (4) Of the three recommendations and opinions (the surgeon's, and the two second opinion doctors'), presumptive weight will be given to the two which had the same result, and they will be upheld unless the great weight of medical evidence is to the contrary. The only opinions admissible at the hearing are the recommendation of the surgeon and the opinions of the two second opinion doctors. (l) Resubmitting the Issue of Spinal Surgery. (1) If the injured employee has a change of condition at any time after a nonconcurrence, the treating doctor or surgeon may submit a TWCC-63 to the division and to both the second opinion doctors with documentation indicating the change of condition as defined in subsection (a)(16) of this section. The second opinion doctors will review the documentation for the purpose of evaluating the presence of criteria listed in subsection (a)(16) prior to submission of an addendum report. If in the doctor's opinion the documentation does not meet the criteria of subsection (a)(16), the second opinion doctor shall submit a report to the division and the treating doctor or surgeon indicating there is no change in condition. If documentation meets the criteria in subsection (a)(16), the second opinion doctors shall issue an addendum to the original decision and send a copy to the division, the treating doctor, the surgeon, and the carrier with the word "ADDENDUM" clearly indicated on the narrative report. Addendum decisions, reports, records, and payments, and appeal to a CCH are governed by all of the provisions of this section. If the addendum second opinions result in carrier liability, any pending appeal shall be dismissed. (2) Addendum decisions, reports, records, and payment shall be governed by subsections (i) and (j) of this section with the following exception. The narrative report shall be submitted within 10 days of the reviewing doctor's receipt of the request for an addendum opinion or within 10 days of a subsequent physical examination of the patient. (3) The treating doctor or surgeon may communicate with the second opinion doctors to exchange medical information and knowledge; however, communication as described in the Texas Labor Code, sec.418.001(a) (relating to Penalty For Fraudulently Obtaining or Denying Benefits) is prohibited. (m) This section shall be effective for all Form TWCC-63's filed with the commission on or after July 1, 1998. Form TWCC-63's filed prior to July 1, 1998 shall be subject to the rule in effect at the time the form was filed with the Commission. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809117 Susan M. Cory General Counsel Texas Workers' Compensation Commission Effective date: June 30, 1998 Proposal publication date: March 20, 1998 For further information, please call: (512) 440-3972 CHAPTER 134.Benefits-Guidelines for Medical Services, Charges, and Payments SUBCHAPTER K.Treatment Guidelines 28 TAC sec.134.1002 The Texas Workers' Compensation Commission (Commission) adopts an amendment to sec.134.1002, concerning the Upper Extremities Treatment Guideline with changes to the proposed text as published in the February 27, 1998, issue of the Texas Register (23 TexReg 1905). As required by the Government Code, sec.2001.033(1), the Commission's reasoned justification for this rule is set out in this order which includes the preamble, which in turn includes the rule. The reasoned justification is contained in this preamble, and throughout this preamble, including how and why the Commission reached the conclusions it did, why the rule is appropriate, the factual, policy, and legal bases for the rule, a restatement of the factual basis for the rule, a summary of comments received from interested parties, names of those groups and associations who commented and whether they were for or against adoption of the rule, and the reasons why the Commission disagrees with some of the comments and proposals. Changes made to the rule as proposed are in response to public comment received in writing and at a public hearing held on March 4, 1998, and are described in the summary of comments and responses section of this preamble. Changes in the proposed text are found in: Figures (f)(6)(G), (f)(3)(A)-(C), (f)(4)(A)-(C), (f)(5)(A)-(F) and (f)(6)(A)-(C); subsection (h)(4); and subsection (i). In Figure (f)(6)(G), Dupuytren's fracture has been deleted from the ICD-9 Diagnosis Codes. In Figures (f)(6)(G), (f)(3)(A)-(C), (f)(4)(A)-(C), (f)(5)(A)-(F) and (f)(6)(A)-(C) manipulation has been added as a treatment intervention. In subsection (h)(4) a definition of the term "aggravation" has been added. The bibliography in subsection (i) has been updated. The Upper Extremities Treatment Guideline clarifies those services that are reasonable and medically necessary for nonoperative care of common diagnoses of the upper extremities for the injured employees of Texas. The guideline is not to be used as a fixed treatment protocol, but rather identifies a normal course of treatment and reflects typical courses of intervention, while recognizing that there will be injured employees who will require less or more treatment than is outlined. The guideline also acknowledges that in atypical cases, treatment falling outside the guideline will occasionally be necessary. However, those cases that exceed the guideline level of treatment are subject to more careful scrutiny and review and require documentation of the special circumstances that justify the treatment. The guideline does not prescribe the type and frequency of treatment; treatment must be based on patient need and professional judgement. The rule is designed to function as a guideline and is not to be used as the sole reason for denial of treatments and services. The clinical and diagnostic treatment guidelines contained in the rule were developed in conjunction with health care providers and other parties in the workers' compensation system. The guideline is designed to achieve the following goals: (1) to assist all parties with regard to the appropriate treatment and management of upper extremities injuries; (2) to establish elements against which aspects of care can be compared; (3) to establish a guideline to identify clinically acceptable courses of treatment for specific disorders; (4) to establish documentation standards which support the appropriateness of the level of service; and (5) to provide a mechanism of prospective, concurrent, and retrospective review for efficient and effective health care utilization. The adopted guideline promotes quality health care, injury specific treatment and appropriateness of care, by identifying clinically acceptable courses of care for specific upper extremities injuries, and by facilitating communication between all parties to achieve rapid recovery from the effects of an injury. Communication promotes a timely return to modified or full duty work that takes into account the job demands and the functional capabilities of the injured employee. The clinical and diagnostic treatment guidelines contained in this amendment have been developed in conjunction with health care providers and other parties in the workers' compensation system. The Commission's Medical Review Division examined the TWCC medical bills database to extract the most frequently occurring diagnoses between April 1, 1996 through March 31, 1997. The result of this extract indicated that the top 200 diagnostic codes represented 80% of all workers' compensation cases. The remaining 20% of cases were distributed among several hundred codes and thus were not used. Diagnostic codes specific to upper extremities were extracted from the top-200 list and compared to codes currently in the Upper Extremities Treatment Guideline to ensure that the UETG continues to reflect the most common upper extremities diagnoses in the workers' compensation system. This analysis revealed that two diagnostic codes, 726.0 Adhesive Capsulitis and 813.42 Dupuytren's fracture, should be added to the UETG and that all codes currently contained in the UETG continue to occur with enough frequency to remain listed in the guideline. Public comment was received regarding the addition of Dupuytren's fracture. The public comment indicated that despite the appearance in the International Classification of Diseases 9th revision or ICD-9 (Practice Management Information Corporation, 1995) as an upper extremity diagnosis, this diagnosis refers to a fracture in the lower extremities and as such, is not appropriate in the UETG. The specific diagnosis code 813.42, has been deleted from the Fractures table in the adopted UETG because it is included in the more general code 813, Fracture radius and ulna. The Medical Review Division also contacted the Upper Extremities Treatment Guideline workgroup members, composed of members from the following professions: chiropractic, medicine, physical therapy, occupational therapy and osteopathic. The Upper Extremities Treatment Guideline Workgroup assisted in drafting the guideline in 1995. Workgroup members were asked to review the guideline, recommend changes, and give feedback on the guideline's use and effectiveness since it was adopted. The Medical Review Division also conducted focus groups with medical doctors and chiropractors in Austin, Dallas, and Houston to obtain input regarding the guideline's use, effectiveness, and to obtain recommendations for changes. In addition, the Medical Review Division requested and received input from insurance carriers. The recommendations from these groups were presented to the MAC where they either concurred or differed with the recommendations. Where the MAC concurred, the recommendations were included in this revision. The Commission's Medical Review Division, in conjunction with the Commission's Medical Advisory Committee (MAC) and a broad representation from the medical community, have worked together to develop the amendments to the Upper Extremities Treatment Guideline. By statute, the MAC advises the division in developing and administering the medical policies, fee guidelines, and utilization guidelines established under the Texas Labor Code, sec.413.011. The MAC is composed of members from the following fields, appointed by the Commission: public health care facility, private health care facility, a doctor of medicine, a doctor of osteopathic medicine, a chiropractor, a dentist, a physical therapist, a pharmacist, a podiatrist, an occupational therapist, a medical equipment supplier, a registered nurse, a representative of employers, a representative of employees, and two representatives of the general public. A number of adopted amendments make the text portion of the Upper Extremities Treatment Guideline consistent with the recently adopted Lower Extremities Treatment Guideline. Because musculoskeletal injuries of the lower and upper extremities are similar in the workers' compensation system and involve similar treatments, consistency between these two guidelines will minimize confusion and ensure that the guidelines are addressing similar issues in the same way. In addition, a number of adopted amendments are for grammatical and form consistency between the Upper Extremities Treatment Guideline and the Lower Extremities Treatment Guideline and do not substantively alter the guideline. Subsection (a)(1) corrects references to other subsections of the rule in the table of contents. The term "Primary Gatekeeper" has been changed to "Treating Doctor" in subsections (a)(2), and (c) to make it consistent with the Lower Extremities Treatment Guideline and with terms used generally in the workers' compensation system. The July 1, 1998 expiration date has been removed from subsection (b)(1) and that subsection specifies that the guideline applies to treatments provided after the effective date of the rule amendment. The Commission believes that the rule is functioning as intended and therefore removes the expiration date previously included in the guideline. As with all other guidelines, a periodic review of this guideline would be performed to determine its continued utility. In addition, there is no expiration date in any other treatment guideline. Subsections (b)(2) and (3) make the Purpose and Goal statements consistent with Lower Extremities Treatment Guideline. Throughout the adopted rule the term "plan of treatment" has been replaced with "treatment plan" for consistency with the Lower Extremities Treatment Guideline. In a number of places throughout the guideline terms such as "will" and "should" have been changed to "shall". Also passive language has been replaced with active tense. These changes make the Upper Extremities Treatment Guideline more consistent with the Lower Extremities Treatment Guideline and, also, provide additional clarity. In addition, these adopted amendments support the Insurance Code, Article 21.58A, as amended by House Bill 3197, enacted by Acts, 75th Legislature, 1997. Such language changes are found in subsections (d)(1), (d)(2), (e)(1), (e)(2), (e)(3), and (e)(4). The term "chronic disability" in subsection (f)(2)(B) and (C) has been replaced with the term "a chronic condition" because the term "disability" in the Texas Workers' Compensation Act refers to an inability to obtain and retain employment. The term "disability" was used in the guideline to refer to its more general definition and not the Texas Workers' Compensation Act definition. Therefore, it has been replaced to more accurately reflect the original intent of the guideline. Other changes to subsections (b), (c), (d), (e), and (f) were made for clarity of language, consistency with the Lower Extremities Treatment Guideline, and/or grammatical improvement. Functional capacity evaluations (FCE) have been deleted from all primary treatment tables to make the Upper Extremities Treatment Guideline consistent with the Lower Extremities Treatment Guideline. The focus groups and the MAC advised that these FCE's were not appropriate at the primary level of treatment because this evaluation is more appropriate later in the treatment of injuries. In the primary treatment tables under treatment interventions "medication modification" has been replaced with "medications" and all medications are now listed under this heading for clarity and consistency. "Job site analysis" has been moved from the Treatment Intervention section to the Return to Work Issues section. Under the Return to Work Issues section of the primary treatment tables, the sentence "A mild level of severity allows return to work within 0-3 months, with or without modified/transitional work and /or orthoses." was deleted as a result of focus group and MAC recommendations because this statement was redundant and already a part of the definitions of levels of care. This amendment also makes the Upper Extremities Treatment Guideline consistent with the Lower Extremities Treatment Guideline. The secondary treatment tables include the following. Under treatment interventions "medication modification" has been replaced with "medications" and all medications are now listed under this heading for clarity. "Job site analysis" and "functional capacity evaluations" have been moved from the Treatment Intervention Section to Return To Work Issues Section. These amendments were made as a result of MAC and focus group recommendations that these evaluations were not treatments and were more appropriately listed under the Return to Work Issues section. These amendments provide consistency between the Upper Extremities Treatment Guideline and the Lower Extremities Treatment Guideline. An additional item, "Transitional return to work" has been added to Return To Work Issues as a result of MAC recommendations because Transitional return to work is appropriate at this level of care and provides consistency with the Lower Extremities Treatment Guideline. Tertiary treatment tables include the following. Under treatment interventions "medication modification" has been replaced with "medications" and all medications are now listed under this heading for clarity. "Job site analysis" and "functional capacity evaluations" have been moved from the Treatment Intervention Section to Return To Work Issues Section. These amendments were made as a result of MAC and focus group recommendations that these evaluations were not treatments and were more appropriately listed under the Return to Work Issues section. These amendments provide consistency between the Upper Extremities Treatment Guideline and the Lower Extremities Treatment Guideline. An additional item, "Transitional return to work" has been added to Return To Work Issues as a result of MAC recommendations because Transitional return to work is appropriate at this level of care and provides consistency with the Lower Extremities Treatment Guideline. Specific programs were deleted from "Treatment Interventions" because they fit under the general heading of "single or interdisciplinary program". An additional treatment intervention, "Outpatient evaluation and therapy," was listed as a result of MAC recommendations, because this intervention is appropriate for this level of care and makes the Upper Extremities Treatment Guideline consistent with the Lower Extremities Treatment Guideline. Focus groups recommended that manipulation and acupuncture be removed as treatment interventions in the nonoperative treatment tables because they did not see these treatment interventions as reasonable and medically necessary normal courses of treatment for various upper extremities diagnoses. The MAC could not reach consensus on the focus group recommendations. A Commission analysis of the TWCC medical bills database for the period of April 1, 1996 through March 31, 1997 showed that these treatments are used in certain upper extremities diagnoses. Manipulation and acupuncture were proposed to be included in those diagnosis-specific treatment tables where the TWCC database of medical bills showed 5.0% or more of claimants with that diagnosis received these treatments. The 5.0% threshold was chosen because it offers a conservative measure that allows for the inclusion of treatment interventions that occur frequently enough in the workers' compensation system to indicate, in the absence of other data or information, a typical course of intervention. This is the same methodology used in the development of the Lower Extremities Treatment Guideline. This resulted in the proposed removal of manipulation from nine sets of treatment tables in the proposed amendment to the UETG (Hand and Wrist Treatment Tables, 28 TAC sec.134.1002(f)(3)(A)-(C), which include the diagnoses of Tendinitis, Stenosing Tenosynovitis, Musculotendinitis, Musculotendinous Problems; Elbow Treatment Tables, 28 TAC sec.134.1002(f)(4)(A)-(C), which include the diagnoses of Musculotendinitis/ Tendinitis: Lateral Epicondylitis, Medial Epicondylitis, Musculotendinous and Periarticular Problems of the Elbow; Shoulder Treatment Tables, 28 TAC sec.134.1002(f)(5)(A)-(C), which include the diagnoses of Tendinitis: Bicipital, Supraspinatus (rotator cuff), Musculotendinous and Periarticular Problems of the Shoulder; Shoulder Treatment Tables, 28 TAC sec.134.1002(f)(5)(D)-(F), which include the diagnoses of Rotator Cuff: Sprain/Strain, Tear, Shoulder Impingement Syndrome; Upper Extremities Treatment Tables, 28 TAC sec.134.1002(f)(6)(A)-(C), which include the diagnoses of Neuropathy; Upper Extremities, 28 TAC sec.134.1002 (f)(6)(J)-(L), which includes the diagnosis of Avascular Necrosis; Upper Extremities, 28 TAC sec.134.1002 (f)(6)(P)-(R), which includes the diagnosis of Joint Instability; Upper Extremities, 28 TAC sec.134.1002 (f)(6)(V)-(X), which includes the diagnosis of Crush Injuries; and Upper Extremities, 28 TAC sec.134.1002 (f)(6)(Y)-(AA), which includes the diagnosis of Reflex Sympathetic Dystrophy). During the development phase of the Lower Extremities Treatment Guideline, health care providers in the Lower Extremities Treatment Guideline Workgroup and the Commission's Medical Advisory Committee reviewed the guideline and provided input. Neither group reached consensus on the use of manipulation and acupuncture as reasonable and medically necessary normal courses of treatment for various lower extremities diagnoses. An analysis of the TWCC medical bills database for the period April 1, 1996 through March 31, 1997 showed that these treatments are used in certain lower extremities diagnoses. The MAC Chairman asked MAC members to submit scientific, peer-reviewed studies to the Medical Review division to support the MAC members' respective positions on the use of manipulation and acupuncture for treatment of lower extremity diagnoses. The materials received by the Commission were reviewed and evaluated. The materials showed little evidence of peer review and were mostly single-subject case studies. Staff research revealed that single-subject case studies rank low as an accepted method for establishing the efficacy of treatment methods. Manipulation and acupuncture were included in the Lower Extremities Treatment Guideline in those diagnosis-specific treatment tables where the TWCC database of medical bills showed 5.0% or more of claimants with that diagnosis received these treatments. The 5.0% threshold was chosen because it offers a conservative measure that allows for the inclusion of treatment interventions that occur frequently enough in the workers' compensation system to indicate, in the absence of other data or information, a typical course of intervention. Extensive public comment was received regarding the removal of manipulation from nine sets of treatment tables in the proposed amendment to the UETG. Much of the public comment critiqued the methodology used to remove these treatment interventions and contended that because manipulation is widely used by chiropractors and osteopaths, removing manipulation would impinge on the injured employee's right to choose a treating doctor. As a result of the issues raised by commenters, further analysis of the data and evaluation of the materials submitted was conducted concerning the nine sets of treatment tables where manipulation was proposed for deletion. This subsequent analysis included a further breakdown of the data that was originally collected to evaluate the frequency a particular treatment was received for a particular upper extremities injury. In the nine sets of treatment tables where manipulation was proposed for deletion because the 5.0% threshold was not met, further analysis revealed that the injured employees who did receive manipulation, received it from primarily doctors of osteopathic and chiropractic. Osteopaths and chiropractors are included in the list of doctors in the Act from which an injured employee may choose a treating doctor. Therefore, the first part of the additional analysis was performed to give an indication of the frequency of use of manipulation by chiropractors and osteopaths. The results indicated that for the diagnoses contained in five out of the nine sets of treatment tables in question, manipulation was frequently used by these provider types. The other four sets of treatment tables showed inconsistent frequency of use by provider type. The five sets of treatment tables where manipulation was frequently used as a treatment intervention by osteopaths and chiropractors are: Hand and Wrist Treatment Tables, 28 TAC sec.134.1002(f)(3)(A)-(C), which include the diagnoses of Tendinitis, Stenosing Tenosynovitis, Musculotendinitis, Musculotendinous Problems; Elbow Treatment Tables, 28 TAC sec.134.1002(f)(4)(A)-(C), which include the diagnoses of Musculotendinitis/ Tendinitis: Lateral Epicondylitis, Medial Epicondylitis, Musculotendinous and Periarticular Problems of the Elbow; Shoulder Treatment Tables, 28 TAC sec.134.1002(f)(5)(A)-(C), which include the diagnoses of Tendinitis: Bicipital, Supraspinatus (rotator cuff), Musculotendinous and Periarticular Problems of the Shoulder; Shoulder Treatment Tables, 28 TAC sec.134.1002(f)(5)(D)-(F), which include the diagnoses of Rotator Cuff: Sprain/Strain, Tear, Shoulder Impingement Syndrome; and Upper Extremities Treatment Tables, 28 TAC sec.134.1002(f)(6)(A)-(C), which include the diagnoses of Neuropathy. The second part of this analysis consisted of looking at the number of injured employees who received treatment from an osteopath or chiropractor versus those who received any treatment from other treating doctors for upper extremity diagnoses in the nine sets of treatment tables in question. For the diagnoses listed in the five sets of treatment tables (listed previously) 7.0% to 30% of the injured employees who sought treatment for these injuries received treatment from an osteopath or a chiropractor. For the diagnoses listed in the remaining four sets of treatment tables of the nine sets proposed for deletion, only 0% to 4.0% of the injured employees who sought treatment for these injuries received treatment from an osteopath or chiropractor. These four treatment tables are: Upper Extremities, 28 TAC sec.134.1002 (f)(6)(J)-(L), which includes the diagnosis of Avascular Necrosis; Upper Extremities, 28 TAC sec.134.1002 (f)(6)(P)-(R), which includes the diagnosis of Joint Instability; Upper Extremities, 28 TAC sec.134.1002 (f)(6)(V)-(X), which includes the diagnosis of Crush Injuries; and Upper Extremities, 28 TAC sec.134.1002 (f)(6)(Y)-(AA), which includes the diagnosis of Reflex Sympathetic Dystrophy. The next part of the analysis consisted of evaluating the studies submitted during public comment and the Texas Chiropractic Association (TCA) opinion paper, which was based on a survey of Texas chiropractors. The following parameters were developed to evaluate the materials submitted by public commenters and establish whether the materials met the general definition of scientific research: a) does the study seek to test a hypothesis; b) does the study involve multiple subjects, since single subject case studies rank low as an accepted method for establishing the efficacy of treatment methods; and c) does the study address the upper extremity diagnoses in question. The studies submitted support including manipulation in the following treatment tables: Hand and Wrist Treatment Tables, 28 TAC sec.134.1002(f)(3)(A)-(C), which include the diagnoses of Tendinitis, Stenosing Tenosynovitis, Musculotendinitis, Musculotendinous Problems; Elbow Treatment Tables, 28 TAC sec.134.1002(f)(4)(A)-(C), which include the diagnoses of Musculotendinitis/ Tendinitis: Lateral Epicondylitis, Medial Epicondylitis, Musculotendinous and Periarticular Problems of the Elbow; Shoulder Treatment Tables, 28 TAC sec.134.1002(f)(5)(A)-(C), which include the diagnoses of Tendinitis: Bicipital, Supraspinatus (rotator cuff), Musculotendinous and Periarticular Problems of the Shoulder; Shoulder Treatment Tables, 28 TAC sec.134.1002(f)(5)(D)-(F), which include the diagnoses of Rotator Cuff: Sprain/Strain, Tear, Shoulder Impingement Syndrome; and Upper Extremities Treatment Tables, 28 TAC sec.134.1002(f)(6)(A)-(C), which include the diagnoses of Neuropathy. The TCA strongly endorsed manipulation as being an appropriate treatment intervention for the following five treatment tables: Hand and Wrist Treatment Tables, 28 TAC sec.134.1002(f)(3)(A)-(C), which include the diagnoses of Tendinitis, Stenosing Tenosynovitis, Musculotendinitis, Musculotendinous Problems; Elbow Treatment Tables, 28 TAC sec.134.1002(f)(4)(A)-(C), which include the diagnoses of Musculotendinitis/ Tendinitis: Lateral Epicondylitis, Medial Epicondylitis, Musculotendinous and Periarticular Problems of the Elbow; Shoulder Treatment Tables, 28 TAC sec.134.1002(f)(5)(A)-(C), which include the diagnoses of Tendinitis: Bicipital, Supraspinatus (rotator cuff), Musculotendinous and Periarticular Problems of the Shoulder; Shoulder Treatment Tables, 28 TAC sec.134.1002(f)(5)(D)-(F), which include the diagnoses of Rotator Cuff: Sprain/Strain, Tear, Shoulder Impingement Syndrome; and Upper Extremities Treatment Tables, 28 TAC sec.134.1002(f)(6)(A)-(C), which include the diagnoses of Neuropathy. The TCA suggested that manipulation may be an appropriate treatment intervention or was not generally considered appropriate for the following four treatment tables: Upper Extremities, 28 TAC sec.134.1002 (f)(6)(J)-(L), which includes the diagnosis of Avascular Necrosis; Upper Extremities, 28 TAC sec.134.1002 (f)(6)(P)-(R), which includes the diagnosis of Joint Instability; Upper Extremities, 28 TAC sec.134.1002 (f)(6)(V)-(X), which includes the diagnosis of Crush Injuries; and Upper Extremities, 28 TAC sec.134.1002 (f)(6)(Y)-(AA), which includes the diagnosis of Reflex Sympathetic Dystrophy. With the additional analysis and evaluation of the materials submitted during public comment, staff agrees that manipulation is a medically necessary normal course of treatment for Hand and Wrist: Tendinitis, Stenosing Tenosynovitis, Musculotendinitis, Musculotendinous Problems; Musculotendinitis/Tendinitis: Lateral Epicondylitis, Medial Epicondylitis, Musculotendinous and Periarticular Problems of the Elbow; Shoulder: Tendinitis: Bicipital, Supraspinatus (rotator cuff), Musculotendinous and Periarticular Problems of the Shoulder; Rotator Cuff: Sprain/Strain, Tear, Shoulder Impingement Syndrome; and Upper Extremities Treatment Tables, 28 TAC sec.134.1002(f)(6)(A)-(C), which include the diagnoses of Neuropathy, because: manipulation is performed by chiropractors and osteopaths with a consistently higher frequency; these diagnoses have a high patient volume; materials submitted support the use of manipulation as a normal course of treatment for these diagnoses; and the TCA strongly endorses the use of manipulation as an appropriate type of treatment for these diagnoses. Manipulation has therefore not been deleted from the following five treatment tables: Hand and Wrist Treatment Tables, 28 TAC sec.134.1002(f)(3)(A)-(C), which include the diagnoses of Tendinitis, Stenosing Tenosynovitis, Musculotendinitis, Musculotendinous Problems; Elbow Treatment Tables, 28 TAC sec.134.1002(f)(4)(A)- (C), which include the diagnoses of Musculotendinitis/ Tendinitis: Lateral Epicondylitis, Medial Epicondylitis, Musculotendinous and Periarticular Problems of the Elbow; Shoulder Treatment Tables, 28 TAC sec.134.1002(f)(5)(A)-(C), which include the diagnoses of Tendinitis: Bicipital, Supraspinatus (rotator cuff), Musculotendinous and Periarticular Problems of the Shoulder; Shoulder Treatment Tables, 28 TAC sec.134.1002(f)(5)(D)-(F), which include the diagnoses of Rotator Cuff: Sprain/Strain, Tear, Shoulder Impingement Syndrome; and Upper Extremities Treatment Tables, 28 TAC sec.134.1002(f)(6)(A)-(C), which include the diagnoses of Neuropathy. Also, as a result of this further analysis and evaluation of the materials submitted during public comment, it was confirmed that manipulation is not a medically necessary normal course of treatment for avascular necrosis, joint instability, crush injuries and reflex sympathetic dystrophy because: manipulation was not performed by chiropractors and osteopaths with consistently high frequency in these four diagnoses; these diagnoses involve a small number of injured employees (only 42 out of 63,688 injured employees with upper extremity diagnoses received manipulation from a chiropractor or osteopath for these four diagnoses); materials submitted did not support the use of manipulation as a normal course of treatment for these diagnoses; and TCA indicated that manipulation could be an appropriate treatment or was generally not considered an appropriate treatment for these four diagnoses. Therefore, manipulation is deleted from the following four treatment tables: Upper Extremities, 28 TAC sec.134.1002 (f)(6)(J)-(L), which includes the diagnosis of Avascular Necrosis; Upper Extremities, 28 TAC sec.134.1002 (f)(6)(P)-(R), which includes the diagnosis of Joint Instability; Upper Extremities, 28 TAC sec.134.1002 (f)(6)(V)-(X), which includes the diagnosis of Crush Injuries; and Upper Extremities, 28 TAC sec.134.1002 (f)(6)(Y)-(AA), which includes the diagnosis of Reflex Sympathetic Dystrophy. Despite the removal of manipulation from these four treatment tables, manipulation can still be performed as an acceptable treatment modality for the diagnoses listed in those tables, provided that sufficient supporting documentation is submitted by the treating doctor. The diagnosis of 726.0 Adhesive Capsulitis is added to the primary treatment table for Rotator Cuff: Sprain/Strain (figure 13: (f)(5)(D)). This diagnoses appeared in the top 200 most frequent diagnoses in the TWCC medical bills database. The MAC recommended this diagnosis be included in this group of diagnoses because this was the most appropriate section of the guideline to include Adhesive Capsulitis. A tertiary level of care treatment table has been added to the diagnosis of Intra-articular pathology, Traumatic Arthritis (figure 30: (f)(6)(O)) as a result of focus group and MAC recommendations that said this was confusing and inconsistent with the rest of the guideline and to make the Upper Extremities Treatment Guideline consistent with the Lower Extremities Treatment Guideline. Sympathetic blocks have been added to the Diagnostic Procedures section for the primary, secondary, and tertiary treatment tables for Reflect Sympathetic Dystrophy (figures 40, 41, and 42: (f)(6)(Y),(Z), and (AA)) as a result of focus group and MAC recommendation because according to their medical expertise, this is an appropriate diagnostic for this diagnosis. The MAC also recommended that the sympathetic blocks be limited to a maximum of three when used as a diagnostic procedure because based on their expertise three blocks should be sufficient. This is noted in the adopted amendment. Changes to Surgical Indications, subsection (g), are adopted for clarification purposes. These changes were suggested by the M.D. MAC representative who is the only surgeon currently serving on the MAC. The MAC reviewed these changes and recommended them as well. Subsection (g)(1)(A) was amended to read "six week trial of conservative treatment" instead of "four to eight week trial of conservative treatment." Six weeks was recommended as a more medically reasonable conservative time frame. Subsection (g)(1)(C) was deleted because it is included under subsection (g)(1)(A) and therefore duplicative. Subsection (g)(2)(A)(i) was changed from "failure to respond to non-operative treatment program after six to 12 months" to "failure to respond to non- operative treatment program for six months". This change was recommended because an evaluation is medically reasonable at six months of failure to respond to non-operative treatment program. The current wording could allow the non- operative treatment to continue up to 12 months. Subsection (g)(3)(C) was amended to add "No response to six months of conservative care." because the need for surgery should be evaluated if a patient has not responded to six months of conservative care. Changes to the glossary, subsection (h), are adopted for clarification and to make the Upper Extremities Treatment Guideline consistent with the Lower Extremities Treatment Guideline. The addition to subsection (h)(30), the definition of Maximum Medical Improvement is adopted to make that definition consistent with the definition of that term in the Texas Labor Code, sec.401.011(30), following recent legislative revisions. The following terms were added to the glossary: acute, chronic, exacerbation. These additions were made as a result of focus group and MAC recommendations and the definitions were taken from MOSBY'S MEDICAL NURSING AND ALLIED HEALTH DICTIONARY, 3rd ed. TWCC staff evaluated definitions from MOSBY'S MEDICAL NURSING AND ALLIED HEALTH MEDICAL DICTIONARY, 3rd. ed., STEADMAN'S MEDICAL DICTIONARY, 26th ed., DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 27th ed. and TABER'S CYCLOPEDIC MEDICAL DICTIONARY, Edition 17. MOSBY'S definitions were chosen because the definitions described the conditions most accurately and MOSBY'S is a standard, recognized medical source. Public comment received regarding the subsection (h) Glossary indicated that the term "aggravation" should be added to the glossary because there is often confusion between the terms of "exacerbation" and "aggravation." Staff research indicated that an aggravation of a preexisting condition is an injury in its own right. The term exacerbation does not indicate a new injury but an increase in the seriousness of a disease or disorder as marked by greater intensity in the signs or symptoms of the patient being treated. The following definition has been added to the glossary as subsection (h)(4): "aggravation - an act or circumstance that intensifies or makes worse a pre-existing condition". Changes to the Bibliography in subsection (i), are adopted to reflect additional references used for the revision of the Upper Extremities Treatment Guideline. The Commission considered all relevant statutory and policy mandates and objectives and designed this rule to achieve those mandates and objectives, including the following: (1) the establishment of medical policies and guidelines relating to use of medical services by employees who suffer compensable injuries; (2) the establishment of medical policies relating to necessary treatments for injuries which are designed to ensure the quality of medical care and designed to achieve effective medical cost control; (3) the establishment of a program for prospective, concurrent, and retrospective review and resolution of a dispute regarding health care treatment and services; and (4) the establishment of a program for systematic monitoring of the necessity of treatments administered, for detection of practices and patterns by insurance carriers in unreasonably denying authorization of payment, and for increasing the intensity of review for compliance with medical policies or fee guidelines. Amended sec.134.1002 will achieve these objectives by: (1) identifying services that are reasonable and medically necessary for treatment of upper extremity injuries; (2) assisting all parties with regard to the appropriate treatment and management of disorders of the upper extremities in workers' compensation healthcare; (3) establishing a guideline against which aspects of care can be compared; (4) identifying clinically acceptable courses of care for specific upper extremity injuries; (5) establishing documentation standards which support the appropriateness of the level of service for assessment/evaluation and on-going treatment; (6) providing a mechanism for prospective, concurrent, and retrospective review to ensure efficient and effective health care utilization; and (7) establishing normal courses of treatment based on clinical indicators at different levels of healing. In accordance with the statutory objectives and Commission policy, the Upper Extremities Treatment Guideline seeks to balance the need for cost control and review with the need for access to quality medical care by establishing typical courses of treatment, but allowing treatment outside the set parameters with additional documentation of the need for the treatment. Quality of medical care is ensured by reliance upon input from experts and recognized studies in the field of upper extremities treatment, and establishment of normal courses of treatment and treatment parameters for specific upper extremity injuries. The guideline ensures access to health care and that quality care will be available in each individual case by its ground rules that allow for treatment outside the stated parameters. Effective medical cost control is achieved by establishing parameters for eligibility and termination of certain treatments, by setting documentation standards which support the appropriateness of the treatment; by requiring additional documentation for treatment falling outside the guideline's parameter; and by providing that treatments for upper extremities are subject to the Commission's separate rule requiring carrier preauthorization for certain treatments as a prerequisite to payment for the services. The guideline allows for prospective, concurrent, and retrospective review of treatment by: setting standards for eligibility and treatment and setting documentation standards. These standards are to be used by health care providers as a basis for prospective review of possible treatment. The guideline and the documentation requirements should also provide the health care provider with a means to justify treatments when questioned concurrently or retrospectively by an insurance carrier. The guideline and documentation also provide a starting point for carriers in conducting prospective, concurrent, or retrospective review of treatment. The Medical Review Division and the Compliance and Practices Division will use the guideline and documentation as a tool for prospective, concurrent, and retrospective review of treatment, including use in conducting audits of health care providers and insurance carriers, use in the establishment of a program for systematic monitoring of the necessity of treatments administered, and use in medical dispute resolution. The guideline also promotes quality health care, injury specific treatment and appropriateness of care, by facilitating communication between all parties in order to achieve rapid recovery from the effects of an injury. This communication will also promote a timely return to modified or full duty work that takes into account the job demands and the functional capabilities of the injured employee. The rule will promote quality health care and injury specific treatment for injured employees by identifying clinically acceptable courses of care for specific upper extremities injuries. Another benefit will be that the rule will provide a mechanism to monitor the necessity of treatment administered and establish treatment parameters, thus providing greater efficiency in the provision of treatment to the injured employee for upper extremity injury. The number of disputes regarding upper extremities treatments and preauthorization requests should be reduced because the guideline clarifies what is a normal course of treatment and reflects typical courses of intervention. In addition, fewer disputes should result in a reduction of costs to the workers' compensation system and in more timely and appropriate treatment of an injured employee. The public benefit anticipated as a result of enforcing the rule will be the promotion of quality health care and injury specific treatment for injured employees by identifying clinically acceptable courses of care for specific upper extremities injuries. Another benefit will be that the rule will provide a mechanism to monitor the necessity of treatment administered and establish treatment parameters, and guidelines relevant to prospective, concurrent, and retrospective review of treatment, thus providing greater efficiency in the provision of upper extremities treatment to the injured employee. Additional public benefits are those previously listed in this document as the mandates and objectives this guideline and amendments are designed to achieve, and the items previously listed and described in this document as the way in which the Guideline and the adopted amendments achieve those objectives. Comments generally opposing the proposed amendment to sec.134.1002 were received from the following individuals and groups: William L. Evans, D.C., Promenade Chiropractic; J.P. Word, Texas Chiropractic Association; Kevin D. Kanz, D.C., University Chiropractic; Harold D. Lewis, D.O., Family Practice Clinic; Stuart Watts, Academy of Oriental Medicine; Stevan Cordas, D.O.; Don H. Handley, D.C., Handley Chiropractic Center, P.C.; R. Scott Harris, D.C.; Larry R. Montgomery, D.C.; Craig R. Benton, D.C., Benton Chiropractic Clinic; David E. Laga, Apple Chiropractic Clinic; Harold B Tondera, D.C., Tondera Chiropractic; James D. Olin, D.C., Olin Chiropractic; Stacy Warner, D.C., Total Chiropractic & Diagnostic Center, P.A.; Sam Symmank, D.C., Back and Body Chiropractic, Inc.; Brad A. Cudnik, D.C., Pecan Valley Medical Center; Frank L. Means, D.C., Corsicana Chiropractic Clinic; Jeremy Rauhauser, D.C., Bill Rauhauser, D.C., Village Chiropractic Center; P.H. Cordero, D.C.; Bob Glaze, D.C., Texas House of Representatives; Brad Burdin, D.C., Chiropractic Neurology; Randy W. Butler, D.C., Wade Parkhill, C.C., The Butler Clinic; Alexander Camacho, D.C., Lou Saucedo, Jr., D.C., Mark Rayshell, D.C., Jason Brazeal, D.C., Michael C. Walther, Jr., D.C., Toole Ken Theppote, D.C., Patricia Johnson, D.C., Larry W. Parent, D.C., Cary G. Tannery, D.C., Accident & Injury Chiropractic; Robert Groff, D.C., Allen Chiropractic Clinic; R. R. LaVarta, D.C., LaVarta Chiropractic Office; Kenneth M. Perkins, D.C., Texas Chiropractic Association; Kenneth D. Peterson, D.C., Horizon Chiropractic Center; Andre A. Broussard, D.C.; Kevin E. Raef, D.C., Raef Chiropractic Clinic; J. W. Stucki, American Health Choice, Inc.; Carroll V. Guice, D.C.; Mark A. Brown, D.C., Med-Center Chiropractic; Michael A. Rihn, D.C., Rihn Family Care Chiropractic, Inc.; James L. Kirklin, D.C., Kirklin Family Chiropractic; Robert T. Tanella, Tanella Family Chiropractic; Curtis L. Storm, B.S., D.C., Tri-Cities Chiropractic Health Center; Gary W. Meeks, D.C.; William M. Leff, Leff Chiropractic Center; Michael W. Hall, D.C., Hall Chiropractic Neurology Center; Daniel J. Lohr, D.C., Americare Chiropractic Centre; Danny R. Killough, Jr., Parker Chiropractic College; Jon L. Mills, Sr., D.C., Bedford Chiropractic Center, P.C.; Clem C. Martin, D.C.; Joshua T. Acosta, D.C., Acosta Chiropractic; Thomas Klesmit, D.C., Klesmit Chiropractic Offices, P.C.; Terry R. Boucher, Texas Osteopathic Medical Association; Dennis E. Carrier, D.C., Carrier Chiropractic Office; Joanne Wisdom, D.C.; Kirk A. Proffitt, D.C., Chiropractic Health Center; Carl M. Naehritiz, III, D.C., Texas Spine Institute; Travis W. Park, D.C., New Start Chiropractic; Chris G. Dalrymple D.C., Brenham Chiropractic Clinic; P. Michelle Cordero, D.C., FIACA; Gerald L. Guest, D.C., Guest Chiropractic Clinic; Paul H. Heikkinen, D.C., Heikkinen Chiropractic Center; John B. Turner, CPS; Gregory C. Page, D.C., D.A.C.N.B., Arkansas Lane Chiropractic Center; J.P. Word, Texas Chiropractic Association; Christopher Butler, L.Ac., O.M.D.; Natalie J. Englebart, D.C., Alternative Health Solutions Chiropractic Clinic; Nancy J. Ellis, D.C., D.A.B.C.O., Ellis Chiropractic Center; Johann Van Beest, D.C.; John E. Freeman, D.C., D.A.A.P.M., Freeman Chiropractic Clinic; Robert C. Bergeron, D.C., D.A.B.C.O., Denicon Chiropractic Clinic; Barry J. Burleigh, D.C., Paul E. Liechty, American Chiropractic; Jeff Hawkins, D.C., Hawkins Chiropractic; B. Mark Hammonds, D.C., D.A.C.N.B., Behrman Chiropractic; Ron Clark, Texas House of Representatives, Randy L. Atkinson, D.C. Comments neither generally opposing nor generally supporting the proposed amendment to sec.134.1002, but suggesting changes were received from the following individuals and groups: B.E. Leissner, RPh, Pharmacy Rep., Medical Advisory Committee, TWCC; Gini Seely, Healthcare Strategies; Dee Ann Newbold, Texas Acupuncture Association. Summaries of the comments and commission responses are as follows. DENIAL OF PAYMENT. COMMENT: Commenter recommended that the secondary level of care definition be revised to more clearly specify when an injured worker enters the second level of care. The UETG does not include the use of antidepressants in the primary level of care but does include them in the secondary level of care. Commenter suggested that the definition of time frames is vague regarding when primary level of care ends and secondary level of care begins resulting in routine carrier denial of payment for antidepressants. RESPONSE: The Commission disagrees with the need to revise the levels of care definitions. The focus groups and the MAC did not consider the use of antidepressants as a reasonable and medically necessary normal course of treatment for the primary level of care. However, ground rule subsection(e)(1) provides that the Commission's treatment guidelines are not to be used as fixed treatment protocols and that it is recognized that a subset of injured employees will be found to be outside the guidelines' parameters. In addition, ground rule subsection (e)(2)(F) states: "...there may be circumstances in which the injured employee may move between levels of care or utilize interventions in more than one level simultaneously, depending on clinical indicators." Ground rule subsection (e)(2)(H) clarifies that it may not always be necessary to use full durations for any given level of care before advancing to the next. Therefore, with substantiated documentation, antidepressants may be prescribed in any level of care. 5.0% THRESHOLD. COMMENT: Many commenters stated that the rationale given by staff for the 5.0% threshold unfairly discriminates against manipulative treatments because manipulations are not billed by specific area. Some commenters stated that most chiropractors and osteopaths use Evaluation and Management service codes for both spinal and extremity disorders which do not specify body areas. Therefore, a review of billing records to determine the frequency of manipulative treatment for the upper extremity is inappropriate and inherently inaccurate. The commenters asserted that because of this, TWCC does not have valid statistics to determine the frequency of the use of manipulation in the treatment of upper extremity injuries. A commenter expressed concern about which diagnosis codes and CPT codes were utilized to perform the computer analysis. In addition, the commenter states osteopathic manipulative treatment is coded by treatment to specific anatomical areas of the body rather than a specific medical diagnosis. Commenter stated that he follows Commission ground rules to bill for manipulation and that based on those rules he cannot understand how a 5.0% determination can be made. One commenter stated that this methodology unfairly discriminates against health care practitioners who treat a small percent of the total number of injured employees, but may utilize manipulation for a large percent of the patients they treat. RESPONSE: The Commission agrees in part. The analysis of the medical bills database consisted of looking at all medical bills where there was an upper extremity diagnosis for the year of April 1, 1996 through March 31, 1997. Initially only bills where an upper extremity diagnosis appeared as the primary diagnosis were considered. Subsequently, bills were considered where an upper extremity diagnosis appeared anywhere in the diagnosis field. The next part of the analysis consisted of counting all bills that had any of the following PHYSICIANS' CURRENT PROCEDURAL TERMINOLOGY (CPT) (copyright 1994 American Medical Association) manipulation codes: 97260--manipulation (cervical , thoracic, lumbosacral, sacroiliac, hand, wrist) performed by physician, one area; 97261--manipulation each additional area; 97265--joint mobilization, one or more areas (peripheral or spinal); 98925--osteopathic manipulative treatment (OMT), one to two body regions; 98926--OMT, three to four body regions, 98927--OMT, five to six body regions; 98928--OMT seven to eight body regions; 98929--OMT nine to ten body regions; and any CPT code with an "MP" modifier which indicates manipulation. The analysis, therefore, included all manipulation codes in the calculation of the 5.0% threshold. This further validates the accuracy of the data used to determine the frequency of manipulation in upper extremity diagnoses. Further analysis of the data and evaluation of the materials submitted was conducted concerning the nine sets of treatment tables where manipulation was proposed for deletion. This subsequent analysis included a further breakdown of the data that was originally collected to evaluate the frequency a particular treatment was received for a particular upper extremities injury. In the nine sets of treatment tables where manipulation was proposed for deletion because the 5.0% threshold was not met, further analysis revealed that the injured employees who did receive manipulation, received it from primarily doctors of osteopathic and chiropractic. Osteopaths and chiropractors are included in the list of doctors in the Act from which an injured employee may choose a treating doctor. Therefore, the first part of the additional analysis was performed to give an indication of the frequency of use of manipulation by chiropractors and osteopaths. The results indicated that for the diagnoses contained in five out of the nine sets of treatment tables in question, manipulation was frequently used by these provider types. The other four sets of treatment tables showed inconsistent frequency of use by provider type. The five sets of treatment tables where manipulation was frequently used as a treatment intervention by osteopaths and chiropractors are: Hand and Wrist Treatment Tables, 28 TAC sec.134.1002(f)(3)(A)-(C), which include the diagnoses of Tendinitis, Stenosing Tenosynovitis, Musculotendinitis, Musculotendinous Problems; Elbow Treatment Tables, 28 TAC sec.134.1002(f)(4)(A)-(C), which include the diagnoses of Musculotendinitis/ Tendinitis: Lateral Epicondylitis, Medial Epicondylitis, Musculotendinous and Periarticular Problems of the Elbow; Shoulder Treatment Tables, 28 TAC sec.134.1002(f)(5)(A)-(C), which include the diagnoses of Tendinitis: Bicipital, Supraspinatus (rotator cuff), Musculotendinous and Periarticular Problems of the Shoulder; Shoulder Treatment Tables, 28 TAC sec.134.1002(f)(5)(D)-(F), which include the diagnoses of Rotator Cuff: Sprain/Strain, Tear, Shoulder Impingement Syndrome; and Upper Extremities Treatment Tables, 28 TAC sec.134.1002(f)(6)(A)-(C), which include the diagnoses of Neuropathy. The second part of this analysis consisted of looking at the number of injured employees who received treatment from an osteopath or chiropractor versus those who received any treatment from other treating doctors for upper extremity diagnoses in the nine sets of treatment tables in question. For the diagnoses listed in the five sets of treatment tables (listed previously) 7.0% to 30% of the injured employees who sought treatment for these injuries received treatment from an osteopath or a chiropractor. For the diagnoses listed in the remaining four sets of treatment tables of the nine sets proposed for deletion, only 0% to 4.0% of the injured employees who sought treatment for these injuries received treatment from an osteopath or chiropractor. These four treatment tables are: Upper Extremities, 28 TAC sec.134.1002 (f)(6)(J)-(L), which includes the diagnosis of Avascular Necrosis; Upper Extremities, 28 TAC sec.134.1002 (f)(6)(P)-(R), which includes the diagnosis of Joint Instability; Upper Extremities, 28 TAC sec.134.1002 (f)(6)(V)-(X), which includes the diagnosis of Crush Injuries; and Upper Extremities, 28 TAC sec.134.1002 (f)(6)(Y)-(AA), which includes the diagnosis of Reflex Sympathetic Dystrophy. The next part of the analysis consisted of evaluating the studies submitted during public comment and the Texas Chiropractic Association (TCA) opinion paper, which was based on a survey of Texas chiropractors. The following parameters were developed to evaluate the materials submitted by public commenters and establish whether the materials met the general definition of scientific research: a) does the study seek to test a hypothesis; b) does the study involve multiple subjects, since single subject case studies rank low as an accepted method for establishing the efficacy of treatment methods; and c) does the study address the upper extremity diagnoses in question. The studies submitted support including manipulation in the following treatment tables: Hand and Wrist Treatment Tables, 28 TAC sec.134.1002(f)(3)(A)-(C), which include the diagnoses of Tendinitis, Stenosing Tenosynovitis, Musculotendinitis, Musculotendinous Problems; Elbow Treatment Tables, 28 TAC sec.134.1002(f)(4)(A)-(C), which include the diagnoses of Musculotendinitis/ Tendinitis: Lateral Epicondylitis, Medial Epicondylitis, Musculotendinous and Periarticular Problems of the Elbow; Shoulder Treatment Tables, 28 TAC sec.134.1002(f)(5)(A)-(C), which include the diagnoses of Tendinitis: Bicipital, Supraspinatus (rotator cuff), Musculotendinous and Periarticular Problems of the Shoulder; Shoulder Treatment Tables, 28 TAC sec.134.1002(f)(5)(D)-(F), which include the diagnoses of Rotator Cuff: Sprain/Strain, Tear, Shoulder Impingement Syndrome; and Upper Extremities Treatment Tables, 28 TAC sec.134.1002(f)(6)(A)-(C), which include the diagnoses of Neuropathy. The TCA strongly endorsed manipulation as being an appropriate treatment intervention for the following five treatment tables: Hand and Wrist Treatment Tables, 28 TAC sec.134.1002(f)(3)(A)-(C), which include the diagnoses of Tendinitis, Stenosing Tenosynovitis, Musculotendinitis, Musculotendinous Problems; Elbow Treatment Tables, 28 TAC sec.134.1002(f)(4)(A)-(C), which include the diagnoses of Musculotendinitis/ Tendinitis: Lateral Epicondylitis, Medial Epicondylitis, Musculotendinous and Periarticular Problems of the Elbow; Shoulder Treatment Tables, 28 TAC sec.134.1002(f)(5)(A)-(C), which include the diagnoses of Tendinitis: Bicipital, Supraspinatus (rotator cuff), Musculotendinous and Periarticular Problems of the Shoulder; Shoulder Treatment Tables, 28 TAC sec.134.1002(f)(5)(D)-(F), which include the diagnoses of Rotator Cuff: Sprain/Strain, Tear, Shoulder Impingement Syndrome; and Upper Extremities Treatment Tables, 28 TAC sec.134.1002(f)(6)(A)-(C), which include the diagnoses of Neuropathy. The TCA suggested that manipulation could be an appropriate treatment intervention or was not generally considered appropriate for the following four treatment tables: Upper Extremities, 28 TAC sec.134.1002 (f)(6)(J)-(L), which includes the diagnosis of Avascular Necrosis; Upper Extremities, 28 TAC sec.134.1002 (f)(6)(P)-(R), which includes the diagnosis of Joint Instability; Upper Extremities, 28 TAC sec.134.1002 (f)(6)(V)-(X), which includes the diagnosis of Crush Injuries; and Upper Extremities, 28 TAC sec.134.1002 (f)(6)(Y)-(AA), which includes the diagnosis of Reflex Sympathetic Dystrophy. With the additional analysis and evaluation of the materials submitted during public comment, The Commission agrees that manipulation is a medically necessary normal course of treatment for Hand and Wrist: Tendinitis, Stenosing Tenosynovitis, Musculotendinitis, Musculotendinous Problems; Musculotendinitis/Tendinitis: Lateral Epicondylitis, Medial Epicondylitis, Musculotendinous and Periarticular Problems of the Elbow; Shoulder: Tendinitis: Bicipital, Supraspinatus (rotator cuff), Musculotendinous and Periarticular Problems of the Shoulder; Rotator Cuff: Sprain/Strain, Tear, Shoulder Impingement Syndrome; and Upper Extremities Treatment Tables, 28 TAC sec.134.1002(f)(6)(A)-(C), which include the diagnoses of Neuropathy, because: manipulation is performed by chiropractors and osteopaths with a consistently higher frequency; these diagnoses have a high patient volume; materials submitted support the use of manipulation as a normal course of treatment for these diagnoses; and the TCA strongly endorses the use of manipulation as an appropriate type of treatment for these diagnoses. Manipulation has therefore not been deleted from the following five treatment tables: Hand and Wrist Treatment Tables, 28 TAC sec.134.1002(f)(3)(A)-(C), which include the diagnoses of Tendinitis, Stenosing Tenosynovitis, Musculotendinitis, Musculotendinous Problems; Elbow Treatment Tables, 28 TAC sec.134.1002(f)(4)(A)- (C), which include the diagnoses of Musculotendinitis/ Tendinitis: Lateral Epicondylitis, Medial Epicondylitis, Musculotendinous and Periarticular Problems of the Elbow; Shoulder Treatment Tables, 28 TAC sec.134.1002(f)(5)(A)-(C), which include the diagnoses of Tendinitis: Bicipital, Supraspinatus (rotator cuff), Musculotendinous and Periarticular Problems of the Shoulder; Shoulder Treatment Tables, 28 TAC sec.134.1002(f)(5)(D)-(F), which include the diagnoses of Rotator Cuff: Sprain/Strain, Tear, Shoulder Impingement Syndrome; and Upper Extremities Treatment Tables, 28 TAC sec.134.1002(f)(6)(A)-(C), which include the diagnoses of Neuropathy. Also, as a result of this further analysis and evaluation of the materials submitted during public comment, it was confirmed that manipulation is not a medically necessary normal course of treatment for avascular necrosis, joint instability, crush injuries and reflex sympathetic dystrophy because: manipulation was not performed by chiropractors and osteopaths with consistently high frequency in these four diagnoses; these diagnoses involve low number of injured employees (42 out of 63,688 claimants with upper extremity diagnoses who received manipulation from a chiropractor or osteopath); materials submitted did not support the use of manipulation as a normal course of treatment for these diagnoses; and TCA indicated that manipulation could be an appropriate treatment or was generally not considered an appropriate treatment for these four diagnoses. Therefore, manipulation is deleted from the following four treatment tables: Upper Extremities, 28 TAC sec.134.1002 (f)(6)(J)-(L), which includes the diagnosis of Avascular Necrosis; Upper Extremities, 28 TAC sec.134.1002 (f)(6)(P)-(R), which includes the diagnosis of Joint Instability; Upper Extremities, 28 TAC sec.134.1002 (f)(6)(V)-(X), which includes the diagnosis of Crush Injuries; and Upper Extremities, 28 TAC sec.134.1002 (f)(6)(Y)-(AA), which includes the diagnosis of Reflex Sympathetic Dystrophy. Despite the removal of manipulation from these four treatment tables, manipulation can still be performed as an acceptable treatment modality for the diagnoses listed in those tables, provided that sufficient supporting documentation is submitted by the treating doctor. (See subsection (e) Ground Rules) COMMENT: Some commenters stated that manipulation is often included in the office visit charge when performed by a doctor of chiropractic and a modifier is used to show that manipulation was performed rather than a separate CPT code. The commenters therefore contended that the billing record review is faulty. RESPONSE: The Commission disagrees. The billing record review is not faulty because all CPT codes with an "MP" modifier, which indicates that the injured employee received manipulation, were included in the calculation of the 5.0% threshold. COMMENT: Commenters critiqued the 5.0% threshold as an absurd and an arbitrary methodology that has no justification. RESPONSE: The Commission disagrees. The purpose of the UETG is to identify a course of treatment that is a reasonable and medically necessary normal course of treatment. Due to the differences of opinion regarding manipulations among focus groups and MAC members, staff analyzed the TWCC medical bills database to determine the frequency with which manipulation is used for upper extremity diagnoses. The 5.0% threshold is a conservative measure because it allows for treatments that appear in at least 5.0% of the injured employee population to be included as a medically necessary normal course of treatment. The 5.0% threshold allows for the inclusion of treatment interventions that occur frequently enough in the workers' compensation system to indicate, in the absence of other data, a typical course of treatment. COMMENT: Commenter stated that the reason acupuncture did not meet the 5.0% threshold is because practitioners are routinely denied payment for acupuncture as not medically necessary. Commenter stated that two-thirds of his profession are Asian-Americans with a poor mastery of the English language and when denied payment, they do not pursue payment due to their inability to argue with the insurance carrier. In his own experience as an acupuncturist the commenter states that he routinely must threaten to complain to TWCC in order to get his bills paid. Commenter suggested that this is why less than 5.0% of claimants receive acupuncture treatment. RESPONSE: The Commission disagrees. An objective of the UETG is to establish a typical or normal course of treatment for upper extremity diagnoses. Through further analysis of the TWCC medical bills database, it was determined that acupuncture as a treatment intervention was utilized in less than 1.0% of all injured employees with upper extremity diagnoses. The analysis included all bills for acupuncture whether or not they were reimbursed by insurance carriers. Since acupuncture was utilized in less than 1.0% of injured employees, acupuncture was not identified as a typical or normal course of treatment. Despite the removal of acupuncture from the treatment tables, acupuncture can still be performed as an acceptable treatment modality for the diagnoses listed in those tables, provided that sufficient supporting documentation is submitted by the treating doctor. (See subsection (e) Ground Rules) COMMENT: Some commenters questioned that the 5.0% threshold was only applied to manipulation and acupuncture and not to other treatments in the tables. Commenters contended that this application discriminates against osteopaths and chiropractors because medical doctors far outnumber the osteopaths and chiropractors combined. Another commenter contended that the 5.0% threshold is an attempt to limit the use of manipulative treatment because this treatment is not understood. Commenter added that most medical procedures performed in a hospital have not passed a scientific investigation query, but are still accepted as standard procedures. RESPONSE: The Commission disagrees. Focus groups recommended that manipulation and acupuncture be removed as treatment intervention in all nonoperative treatment tables because they did not see these treatment interventions as reasonable and medically necessary normal courses of treatment. The focus groups' recommendations regarding manipulative treatment were brought before the MAC, but the MAC members did not reach consensus on the focus groups' recommendations. As a result, the Commission staff further analyzed the TWCC medical bills database for the period of April 1, 1996 to March 31, 1997 to determine the frequency of the use of manipulation in the treatment of certain upper extremity diagnoses. In the proposed amendments, manipulation was included in those diagnosis-specific treatment tables where the TWCC database showed 5.0% or more of injured employees with that diagnosis received manipulation. Acupuncture did not reach the 5.0% threshold and therefore is not included in any of the treatment tables. The 5.0% threshold is a conservative measure because it allows for treatments that appear in at least 5.0% of the injured employee population to be included as a medically necessary normal course of treatment. The 5.0% threshold allows for the inclusion of treatment interventions that occur frequently enough in the workers' compensation system to indicate, in the absence of other data or information, a typical course of treatment. Due to public comment concerning the use of the 5.0% threshold for inclusion of manipulation in upper extremity treatment tables, an additional analysis was performed to determine how many injured employees, who were being treated by chiropractors and osteopaths, received manipulations for treatment of the diagnoses in question. A full description of this analysis and results is contained elsewhere in this preamble. COMMENT: Commenter stated that when TWCC staff deleted manipulation from treatment tables because of the 5.0% threshold, they did not determine what is actually medically necessary or cost-effective. By doing so, commenter believes TWCC does a disservice to the employees and the employers of Texas. RESPONSE: The Commission disagrees. The UETG clarifies services that are reasonable and medically necessary for non-operative treatment of upper extremity injuries for the injured employees of Texas. The 5.0% threshold allows for the inclusion of treatment interventions that occur frequently enough in the workers' compensation system to indicate, in the absence of other data or information, a typical course of treatment. This threshold serves the majority of the injured employee population seeking medical treatment by allowing treatments that appear in at least 5.0% of the injured employee population to be included as a medically necessary typical course of treatment. As described in detail previously in response to public comment, an additional analysis has been performed based on the differences in treatment of upper extremity diagnoses by treating doctors of different licensure. As a result of this additional analysis, manipulation has been placed back in five sets of the treatment tables where the proposed amendment would have deleted them. COMMENT: Commenter opined that if the workers' compensation system did not pay over 5.0% of the medical budget for manipulation this should be used as a reason to leave manipulation in the treatment table. RESPONSE: The Commission disagrees. The TWCC medical bills database included all treatments rendered to the injured employee with upper extremity diagnoses. The database included all bills for these treatments, whether or not they were reimbursed by the insurance carrier. The analysis involved a comparison of how frequently manipulation was used as a treatment for upper extremity injuries, not an analysis of how much has been reimbursed to providers for manipulative treatment. COMMENT: Commenter states that the statute does not establish only treatments that exceed 5.0% to be included in the treatment guidelines. The commenter felt that TWCC is violating the injured worker's freedom of choice for treating doctor by eliminating payment for treatments provided by certain providers. RESPONSE: The Commission disagrees. The Commission values the injured employee's right to choose his/her treating doctor. Treatment guidelines do not eliminate payment for treatments. The Upper Extremities Treatment Guideline clarifies those services that are reasonable and medically necessary for nonoperative care of the upper extremities for the injured employees of Texas. The guideline is not to be used as a fixed treatment protocol, but rather identifies a normal course of treatment and reflects typical courses of intervention, while recognizing that there will be injured employees who will require less or more treatment than is outlined. The guideline also acknowledges that in atypical cases, treatment falling outside the guideline will occasionally be necessary. However, those cases that exceed the guideline level of treatment are subject to more careful scrutiny and review and require documentation of the special circumstances that justify the treatment. The guideline does not prescribe the type and frequency of treatment; treatment must be based on patient need and professional judgement. The rule is designed to function as a guideline and is not to be used as the sole reason for denial of treatments and services. The Commission considered all relevant statutory and policy mandates and objectives and designed this rule to achieve those mandates and objectives, including the following: (1) the establishment of medical policies and guidelines relating to use of medical services by employees who suffer compensable injuries; (2) the establishment of medical policies relating to necessary treatments for injuries which are designed to ensure the quality of medical care and designed to achieve effective medical cost control; (3) the establishment of a program for prospective, concurrent, and retrospective review and resolution of a dispute regarding health care treatment and services; and (4) the establishment of a program for systematic monitoring of the necessity of treatments administered, for detection of practices and patterns by insurance carriers in unreasonably denying authorization of payment, and for increasing the intensity of review for compliance with medical policies or fee guidelines. Amended sec.134.1002 will achieve these objectives by: (1) identifying services that are reasonable and medically necessary for treatment of upper extremity injuries; (2)assisting all parties with regard to the appropriate treatment and management of disorders of the upper extremities in workers' compensation healthcare; (3) establishing a guideline against which aspects of care can be compared; (4) identifying clinically acceptable courses of care for specific upper extremity injuries; (5) establishing documentation standards which support the appropriateness of the level of service for assessment/evaluation and on-going treatment; (6) providing a mechanism for prospective, concurrent, and retrospective review to ensure efficient and effective health care utilization; and (7) establishing normal courses of treatment based on clinical indicators at different levels of healing. ACUPUNCTURE. ACUPUNCTURE. COMMENT: Some commenters opposed the removal of acupuncture from the UETG treatment tables. Commenter stated that the National Institute of Health is conducting studies which have revealed that much is unknown and misunderstood about acupuncture, but it is consistently effective in treating a wide range of disorders. The commenter noted that pain syndromes are especially responsive to acupuncture and that restricting access to this treatment method will not serve the public interest. Another commenter stated that acupuncture is a new field and practitioners are still learning how to utilize workers' compensation, how to file claims, and how to follow up with clients that need acupuncture. Commenter supported leaving both acupuncture and chiropractic treatments in the UETG because they are effective and practical for disorders of the upper body. Commenters submitted documents in support of this position. Commenter felt that deletion of acupuncture based on the frequency of its use for upper extremity diagnoses was a convoluted way to determine a therapy's effectiveness. The commenter stated that prejudices exist in the insurance industry against osteopaths, chiropractors and acupuncturists. Commenter further contended that because alternative treatments are inexpensive alternatives to surgery and expensive therapy, surgeons and physicians feel threatened and do everything possible to discredit alternative therapies in spite of scientific research that acupuncture is effective. RESPONSE: The Commission disagrees that acupuncture should not be deleted from the five treatment tables where it is listed in the current UETG. An objective of the UETG is to establish a typical or normal course of treatment for upper extremity diagnoses. Based on additional analysis of the TWCC medical bills database, the Commission concluded that acupuncture as a treatment intervention was utilized in less than 1.0% of all claims submitted with upper extremity diagnoses. Therefore, acupuncture was not identified as a typical or normal course of treatment. Commenters submitted materials in support of keeping acupuncture in the five primary treatment tables where it is proposed for deletion. During development of the Lower Extremities Treatment Guideline, the MAC recommended that scientific studies regarding treatments be considered. Similar studies were sought for consideration regarding treatments for the upper extremities. Scientific research generally should seek to test a hypothesis and have multiple subjects. The following parameters were developed to evaluate the materials submitted by public commenters and establish whether the materials met the general definition of scientific research: a) does the study seek to test a hypothesis; b) does the study involve multiple subjects, since single subject case studies rank low as an accepted method for establishing the efficacy of treatment methods; and c) does the study address the upper extremity diagnosis in question. Four documents were submitted during the public comment period for the UETG. After applying the parameters, one of these documents was considered an applicable scientific study. The remainder did not meet the criteria established for the following reasons: one was the NATIONAL INSTITUTES OF HEALTH (NIH) CONSENSUS DEVELOPMENT CONFERENCE STATEMENT ON ACUPUNCTURE (November 3-5, 1997). This document was an independent report of the panel and not a policy statement of the NIH or the Federal Government; one was a single subject case study; and one was an article that discussed how to treat various diagnoses with acupuncture. As a result of the additional analysis and evaluation of the materials submitted during public comment, it was confirmed that acupuncture is not a medically necessary course of treatment for: Hand and Wrist Treatment Tables, 28 TAC sec.134.1002(f)(3)(A)-(C), which include the diagnoses of Tendinitis, Stenosing Tenosynovitis, Musculotendinitis, Musculotendinous Problems; Elbow Treatment Tables, 28 TAC sec.134.1002(f)(4)(A)-(C), which include the diagnoses of Musculotendinitis/Tendinitis: Lateral Epicondylitis, Medial Epicondylitis, Musculotendinous and Periarticular Problems of the Elbow; Elbow Treatment Tables, 28 TAC sec.134.1002(f)(4)(D)-(F), which include the diagnoses of Olecranon Bursitis and Olecranon Impingment; Shoulder Treatment Tables, 28 TAC sec.134.1002(f)(5)(A)-(C), which include the diagnoses of Tendinitis: Bicipital, Supraspinatus (rotator cuff), Musculotendinous and Periarticular Problems of the Shoulder; and Upper Extremities Treatment Tables, 28 TAC sec.134.1002(f)(6)(A)- (C), which include the diagnosis of Neuropathy. Acupuncture as a treatment intervention was utilized in less than 1.0% of all claims submitted with upper extremity diagnoses. In addition, although materials submitted in support of the use of acupuncture for shoulder conditions did meet the criteria established for scientific studies, it was not sufficient to justify adding acupuncture to the treatment tables as a normal course of treatment due to the small number of injured employees who receive acupuncture treatment for upper extremities. AGGRAVATION. COMMENT: Commenter recommended that the term "aggravation" be added to the glossary because there is often confusion between the terms of "exacerbation" and "aggravation." The commenter suggested the definition for aggravation be "an act or circumstance that intensifies or makes worse a pre-existing condition." RESPONSE: The Commission agrees to add the term aggravation to the glossary. Staff research indicated that an aggravation of a preexisting condition is an injury in its own right. The term exacerbation does not indicate a new injury but an increase in the seriousness of a disease or disorder as marked by greater intensity in the signs or symptoms of the patient being treated. The following definition has been added to the glossary as subsection (h)(4): "aggravation - an act or circumstance that intensifies or makes worse a pre-existing condition." DISPUTES. COMMENT: Commenter stated that the proposed changes to the UETG will result in dramatic increases in medical disputes despite the Commission's statement that disputes should go down. Commenter believed that osteopaths and chiropractors will be responsible for the increase in disputes due to the proposed deletion of manipulation from the UETG. Commenter added that in "real life" the provider will spend an inordinate amount of time trying to document and fight the insurance carrier for payment because the treatment is not listed in the guideline. RESPONSE: The Commission disagrees. Manipulation has not been removed from all treatment tables. See detailed discussion elsewhere in this preamble regarding the analysis of manipulation which resulted in its return to five of the nine sets of treatment tables from which it was proposed to be removed. In four of the nine sets of treatment tables manipulation continues to be deleted. Due to the very low volume of injured employees receiving manipulation or acupuncture treatment for these diagnoses removal should not result in an increase in disputes. LANGUAGE CHANGES. COMMENT: Commenter recommended amending subsection (e)(4) relating to Documentation Requirements for Unrelated or Intercurrent Illness. The commenter suggested adding: "if an injured worker has a condition, such as Diabetes, that impacts surgery or the treatment, services necessary to stabilize the patient are reimbursable as provided by the Medical Fee Guideline. The health care practitioner should clearly document the rationale for such treatment and its relation to the compensable injury." Another commenter suggested changing subsection (d)(2)(E) so it reads as follows: " . . . If a healthcare provider's treatment deviates from this guideline, specific documentation criteria developed by the TWCC would be required to clearly delineate the need for the treatment. " RESPONSE: The Commission disagrees with amending subsection (e)(4) relating to Documentation Requirements for Unrelated or Intercurrent Illness because the current language is sufficient in allowing for this treatment and further amendment is not necessary. The Commission disagrees with the wording change to subsection (d)(2)(E) because specific documentation criteria developed by the Commission is referenced under subsection (e)(3) General Documentation Requirements and subsection (e)(4) Documentation Requirements for Unrelated or Intercurrent Illness. DUPUYTREN'S. COMMENT: Commenter suggested a wording change in the Fractures treatment tables [figure 22: (f)(6)(G)] from Dupuytren's fracture to Dupuytren's contracture because Dupuytren's fracture is a lower extremity fracture involving the ankle. Dupuytren's contracture should be added as an upper extremity diagnosis listed under soft tissue or tendon problems. RESPONSE: The Commission agrees in part. The specific diagnosis code 813.42, Dupuytren's fracture, radius, will be deleted from the Fractures table because it is included in the more general code 813, Fracture, radius and ulna. Dupuytren's contracture will not be added as an upper extremity diagnosis. Research and public comment shows this diagnosis is mostly associated with the lower extremities despite its appearance in the ICD-9 as an upper extremity diagnosis. FCEs. COMMENT: Commenter suggested that functional capacity evaluations should be left unchanged because these evaluations are used to determine a patient's progress from one stage of care to another. Another commenter supported the move of functional capacity evaluations from Treatment Interventions to Return To Work Issues. Commenter stated that this was appropriate because functional capacity evaluation is an evaluation tool not a method of treatment. RESPONSE: The Commission agrees that FCEs should be moved to the Return to Work Issues section in the Secondary and Tertiary Levels of Care Tables. The Commission disagrees that FCEs should remain unchanged because the focus groups, and the MAC recommended that this evaluation tool was inappropriate in the Primary Level of Care; and, the MAC recommended that FCEs should be moved from the Treatment Interventions section to the Return to Work Issues section. FISCAL. COMMENT: Commenter disagreed with the statement that a minimal fiscal impact will result from the deletion of acupuncture and manipulation from the UETG. Commenter added that osteopathic physicians who see a large number of TWCC patients will experience a substantial negative financial impact because of the removal of osteopathic manipulative treatment (OMT) from the UETG. Commenter further stated that osteopathic physicians will also have increased costs because they will need to hire additional employees to provide the additional documentation required to provide OMT to injured workers. Another commenter expressed that the proposed deletion of manipulative and acupuncture treatment will steer patients away from potentially useful treatment and insurance administrators will not view manipulation or acupuncture as alternatives. The commenter further stated that nationwide the sick and injured are increasingly utilizing alternative health care as their primary healing method. The commenter recommended that the Commission adopt the attitude of the general public: we are responsible for our own health care decisions, allow us to choose how we are healed. RESPONSE: The Commission disagrees. Manipulation has not been removed from all treatment tables. See detailed discussion elsewhere in this preamble regarding the analysis of manipulation which resulted in its return to five of the nine sets of treatment tables from which it was proposed to be removed. As a result, the financial impact should not be as substantial as predicted by commenter. Manipulation is being removed from four treatment tables which have a very low volume of injured employee utilization. Physicians should not therefore experience an increase in documenting the need for manipulation. The Upper Extremities Treatment Guideline clarifies those services that are reasonable and medically necessary for nonoperative care of the upper extremities for the injured employees of Texas. The guideline is not to be used as a fixed treatment protocol, but rather identifies a normal course of treatment and reflects typical courses of intervention, while recognizing that there will be injured employees who will require less or more treatment than is outlined. The guideline also acknowledges that in atypical cases, treatment falling outside the guideline will occasionally be necessary. However, those cases that exceed the guideline level of treatment are subject to more careful scrutiny and review and require documentation of the special circumstances that justify the treatment. The guideline does not prescribe the type and frequency of treatment nor does it limit the injured employee's choice of treating doctor; treatment must be based on patient need and professional judgement. The rule is designed to function as a guideline and is not to be used as the sole reason for denial of treatments and services. Despite the removal of manipulation from these four treatment tables, manipulation can still be performed as an acceptable treatment modality for the diagnoses listed in those tables, provided that sufficient supporting documentation is submitted by the treating doctor. (See subsection (e) Ground Rules.) FOCUS GROUPS. COMMENT: Some commenters were dismayed that members of the osteopathic profession were not selected to participate in the UETG focus groups and were not able to present evidence. The commenter stated that the selection of two professions for input seems to discriminate against the other health groups that are represented on the Medical Advisory Committee. The commenter further elaborated that recommendations to remove manipulation from treatment tables came from allopathic focus groups that have no training in manipulation. The commenter felt this was in violation of antitrust laws and that the Commission is assisting the medical profession to eliminate chiropractic and osteopathic medicine providers from the TWCC system. Another commenter suggested that the Commission has ignored the findings and recommendations of the Medical Advisory Committee in favor of focus groups. The commenter further pointed out that focus groups were held in certain locations, with certain individuals and professions invited, and the Commission reports the findings of these focus groups as gospel. The commenter described this course of action as "flies in the face the Texas Legislature purposed for the MAC." The commenter accused the Commission of choosing people of like opinion to have preconceived notions validated which led to the elimination of manipulation from the UETG and the Lower Extremities Treatment Guideline. RESPONSE: The Commission disagrees. The Medical Review Division collects information from many parties in the workers' compensation system in reviewing guidelines. The revision of the UETG included contacting the original UETG workgroup members, who assisted in drafting the 1996 UETG. They were asked to review the 1996 UETG, recommend changes and give written feedback on the guideline's use and effectiveness. The workgroup was composed of members from the following professions: chiropractic, medicine, physical therapy, occupational therapy and osteopathic. The osteopathic member of the original workgroup declined to review the 1996 UETG and declined to recommend changes and give feedback. In addition insurance carriers were also asked to review the UETG and give written feedback on the guideline's use and effectiveness. Focus groups were held with chiropractic and medical doctors in Dallas, Houston and Austin. Commission resources did not allow for focus groups in additional cities or with additional provider types. Summaries of comments from original workgroup members, insurance carriers and focus groups were presented to the MAC. The MAC reviewed and discussed summaries of comments and made recommendations for the revision of the UETG. The MAC has osteopathic physician representation. In addition many osteopathic physicians have contributed to the revision of the UETG by submitting public comment during the public comment period. MAC. COMMENT: Many commenters stated they understood that the Medical Advisory Committee voted not to enact the proposed guidelines and that despite this, Commission staff continues to recommend the adoption of the rule. Some commenters stated that they understood the Medical Advisory Committee voted unanimously to keep manipulation of the extremities in place as an accepted method of treatment. A commenter further stated that he does not understand why the Commission ignores the MAC when they have the best interest of the people of Texas at heart. A commenter noted that this is not an effective cost-containment measure. Another commenter noted that the UETG proposal preamble references the M.D. MAC representative as making a recommendation, but that the osteopathic and chiropractic MAC representatives are not referenced as making recommendations on manipulation. The commenter questioned whether one MAC member has more power to change a proposed rule than another MAC member does. RESPONSE: The Commission disagrees. The MAC needed more time to review the UETG than was available because the UETG's sunset (termination) date was July 1, 1998. In order to avoid expiration of the guideline, a motion was approved at the January 16, 1998 MAC meeting to leave the guideline as written for the present and defer on the issue of manipulation, acupuncture and other controversial modalities of treatment until such time as a subcommittee on standardization could meet and make appropriate recommendations. At the March 20, 1998 MAC meeting, the MAC Chairman indicated the intent of the guideline standardization subcommittee was to come up with reasonable criteria to use in evaluating the appropriateness of care and reiterated that the MAC had not made any recommendations specifically regarding manipulation or acupuncture. The advice of the MAC is important to the Medical Review Division and is considered fully together with all the other information available. Input from all MAC members is accepted equally, although staff may further seek clarification from individual MAC member(s) when necessary. Changes to the Surgical Indicators in the UETG were suggested by the M.D. MAC representative who is the only surgeon currently serving on the MAC. The MAC reviewed these changes and recommended them as well. MANIPULATION. COMMENT: Many commenters stated that deleting manipulative treatment is an aggressive attempt to remove appropriate chiropractic care, osteopathic and certain orthopaedic treatments from options available to injured employees. Commenters further indicated that this is not acceptable and not in the best interest of injured employees in Texas. Many commenters requested that the Commission reconsider leaving manipulation in the UETG. A commenter submitted an addendum to their public comment which was a paper representing chiropractors opinions with respect to the use of manipulation in some upper extremity diagnoses. The opinion paper stated that manipulation is considered an appropriate treatment intervention for the diagnoses of tendinitis/tenosynovitis/musculotendinitis; epicondylitis; bicipital tenosynovitis/rotator cuff/supraspintus syndrome; rotator cuff sprain and strain/tear/shoulder impingement/fibrositis/adhesive capsulitis; and neuropathy. The opinion paper stated that manipulation is not considered advisable for fractures, but that manipulation may be considered as an appropriate treatment intervention after the fracture site has completed a reasonable phase of healing and that orthopaedic consultation and co-management is generally indicated. The opinion paper stated that manipulation can be considered as an appropriate intervention in avascular necrosis, joint instability and reflex sympathetic dystrophy. The opinion paper also stated that manipulation is generally not considered to be indicated for crush type injuries, but that sub-acute phases of crush injury involving soft-tissue adhesion and secondary joint dysfunction would benefit from manipulation techniques to help achieve restoration of function. Many commenters stated that the United States Department of Health and Human Services' Agency for Health Care Policy and Research endorsed manipulation as being highly effective for symptomatic and functional improvement of joint problems. The commenters further indicated that there is high quality, broad- based evidence suggesting that manipulation is both appropriate and effective in the restoration of pain-free movement to the musculoskeletal system following injury. Some commenters stated that eliminating manipulation from the UETG will limit the injured worker's legal right to choose his/her own doctor and treatment. Commenters also added that this will lead to poor outcomes, the workers' return to work prior to full recovery, and further injury. Another commenter expressed that it would be detrimental to the recovery of injured workers to remove manipulation from the UETG. Similarly, a commenter stated that this would negate osteopaths' and chiropractors' ability to use one of their most effective tools in the management of on-the-job injuries. The commenter also noted that the injured workers will suffer from this action since they will no longer receive OMT to lessen their symptoms and promote the healing process. Another commenter stated that by not beginning treatment early with mobilization, the patient is not receiving adequate care. Commenter stated that the proposed changes to the UETG are for the exclusive purpose of eliminating chiromantic and acupuncture from the treatment options available to injured employees. Commenters expressed that the Commission is attempting to define chiropractors' scope of practice through the UETG. The commenter advised that manipulation of joints of the extremities is within the current scope of the chiropractic act. The commenter indicated that decisions on scope can only come from the Texas Legislature and the Attorney General's Office. Other commenters stated that the proposed changes to the UETG would place a hardship on chiropractic providers. Commenters stated that the proposed removal of manipulation from the UETG not only limits the scope of practice for chiropractors and osteopaths, but is discriminatory against the specialties. Some commenters expressed that manipulation for upper extremities has proven to be an extremely valuable and effective treatment that restores joint mobility and eliminates pain in their patients. One commenter stated that doctors of chiropractic have used and proved the effectiveness of manipulative treatment since its founding by B. J. Palmer in 1895. Commenters stated that manipulative treatments are recognized by many of the medical professions, and it is part of the curriculum in chiropractic colleges. Commenter further added that all governmental studies performed have shown the efficacy of chiropractic manipulation over other forms of treatment. Another commenter stated that OMT has been a medically accepted treatment for soft tissue injuries and somatic dysfunction of the upper extremities for decades. The commenter also stated that the Commission presents no scientific, peer reviewed studies to prove that OMT has no efficacy in the treatment of upper extremity injuries. Commenter stated that manipulation is very effective for problems dealing with the body joints. The commenter noted that manipulation has been used for thousands of years and that it is twice as effective and half as expensive for treatment of joint problems. Commenter stated that manipulation is criticized because it is not well understood. The commenter described the manipulation process in detail explaining the physiological changes that occur during each phase of the manipulation. Commenter also stated that manipulation benefits patients with upper extremity-type injuries by increasing motion and faster healing, thus returning the patient back to work. Commenter explained that in his practice most patients completely recover from an upper extremity injury without surgery by using manipulation. Commenter is also treating patients with failed surgeries who seek chiropractic treatment to better their condition. Commenter opined that manipulation is the most appropriate method of treatment for many health problems and/or injuries involving the upper extremities. Another commenter expressed that manipulation of the spine and extremities is a key component of appropriate treatment of the injured worker. Commenters stated that manipulation treatment of carpal tunnel and pronator syndromes as opposed to surgical intervention can save millions of dollars. The commenters also noted that manipulation is incredibly safe compared to surgical interventions. Commenter further stated that employees and employers deserve authorized access to a more safe method of treatment and a quicker return to work. A commenter explained that the proposed changes prevent chiropractors from treating upper extremities relative to the spine and that it limits chiropractors from treating the patient thoroughly and professionally. A commenter requested that the Commission reconsider the proposed changes to the UETG. A commenter submitted articles in support of retaining manipulation in the following treatment tables: Hand and Wrist Treatment Tables 28 TAC sec.134.1002(f)(3)(A)-(C); Elbow Treatment Tables 28 TAC sec.134.1002(f)(4)(A)- (C); Olecranon Bursitis and Olecranon Impingment 28 TAC sec.134.1002(f)(4)(D)- (F); Shoulder Treatment Tables 28 TAC sec.134.1002(f)(5)(A)-(C); Shoulder Treatment Tables 28 TAC sec.134.1002(f)(5)(D)-(F); Upper Extremities Treatment Tables 28 TAC sec.134.1002(f)(6)(A)-(C), 28 TAC sec.134.1002(f)(6)(J)-(L), 28 TAC sec.134.1002(f)(6)(P)-(R), 28 TAC sec.134.1002(f)(6)(V)-(X), 28 TAC sec.134.1002(f)(6)(Y)-(AA). Commenter explained that the vast majority of complaints related to carpal tunnel syndrome are successfully and appropriately treated via fast-stretch manipulation of the involved upper extremity. Commenter stated that manipulation is extremely important in resolving extremity injuries with both soft tissue and osseous involvement. Commenters stated that the proposed changes to the UETG are discriminatory against the chiropractic profession and would take away a much needed treatment for the injured workers. Commenter urged the Commission to consider the benefits of manipulation which he described as a conservative, cost-effective, non-invasive treatment. Commenters noted that it is well documented in the literature that proper range of motion of any joint is directly related to the health of that joint. Commenter stated that manipulation is a warranted treatment for all levels of care and for nearly every condition included in the UETG, except for acute fractures, complete tears of the rotator cuff, avascular necrosis and lacerations. Commenter further suggested that joint mobilization should replace manipulation for the treatment tables that address joint instability. Another commenter indicated that there are certain contraindications for the use of manipulation such as presurgical rotator cuff tear, avascular necrosis or malignancy. Commenter then stated that manipulation is extremely valuable in treating adhesive capsulitis, post surgical rehabilitation, and carpal tunnel syndrome. Commenter stated that in all cases of carpal tunnel syndrome that she has treated resulted in significant to complete relief. Commenter added that this is the most compelling reason to retain manipulation in the guideline. Commenter stated that the Commission will conduct the same type of manipulation analysis on the UETG as was used for the Lower Extremities Treatment Guideline. Commenter stated that he found upper extremity disorders were most effectively treated with non-medicated, non-surgical approach used by chiropractors. Commenter further added that manipulation and the use of physical medicine modalities proved to be the most satisfactory from both a monetary and worker- preference perspective. Commenter continued to elaborate that since chiropractors are licensed health care providers they are permitted and compelled by law to use techniques at their disposal to improve or resolve injuries of those seeking care from them. Studies regarding manipulation to upper extremities were submitted. Commenter stated that medical or surgical interventions are more expensive than alternative therapies. Commenter further added that he has found that injured workers who sought manipulation have a lower recurrence rate than those who received medication as treatment. Commenter stated that his understanding of the proposed changes to the UETG will eliminate doctors of chiropractic and osteopathy as sources of medical help for injured workers with upper extremity injuries. Commenter stated that it is a well known fact that manipulative treatment has been proven to decrease symptomatic expression and increase functional improvement to the affected joints. RESPONSE: The Commission agrees in part. The Upper Extremities Treatment Guideline clarifies those services that are reasonable and medically necessary for nonoperative care of the upper extremities for the injured employees of Texas. The guideline is not to be used as a fixed treatment protocol, but rather identifies a normal course of treatment and reflects typical courses of intervention, while recognizing that there will be injured employees who will require less or more treatment than is outlined. The guideline also acknowledges that in atypical cases, treatment falling outside the guideline will occasionally be necessary. However, those cases that exceed the guideline level of treatment are subject to more careful scrutiny and review and require documentation of the special circumstances that justify the treatment. The guideline does not prescribe the type and frequency of treatment; treatment must be based on patient need and professional judgement. The rule is designed to function as a guideline and is not to be used as the sole reason for denial of treatments and services. The Commission disagrees with the commenters' assertion that the Commission is attempting to remove appropriate chiropractic and osteopathic care from the UETG. Focus groups recommended that manipulation be removed as a treatment intervention in nonoperative treatment tables because they did not see these treatment interventions as reasonable and medically necessary normal courses of treatment. The focus groups' recommendations regarding manipulative treatment for upper extremities were brought before the MAC, but the MAC did not reach consensus on the focus groups' recommendations. As a result, the Commission further analyzed the TWCC medical bills database for the period of April 1, 1996 through March 31, 1997 to evaluate frequency of the use of manipulative treatment for upper extremity injuries in the workers' compensation system. Manipulation was included in those diagnosis-specific treatment tables where the TWCC database showed 5.0% or more of injured employees with that diagnosis received manipulation. The 5.0% threshold was chosen because it offers a conservative measure that allows for the inclusion of treatment interventions that occur frequently enough in the workers' compensation system to indicate, in the absence of other data or information, a typical course of treatment. The proposed amendment was not an attempt to limit the injured employee's right to choose a treating doctor. Through public comment it was brought to the Commission's attention that the methodology used to calculate the 5.0% threshold did not take into consideration that the majority of injured employees receiving manipulative treatment for upper extremity injuries were receiving those treatments from chiropractors and osteopaths. Therefore, staff further analyzed the data and materials submitted concerning the nine sets of treatment tables where manipulation was proposed for deletion. This subsequent analysis included a further breakdown of the data that was originally collected to calculate the 5.0% threshold. In the nine sets of treatment tables where manipulation was proposed for deletion because the 5.0% threshold was not met, further analysis revealed that the injured employees who did receive manipulation, received it from primarily doctors of osteopathic and chiropractic. Osteopaths and chiropractors are included in the list of doctors in the Act from which an injured employee may choose a treating doctor. Therefore, the first part of the additional analysis was performed to give an indication of the frequency of use of manipulation by chiropractors and osteopaths. The results indicated that for the diagnoses contained in five out of the nine sets of treatment tables in question, manipulation was frequently used by these provider types. The other four sets of treatment tables showed inconsistent frequency of use by provider type. The five sets of treatment tables where manipulation was frequently used as a treatment intervention by osteopaths and chiropractors are: Hand and Wrist Treatment Tables, 28 TAC sec.134.1002(f)(3)(A)-(C), which include the diagnoses of Tendinitis, Stenosing Tenosynovitis, Musculotendinitis, Musculotendinous Problems; Elbow Treatment Tables, 28 TAC sec.134.1002(f)(4)(A)-(C), which include the diagnoses of Musculotendinitis/ Tendinitis: Lateral Epicondylitis, Medial Epicondylitis, Musculotendinous and Periarticular Problems of the Elbow; Shoulder Treatment Tables, 28 TAC sec.134.1002(f)(5)(A)-(C), which include the diagnoses of Tendinitis: Bicipital, Supraspinatus (rotator cuff), Musculotendinous and Periarticular Problems of the Shoulder; Shoulder Treatment Tables, 28 TAC sec.134.1002(f)(5)(D)-(F), which include the diagnoses of Rotator Cuff: Sprain/Strain, Tear, Shoulder Impingement Syndrome; and Upper Extremities Treatment Tables, 28 TAC sec.134.1002(f)(6)(A)-(C), which include the diagnoses of Neuropathy. The second part of this analysis consisted of looking at the number of injured employees who received treatment from an osteopath or chiropractor versus those who received any treatment from other treating doctors for upper extremity diagnoses in the nine sets of treatment tables in question. For the diagnoses listed in the five sets of treatment tables (listed previously) 7.0% to 30% of the injured employees who sought treatment for these injuries received treatment from an osteopath or a chiropractor. For the diagnoses listed in the remaining four sets of treatment tables of the nine sets proposed for deletion, only 0% to 4.0% of the injured employees who sought treatment for these injuries received treatment from an osteopath or chiropractor. These four treatment tables are: Upper Extremities, 28 TAC sec.134.1002 (f)(6)(J)-(L), which includes the diagnosis of Avascular Necrosis; Upper Extremities, 28 TAC sec.134.1002 (f)(6)(P)-(R), which includes the diagnosis of Joint Instability; Upper Extremities, 28 TAC sec.134.1002 (f)(6)(V)-(X), which includes the diagnosis of Crush Injuries; and Upper Extremities, 28 TAC sec.134.1002 (f)(6)(Y)-(AA), which includes the diagnosis of Reflex Sympathetic Dystrophy. The next part of the analysis consisted of evaluating the studies submitted during public comment and the Texas Chiropractic Association (TCA) opinion paper, which was based on a survey of Texas chiropractors. The following parameters were developed to evaluate the materials submitted by public commenters and establish whether the materials met the general definition of scientific research: a) does the study seek to test a hypothesis; b) does the study involve multiple subjects, since single subject case studies rank low as an accepted method for establishing the efficacy of treatment methods; and c) does the study address the upper extremity diagnoses in question. The studies submitted support including manipulation in the following treatment tables: Hand and Wrist Treatment Tables, 28 TAC sec.134.1002(f)(3)(A)-(C), which include the diagnoses of Tendinitis, Stenosing Tenosynovitis, Musculotendinitis, Musculotendinous Problems; Elbow Treatment Tables, 28 TAC sec.134.1002(f)(4)(A)-(C), which include the diagnoses of Musculotendinitis/ Tendinitis: Lateral Epicondylitis, Medial Epicondylitis, Musculotendinous and Periarticular Problems of the Elbow; Shoulder Treatment Tables, 28 TAC sec.134.1002(f)(5)(A)-(C), which include the diagnoses of Tendinitis: Bicipital, Supraspinatus (rotator cuff), Musculotendinous and Periarticular Problems of the Shoulder; Shoulder Treatment Tables, 28 TAC sec.134.1002(f)(5)(D)-(F), which include the diagnoses of Rotator Cuff: Sprain/Strain, Tear, Shoulder Impingement Syndrome; and Upper Extremities Treatment Tables, 28 TAC sec.134.1002(f)(6)(A)-(C), which include the diagnoses of Neuropathy. The TCA strongly endorsed manipulation as being an appropriate treatment intervention for the following five treatment tables: Hand and Wrist Treatment Tables, 28 TAC sec.134.1002(f)(3)(A)-(C), which include the diagnoses of Tendinitis, Stenosing Tenosynovitis, Musculotendinitis, Musculotendinous Problems; Elbow Treatment Tables, 28 TAC sec.134.1002(f)(4)(A)-(C), which include the diagnoses of Musculotendinitis/ Tendinitis: Lateral Epicondylitis, Medial Epicondylitis, Musculotendinous and Periarticular Problems of the Elbow; Shoulder Treatment Tables, 28 TAC sec.134.1002(f)(5)(A)-(C), which include the diagnoses of Tendinitis: Bicipital, Supraspinatus (rotator cuff), Musculotendinous and Periarticular Problems of the Shoulder; Shoulder Treatment Tables, 28 TAC sec.134.1002(f)(5)(D)-(F), which include the diagnoses of Rotator Cuff: Sprain/Strain, Tear, Shoulder Impingement Syndrome; and Upper Extremities Treatment Tables, 28 TAC sec.134.1002(f)(6)(A)-(C), which include the diagnoses of Neuropathy. The TCA suggested that manipulation could be an appropriate treatment intervention or was not generally considered appropriate for the following four treatment tables: Upper Extremities, 28 TAC sec.134.1002 (f)(6)(J)-(L), which includes the diagnosis of Avascular Necrosis; Upper Extremities, 28 TAC sec.134.1002 (f)(6)(P)-(R), which includes the diagnosis of Joint Instability; Upper Extremities, 28 TAC sec.134.1002 (f)(6)(V)-(X), which includes the diagnosis of Crush Injuries; and Upper Extremities, 28 TAC sec.134.1002 (f)(6)(Y)-(AA), which includes the diagnosis of Reflex Sympathetic Dystrophy. With the additional analysis and evaluation of the materials submitted during public comment, The Commission agrees that manipulation is a medically necessary normal course of treatment for Hand and Wrist: Tendinitis, Stenosing Tenosynovitis, Musculotendinitis, Musculotendinous Problems; Musculotendinitis/Tendinitis: Lateral Epicondylitis, Medial Epicondylitis, Musculotendinous and Periarticular Problems of the Elbow; Shoulder: Tendinitis: Bicipital, Supraspinatus (rotator cuff), Musculotendinous and Periarticular Problems of the Shoulder; Rotator Cuff: Sprain/Strain, Tear, Shoulder Impingement Syndrome; and Upper Extremities Treatment Tables, 28 TAC sec.134.1002(f)(6)(A)-(C), which include the diagnoses of Neuropathy, because: manipulation is performed by chiropractors and osteopaths with a consistently higher frequency; these diagnoses have a high patient volume; materials submitted support the use of manipulation as a normal course of treatment for these diagnoses; and the TCA strongly endorses the use of manipulation as an appropriate type of treatment for these diagnoses. Manipulation has therefore not been deleted from the following five treatment tables: Hand and Wrist Treatment Tables, 28 TAC sec.134.1002(f)(3)(A)-(C), which include the diagnoses of Tendinitis, Stenosing Tenosynovitis, Musculotendinitis, Musculotendinous Problems; Elbow Treatment Tables, 28 TAC sec.134.1002(f)(4)(A)- (C), which include the diagnoses of Musculotendinitis/ Tendinitis: Lateral Epicondylitis, Medial Epicondylitis, Musculotendinous and Periarticular Problems of the Elbow; Shoulder Treatment Tables, 28 TAC sec.134.1002(f)(5)(A)-(C), which include the diagnoses of Tendinitis: Bicipital, Supraspinatus (rotator cuff), Musculotendinous and Periarticular Problems of the Shoulder; Shoulder Treatment Tables, 28 TAC sec.134.1002(f)(5)(D)-(F), which include the diagnoses of Rotator Cuff: Sprain/Strain, Tear, Shoulder Impingement Syndrome; and Upper Extremities Treatment Tables, 28 TAC sec.134.1002(f)(6)(A)-(C), which include the diagnoses of Neuropathy. Also, as a result of this further analysis and evaluation of the materials submitted during public comment, it was confirmed that manipulation is not a medically necessary normal course of treatment for avascular necrosis, joint instability, crush injuries and reflex sympathetic dystrophy because: manipulation was not performed by chiropractors and osteopaths with consistently high frequency in these four diagnoses; these diagnoses involve low number of injured employees (42 out of 63,688 claimants with upper extremity diagnoses who received manipulation from a chiropractor or osteopath); materials submitted did not support the use of manipulation as a normal course of treatment for these diagnoses; and TCA indicated that manipulation could be an appropriate treatment or was generally not considered an appropriate treatment for these four diagnoses. Therefore, manipulation is deleted from the following four treatment tables: Upper Extremities, 28 TAC sec.134.1002 (f)(6)(J)-(L), which includes the diagnosis of Avascular Necrosis; Upper Extremities, 28 TAC sec.134.1002 (f)(6)(P)-(R), which includes the diagnosis of Joint Instability; Upper Extremities, 28 TAC sec.134.1002 (f)(6)(V)-(X), which includes the diagnosis of Crush Injuries; and Upper Extremities, 28 TAC sec.134.1002 (f)(6)(Y)-(AA), which includes the diagnosis of Reflex Sympathetic Dystrophy. Despite the removal of manipulation from these four treatment tables, manipulation can still be performed as an acceptable treatment modality for the diagnoses listed in those tables, provided that sufficient supporting documentation is submitted by the treating doctor. The Commission neither agrees nor disagrees with the commenters' statement that the United States Department of Health and Human Services endorses manipulation as being highly effective for symptomatic and functional improvement of joint problems because neither copies nor citations of this endorsement were made available to staff for review. The Commission disagrees that the Commission is attempting to define a chiropractor's scope of practice. The Upper Extremities Treatment Guideline clarifies those services that are reasonable and medically necessary for nonoperative care of the upper extremities for the injured employees of Texas. The guideline is not to be used as a fixed treatment protocol, but rather identifies a normal course of treatment and reflects typical courses of intervention, while recognizing that there will be injured employees who will require less or more treatment than is outlined. The guideline also acknowledges that in atypical cases, treatment falling outside the guideline will occasionally be necessary. However, those cases that exceed the guideline level of treatment are subject to more careful scrutiny and review and require documentation of the special circumstances that justify the treatment. The guideline does not prescribe the type and frequency of treatment nor the doctor to be used by the injured employee; treatment must be based on patient need and professional judgement. The rule is designed to function as a guideline and is not to be used as the sole reason for denial of treatments and services. Because the guideline does not prescribe the type and frequency of treatment, a chiropractors' scope of practice is not impinged upon. Despite the removal of manipulation from these four treatment tables, manipulation can still be performed as an acceptable treatment modality for the diagnoses listed in those tables, provided that sufficient supporting documentation is submitted by the treating doctor. (See subsection (e) Ground Rules.) The Commission agrees that manipulation is a medically necessary normal course of treatment for Carpal Tunnel Syndrome, Adhesive Capsulitis, and other soft tissue with osseus involvement injuries based on additional analysis conducted and described previously. Manipulation will not be deleted from Upper Extremities Treatment, 28 TAC sec.134.1002 (f)(6)(A)-(C) which addresses Neuropathy which includes Carpal Tunnel Syndrome; Shoulder Treatment Table, 28 TAC sec.134.1002 (f)(5)(D)-(F) which addresses diagnoses for Rotator Cuff: Sprain/Strain, Tear Shoulder Impingement Syndrome which includes Adhesive Capsulitis; as well as the following three treatment tables which include soft tissue with osseus involvement injuries, Hand and Wrist Treatment Tables, 28 TAC sec.134.1002 (f)(3)(A)-(C), Elbow Treatment Tables, 28 TAC sec.134.1002 (f)(4)(A)-(C), and Shoulder Treatment Tables, 28 TAC sec.134.1002 (f)(5)(A)-(C). The Commission agrees in part that manipulation needs to be included for post- surgical rehabilitation. Post-surgical treatment is already addressed throughout the primary, secondary and tertiary treatment tables of the guideline, therefore manipulation is included in those treatment tables where it has been determined to be a medically necessary and normal course of treatment based on an additional analysis conducted and described previously. The Commission disagrees that joint mobilization should replace manipulation in the treatment tables for joint instability. Manipulation is being deleted from the treatment tables for joint instability because an additional analysis (described previously) determined that manipulation was not a medically necessary normal course of treatment for joint instability. Despite the removal of manipulation from these treatment tables, manipulation can still be performed as an acceptable treatment modality provided that sufficient documentation is submitted by the treating doctor. In addition, joint mobilization is considered a part of "Outpatient Evaluation and Therapy" which is already included in these tables. METHODOLOGY. COMMENT: Some commenters stated that it was their understanding that the Commission considers all literature, reference materials, case studies and outcome measurements to be non-scientific. The commenters questioned whether the Commission considered the federal government's view of manipulation as being highly effective and safe to be non-scientific as well. Commenter added that manipulation is recommended for conditions, such as carpal tunnel, as outlined in peer-reviewed journals and can save thousands of dollars in unnecessary surgery. Commenter stated that medical literature reports the restoration of proper motion of injured joints allows for the facilitation of soft tissue healing and decreases the likelihood of long term disability in an injured joint. The commenter further added that his diagnostic texts list algorithms that include joint manipulation as a protocol for several upper extremity conditions. The commenter then questioned why the Commission's guidelines would deviate from established and recognized medical texts. Commenter expressed confusion as a result of the Commission's refusal to accept a textbook as scientific. The commenter questioned why an unpublished draft is used as a source in the UETG's bibliography. The commenter stated that this is an unequal requirement for determining what is a "scientific" publication and added that medical textbooks are published only after the treatment modalities presented in them are scientifically proven. Commenter stated that he was in the original workgroup that first developed the UETG and that extracts and articles that appeared in peer-reviewed journals were submitted to substantiate the necessity of manipulation in certain conditions. RESPONSE: The Commission disagrees that the standard used to qualify reliable studies was inappropriate. During development of the Lower Extremities Treatment Guideline (LETG), the MAC recommended that scientific studies regarding treatments be considered. Similar studies were sought for consideration regarding treatment for the upper extremities. Scientific research generally should seek to test a hypothesis and to have multiple subjects. The following parameters were developed to evaluate the materials submitted by public commenters and establish whether the materials met the general definition of scientific research: a) does the study seek to test a hypothesis; b) does the study involve multiple subjects, since single subject case studies rank low as an accepted method for establishing the efficacy of treatment methods; and c) does the study address the upper extremity diagnoses in question. One hundred thirty two documents supporting manipulation were submitted during the public comment period for the UETG. After applying the parameters, only 26 of these documents were considered applicable scientific studies. The remainder did not meet the specified criteria for the following reasons: 21 could not be evaluated because only the title was submitted with no summary or abstract; 23 were single-subject case studies; 46 were articles that discussed how to perform manipulation or described various conditions; 12 were research studies that were not related to any upper extremity diagnoses in question; and four were other documents such as chapters from textbooks, surgical procedures and research committee publications. The 26 research studies used evaluated manipulation and had positive findings for the following conditions: general shoulder problems, frozen shoulder, tennis elbow, and carpal tunnel syndrome. Manipulation has been retained in the treatment tables which include these diagnoses. The Commission neither agrees nor disagrees with the remaining commenters' statement concerning manipulation as being highly effective according to peer- reviewed journals, algorithms, the federal government, and other medical literatures because copies of these cited sources were not made available to staff. The Commission neither agrees nor disagrees with the commenters' statement that the United States Department of Health and Human Services endorses manipulation as being highly effective for symptomatic and functional improvement of joint problems because neither copies nor citations of this endorsement were made available to staff for review. Textbook chapters were submitted and evaluated along with other documents. These textbook chapters did not meet the criteria established for scientific studies. Similarly, the unpublished draft that a commenter referenced was a general resource used to develop the 1996 UETG and not used to evaluate proposed revisions. Other sources of information were also used in developing the amendments to the UETG. See the detailed discussion of additional analysis of TWCC data elsewhere in this preamble. COMMENT: Commenter critiqued the Commission's analysis as simplistic and described it as another example of how imprecision causes misunderstanding. The commenter stated that by assuming that because a certain diagnosis is used it is the proper or primary diagnosis and that it is used consistently from profession to profession has introduced error into the analysis. The commenter stated that error was also introduced into the analysis when insurance billing records were used to compare treatments because many physicians do not bill for each and every service rendered on a visit. RESPONSE: The Commission disagrees. The TWCC Medical Fee Guideline specifically instructs providers on the correct billing of manipulation. It is assumed that health care providers are properly billing in accordance with the TWCC rules and guidelines. Additional analysis was performed when public comment brought to the Commission's attention the issues about the use of manipulation being concentrated in the practice of chiropractic and osteopathy. As a result of that analysis, the amendment to the UETG was changed. See the description of this analysis detailed previously in this preamble. COMMENT: Commenter stated that while the Commission rejected literature as non- scientific in regard to evaluating the effectiveness of osteopathic manipulation, it used a non-scientific, anti-osteopathic, and anti-chiropractic biased method of deleting manipulation from treatment guidelines. Commenter stated that the proposed changes to the UETG are poorly substantiated and do not reflect the benefits of manipulation and acupuncture to the injured employees. Commenter requested that the Commission not adopt the proposed changes until further comment and professional input can be made. Commenter stated that the Commission is not allowing sufficient time for the medical community to respond to the proposed changes to the UETG with scientific literature, papers, personal experience and outcome studies. The commenter felt that this is arbitrary and discriminatory. RESPONSE: The Commission disagrees. The Commission's method of analyzing the issues and re-analyzing the issues in response to public comment is detailed elsewhere in this preamble. The standards set for scientific literature are also explained in detail elsewhere in this preamble. The explanation of the methodology and the results of analysis are evidence that the Commission has not engaged in a biased exercise to delete manipulation from the UETG. The Commission disagrees that the medical community has not had sufficient time to respond to the proposed changes to the UETG. The medical community has had several different avenues for providing comment beginning in July of 1997 when the original work group members that worked on the 1996 UETG were contacted to evaluate the UETG and recommend revisions. In September and October of 1997, focus groups were held with members of the medical community to gather input into the revision process. The MAC discussed revisions to the UETG at their November 1997 and January 1998 meetings. The medical community further contributed to the revisions of the UETG by submitting comments during the public comment period between February 27, 1998 and March 30, 1998. NUTRITIONAL SUPPLEMENT. COMMENT: Commenter stated that nutritional supplements are only included for neuropathy and should be included in all treatment tables. RESPONSE: The Commission disagrees. MAC members and focus groups did not recommend the need for addition of nutritional supplements for any diagnosis other than neuropathy. The treating doctor can recommend nutritional supplement with documentation for medical necessity. Each case will be evaluated retrospectively on an individual basis. OBJECTIVE FINDINGS. COMMENT: Commenter recommended that in subsection (h)(33) the word "competent" be removed from the phrase "competent medical evidence" as it appears in the definition of "objective findings" because the assumption should be that physicians practicing in the workers' compensation system are competent. The commenter also recommended that the last sentence, "without reliance on the subjective symptoms perceived by the employee" be deleted from the definition of "objective findings," because the AMA guides allow impairment for pain which is in conflict with the last statement. RESPONSE: The Commission disagrees. The definition in the UETG of "objective findings" is taken from sec.401.011(33) of the Texas Worker's Compensation Act. OUTPATIENT EVALUATIONS. COMMENT: Commenter expressed concern that manipulation was proposed to be removed for osteopathic physicians and chiropractors but that the guideline would allow physical therapists to perform manipulation under the treatment "outpatient evaluation and therapy". Commenter recommended that "outpatient evaluation and therapy" be removed from all treatment tables because it is discriminatory. RESPONSE: The Commission disagrees. Outpatient Evaluation and therapy includes more modalities than just manipulation. No input from the work group members, focus groups or MAC members indicated that outpatient evaluation and therapy was not a medically necessary normal course of treatment. Despite the removal of manipulation from four sets of treatment tables, manipulation can still be performed as an acceptable treatment modality for the diagnoses listed in those tables, provided that sufficient supporting documentation is submitted by the treating doctor. OPPOSED. COMMENT: Commenter questioned the purpose of the guideline--if the purpose is to point out what most people do, the commenter expressed that the Commission's limited review accomplishes this. However, if the purpose is to provide the insurance administrators with a guideline for acceptable treatment, the commenter does not believe that the Commission has accomplished this. Commenter stated that the Commission is again attempting to undermine legislative mandate by the proposed changes to the UETG. The commenter recommends the Commission reconsider and not make any changes to the UETG. RESPONSE: The Commission disagrees. The purpose of the UETG is to identify a normal course of treatment and reflect typical courses of intervention, while recognizing that there will be injured employees who will require less or more treatment than outlined. The rule is designed to function as a guideline and is not to be used as a sole reason for denial of treatment and services. The guideline fulfills the legislative objectives mandate by: (1) identifying services that are reasonable and medically necessary for treatment of upper extremity injuries; (2) assisting all parties with regard to the appropriate treatment and management of disorders of the upper extremities in workers' compensation healthcare; (3) establishing a guideline against which aspects of care can be compared; (4) identifying clinically acceptable courses of care for specific upper extremity injuries; (5) establishing documentation standards which support the appropriateness of the level of service for assessment/evaluation and on-going treatment; (6) providing a mechanism for prospective, concurrent, and retrospective review to ensure efficient and effective health care utilization; and (7) establishing normal courses of treatment based on clinical indicators at different levels of healing. PEER REVIEW. COMMENT: Commenter recommended that subsection (d)(2)(D) be amended to read "This rationale shall include elements of the guideline" instead of "This rationale may . . ." because the insurance carrier should be held to the same standard as the health care provider. RESPONSE: The Commission disagrees. The use of the word "shall" as stated by commenter, implies that the insurance carrier is restricted to this treatment guideline as the only consideration in evaluating medical necessity of treatment. The use of the word "may" acknowledges that there are considerations in addition to the UETG which carriers should evaluate before making a decision regarding reimbursement. Examples of additional considerations include (but are not limited to): was pre-authorization obtained; is this a duplicate charge; and is the injury compensable. In addition, carriers are not precluded from requiring additional doucumentation or disputing a treatment contained in the UETG for a particular injured employee. Therefore, "may" is used in subsection (d)(2)(D). TREATMENT. COMMENT: Commenter recommended subsection (e)(1) be amended to read "However, cases that utilize treatment not listed in the guidelines' level of treatment shall require documentation of the special circumstances justifying that treatment." RESPONSE: The Commission disagrees. The commenter's recommendation would change the intent of this sentence. The sentence as written includes the listed treatments, but also includes the frequency and the timeliness of the treatment. Making the recommended change would eliminate the frequency and the timeliness of the treatment. The amendment is adopted under the Texas Labor Code, sec.402.061, which authorizes the commission to adopt rules necessary to administer the Act, the Texas Labor Code, sec.413.011, which authorizes the commission to establish by rule medical policies and guidelines relating to necessary treatments for injuries, and the Texas Labor Code, sec.413.013, which authorizes the commission to establish by rule a program for prospective, concurrent, and retrospective review and resolution of a dispute regarding health care treatments and services; and to establish by rule a program for the systematic monitoring of the necessity of treatments administered and fees charged and paid for medical treatments or services, including the authorization of prospective, concurrent, or retrospective review under the medical policies of the commission to ensure that the medical policies or guidelines are not exceeded. These statutory provisions clearly authorize the Commission to adopt a rule such as sec.134.1002 which includes guidelines relating to necessary treatments for injuries and promotes resolution of disputes regarding health care treatments and services. sec.134.1002.Upper Extremities Treatment Guideline. (a) Table of Contents. The following headings and their corresponding subdivisions comprise a table of contents for this section: (1) Introduction - subsection (b): (A) Effective Date - subsection (b)(1); (B) Purpose - subsection (b)(2); (C) Goals - subsection (b)(3); (D) Development Process - subsection (b)(4); (E) Philosophy of Care - subsection (b)(5); (2) Role of the Treating Doctor - subsection (c): (A) Statutory Requirements - subsection (c)(1); (B) Treating Doctor Responsibilities - subsection (c)(2); (C) Referrals - subsection (c)(3); (D) Diagnostics - subsection (c)(4); (E) Expectations and Compliance - subsection (c)(5); (3) Application Instructions for Involved Parties/Concepts and Governing Principles - subsection (d); (4) Ground Rules - subsection (e): (A) Introduction - subsection (e)(1); (B) Ground Rules - subsection (e)(2); (C) General Documentation Requirements - subsection (e)(3); (D) Documentation Requirements for Unrelated or Intercurrent Illness - subsection (e)(4); (5) Nonoperative Treatment Tables - subsection (f): (A) Introduction to Treatment Tables - subsection (f)(1); (B) Definition of Levels of Care - subsection (f)(2); (C) The Hand and Wrist - subsection (f)(3); (D) The Elbow - subsection (f)(4); (E) The Shoulder - subsection (f)(5); (F) Upper Extremity - subsection (f)(6); (6) Surgical Indicators - subsection (g): (A) Hand and Wrist - subsection (g)(1); (B) Elbow - subsection (g)(2); (C) Shoulder - subsection (g)(3); (D) Upper Extremities - subsection (g)(4); (7) Glossary - subsection (h); and (8) Bibliography - subsection (i). (b) Introduction. (1) Effective Date. This version of the guideline shall be effective for all medical treatments and services provided on or after the effective date of this guideline. Medical treatments and services provided prior to the effective date of this version of the guideline shall be subject to the version of the Upper Extremities Treatment Guideline in effect at the time the medical treatments and services were provided. (2) Purpose. The purpose of this guideline is to clarify those services that are reasonable and medically necessary for treatment of upper extremity injuries for the injured workers of Texas. There may be injured workers who will require more or less treatment than is recommended in this guideline. This is a guideline and shall not be used as the sole reason for denial of treatments and services. (3) Goals. The primary goals of this guideline are: (A) to assist all parties with regard to the appropriate treatment and management of upper extremity injuries; (B) to establish elements against which aspects of care can be compared; (C) to establish a guideline to identify services that are reasonable and medically necessary for treatment of specific diagnoses; (D) to establish documentation standards which support the appropriateness of the level of service; and (E) to provide a mechanism of prospective, concurrent, and retrospective review for efficient and effective health care utilization. (4) Development Process. The Texas Workers' Compensation Commission (TWCC), in conjunction with health care providers and other parties in the system, have developed clinical and diagnostic treatment guidelines. Three major components in the guideline development process are as follows: (A) Design and Methodology. A search of all 50 workers' compensation state agencies revealed that only a few had developed treatment guidelines. The format and design of these guidelines were mainly in narrative presentation. The focus of this treatment guideline is toward a matrix approach versus straight text. (B) Provider Work Group. Research into successful guidelines developed in the private sector identified that involvement from provider work groups achieves the best outcome regarding clinical policy development. (C) Public Evaluation. The evaluation of the developed guideline should be broad and include comments from employees, employers, health care providers and insurance carriers. (5) Philosophy of Care. The health care of the injured worker is a coordinated team effort. All parties including employees, employers, health care providers, insurance carriers and the Texas Workers' Compensation Commission should promote quality health care, injury specific treatment and appropriateness of care. Communication between all parties must remain open in order to achieve rapid recovery from the effects of the injury. This communication should promote a timely return to modified or full duty work that takes into account the job demands and the functional capabilities of the injured worker. (c) Role of Treating Doctor (Primary Doctor\Gatekeeper). (1) Statutory Requirements. The following sections of the Texas Labor Code and specific Commission rules address key areas pertaining to those services that are reasonable and necessary for treatment of the upper extremity. (A) Section 408.021(a). An employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed. The employee is specifically entitled to health care that: (i) cures or relieves the effects naturally resulting from the compensable injury; (ii) promotes recovery; or (iii) enhances the ability of the employee to return to or retain employment. (B) Section 408.021(b). Medical benefits are payable from the date of the compensable injury. (C) Section 408.021(c). Except in an emergency, all health care must be approved or recommended by the employee's treating doctor. (D) Section 408.025(b). The commission by rule shall adopt reasonable requirements for reports and records to be made available to other health care providers to prevent unnecessary duplication of tests and examinations. (E) Section 408.025(c). The treating doctor shall be responsible for maintaining efficient utilization of health care. (2) Treating Doctor Responsibilities. (A) The role of the treating doctor is an important role which requires the treating doctor to monitor all health care services being provided for the injured worker. These responsibilities of the treating doctor are vital aspects of the goal to ensure that the injured worker receives quality health care. This monitoring extends to ensure: (i) the identification of the extent and severity of the injury initially; (ii) the appropriateness of all services; (iii) the relatedness of all services to the workers' compensation injury; (iv) separation and referral of nonrelated health care services for management by other health plans; (v) whether the treatment is duplicative, necessary and/or effective; (vi) the appropriate cost of the services; (vii) the quality of the treatment; and (viii) enhancement and promotion of effective communication among all involved parties. (B) Refer to Commission sec.126.9 of this title (relating to Choice of Treating Doctor and Liability for Payment) and sec.133.3 of this title (relating to Responsibilities of Treating Doctor) for responsibilities of the treating doctor. (3) Referrals. The treating doctor is responsible for recommending timely and appropriate referrals. The treating doctor must clearly delineate the clinical rationale for all referrals. The documentation contained in the TWCC required reports should clearly outline whether the purpose of the referral is to corroborate the diagnosis and/or proposed course of treatment or to initiate ongoing treatment. Once a consultation or referral has occurred, the consulting or referral doctor should submit a summary report or initiate a case management phone call back to the treating doctor. (4) Diagnostics. Diagnostic work should be performed in accordance with the recommended testing and timeframes contained in this guideline. If the need arises to deviate from the guideline, then a clinical rationale must be provided which adequately substantiates the need for this deviation. The need to repeat previously completed diagnostic procedures due to the quality of the study may trigger a review. All health care providers involved in the treatment of an injured worker must share copies of all diagnostic studies, films, and reports in order to avoid unnecessary duplication of procedures. Section 133.2 of this title (relating to Sharing Medical Reports and Test Results) addresses the need to share medical records, including diagnostic studies, to avoid duplication. Section 133.106 of this title (relating to Fair and Reasonable Fees for Required Reports and Records) addresses reimbursement for copies of records. (5) Expectation and Compliance. (A) All health care providers must encourage injured workers to be active participants in their health care treatment regimens and must communicate to the injured worker realistic expectations regarding the potential outcome of this treatment as it relates to his/her physical functioning and/or ability to return to work. Therefore, documenting the injured worker's compliance with his/her treatment regimen is important when reporting the progress of his/her recovery. (B) Health care providers must explain to the injured worker in clear terms the extent and severity of the injury and the treatment needed. Health care providers must define the symptomatology that is directly and/or indirectly related to the injury and specify treatment not covered under workers' compensation. (d) Application Instructions for Involved Parties - Concepts and Governing Principles. (1) Health care provider. This guideline shall be used as a tool by the health care provider to establish the required elements to initiate and continue treatment. If, a healthcare provider's treatment deviates from this guideline, documentation of the medical condition that specifically requires treatment outside the guideline parameters would be required to clearly delineate the need for the treatment (A) This guideline identifies typical treatment based on normal tissue healing responses for the average injured worker. (B) This guideline recognizes that a subset of injured workers will be found to be outside the parameters of this guideline. If a healthcare provider's treatment deviates from this guideline, documentation would be required to clearly delineate the need for the treatment. (C) This guideline should be used as a tool which identifies the recommended treatment parameters for treatment of injured workers within the workers' compensation system. (D) This guideline identifies the need to provide documentation which clearly explains the reason for the treatment, the relatedness to the workers' compensation injury and alternative treatment. (E) The health care provider is responsible for educating the injured worker about health care treatment appropriate to the workers' compensation injury. (F) This guideline recommends timely return to work of either full or modified job duties based upon the injured worker's functional capacity which includes ability, clinical status, and either full or modified job requirements. (G) The health care provider is responsible for formulating a treatment plan and revising the treatment plan based on response to treatment. The treatment plan should be provided to the insurance carrier as early as possible. (2) Insurance Carriers. The insurance carrier shall use this guideline to compare treatment prospectively, concurrently and retrospectively with the predetermined elements contained in the guides. (A) This document and its parameters serve only as a guideline and shall not be used as the sole reason for denial or requirement of treatments and services. (B) This guideline provides a tool by which to monitor the injured worker's recovery process. (C) This guideline serves as a tool to assist the insurance carriers in the medical audit process. (D) This guideline shall not be used to direct care toward a specific health care discipline or to a specific type of treatment. The insurance carrier is responsible for providing their specific documentation and rationale if treatment is denied. This rationale may include elements of the guideline. Additional information regarding the rationale for denial of treatment may also be derived from the injured worker's medical records and from the professional opinion of a peer review, if utilized. (E) A subset of injured workers will be found to be outside the parameters of this guideline. If a healthcare provider's treatment deviates from this guideline, documentation would be required to clearly delineate the need for the treatment. (F) The insurance carrier is responsible for performing a focus review of injury. This focus review shall primarily consist of case management. The focus review must clarify and attempt to reach agreement that the proposed treatment is appropriate as early as possible. Concurrent case management and bill review activities should address and focus on: (i) adherence to treatment plans; (ii) clinical progress; (iii) return to work issues; (iv) medical necessity; (v) injured worker compliance with the treatment; (vi) services provided consistent with treatment plan; (vii) response to treatment; (viii) improvement in injured workers' progress; (ix) recommendations for changes in treatment in situations where there is no compliance, plateau, and/or there is minimal or no progress; and (x) achievement. of goals, improvement sooner than treatment plan indicated. (3) Medical Review Division. The Medical Review Division shall use the guideline as a tool for the basis of their administrative review of prospective, concurrent and retrospective treatment. This guideline shall also be used as a tool in conducting on-site and desk audits for both health care providers and insurance carriers. (4) Consulting or Peer Review Health Care Provider. This guideline shall be used as a reference in advising the Medical Review Division and to determine when the need for an unbiased medical opinion is indicated. The peer reviewer should use his/her clinical expertise in conjunction with the clinical intent of the guideline to address issues. (5) Injured Worker. The injured worker must understand his or her role in complying with recommended treatment. The recovery process requires active cooperation of the injured worker. The health care provider is responsible for educating the injured worker about health care treatment appropriate to the workers' compensation injury. (as stated in paragraph (1)(E) of this subsection). (6) Employer. The employer shall be responsible for reporting the compensable injury in a timely fashion to ensure that there is no delay in the treatment of the compensable injury. The employer should, when appropriate, be responsible for working with the insurance carrier and health care providers to ensure that the injured worker is afforded the opportunity to return to work in either a modified or full employment capacity as rapidly as possible within the medical limitations of his or her injury. (e) Ground Rules. (1) Introduction. Texas Workers' Compensation Commission treatment guidelines are not to be used as fixed treatment protocols. The guidelines reflect services that are reasonable and medically necessary for treatment of upper extremity injuries. The guidelines recognize that a subset of injured workers will be found to be outside the guidelines' parameters. However, cases exceeding the guidelines' level of treatment shall be subject to more careful scrutiny and review and shall require documentation of the special circumstances justifying that treatment. The guidelines should not be seen as prescribing the type, frequency, or duration of treatment. Treatment must be based on the injured worker's need and the doctor's professional judgment. (2) Ground Rules. (A) Notwithstanding any other provision of this rule, treatment of a work related injury must be: (i) adequately documented; (ii) evaluated for effectiveness and modified based on clinical changes; (iii) provided in the least intensive setting; (iv) cost effective; (v) consistent with this guideline which may include providing a documented clinical rationale for deviation from this guideline; (vi) objectively measured and demonstrate functional gains; and (vii) consistent in demonstrating ongoing progress in the recovery process by appropriate re-evaluation of the treatment. (B) Communication between all health care providers involved in treating the injured worker must ensure that all previous treatment and diagnostic tests are considered when developing a treatment plan. All reports and records shall be made available to all health care providers to prevent unnecessary duplication of tests and examinations. (Refer to subsection (c)(2), (3), and (4) of this section.) (C) Patient education is an essential component in ensuring patient compliance to all treatment. Education is essential for the active cooperation of the patient in all aspects of health care and as a means to prevent re-injury. The patient must understand his or her role in the recovery and return to work processes. The health care provider is responsible for educating the injured worker about health care treatment appropriate to the workers' compensation injury. (as stated in subsection (d)(1)(E) of this section). (D) All parties in the workers' compensation system should work together to ensure that the injured worker returns to work at the earliest medically appropriate time. Return-to-work is an important therapeutic approach which benefits the injured worker. The health care provider shall communicate with the injured worker, employer and the insurance carrier to coordinate a successful return to work. (E) The level of service shall be the same as the health care provider's usual and customary level of service regardless of the payor system. (F) Although not the typical course of treatment, there may be circumstances in which the injured worker may move between levels of care or utilize interventions in more than one level of care simultaneously, depending on clinical indicators. (G) All health care providers treating an injured worker are responsible for substantiating in their documentation the level of service for which they request reimbursement. All payors have the responsibility to review all documentation submitted as the basis for the treatment and services provided. (H) Treatment durations are cumulative; it may not always be necessary to use full durations for any given level of care. (I) Any new treatment must meet acceptable standards of care (as defined in the Glossary - subsection (h) of this section) and may be subject to review by Texas Workers' Compensation Commission. (J) Preauthorization of any treatments or services shall be as required in the Commission's preauthorization rule. (K) When the injured worker displays signs and symptoms which may require further evaluation by a Qualified Mental Health Provider, refer to sec.134.1000 of this title (relating to the Mental Health Treatment Guideline) for parameters regarding documentation, evaluation and treatment. (L) When an injured worker must travel in order to obtain appropriate and necessary medical care for a compensable injury, reimbursement for travel expenses is governed by sec.134.6 of this title (relating to Travel Expenses). (3) General Documentation Requirements. (A) The health care provider's documentation is vital as an information source of the injured worker's injury and treatment, and also provides information which impacts income benefits. For these reasons, many of the Commission's rules have set time requirements for submission of required reports. For more information, refer to Chapter 133 Subchapter B of this title, (relating to Required Reports). (B) Documentation shall be provided by the health care provider to determine the level of care to be provided and the necessity for that care. The elements of the documentation may include: (i) a description of the injury, including the events surrounding that injury and the extent and severity of that injury; (ii) a description of any pre-existing condition(s), complicating conditions and/or any non-related conditions; (iii) a treatment plan, including proposed methods of treatment, expected outcomes, and probable duration of treatment; (iv) updates to the treatment plan as needed, including the clinical progress of the injured worker, and any revisions needed to the treatment plan based on the injured worker's response to treatment; (v) education/information provided to the injured worker regarding his or her injury and treatment plan, and the injured worker's compliance with this treatment plan; and (vi) documentation substantiating the need for deviation from the guideline, if necessary. (C) Permanent impairment for compensable injuries in workers' compensation shall be limited to those injuries and illnesses for which doctors are able to demonstrate objective findings. (D) The need for emergency treatment must be based on the doctor's professional judgment. This documentation must provide a clear explanation of the nature of the emergency, the injured worker's medical condition, complications which could occur, as well as any irreversible conditions which occurred or could occur, as a result of the emergency. (4) Documentation Requirements for Unrelated or Intercurrent Illness. Situations may arise where certain medical conditions need to be delineated or clarified prior to intervention. Treatment administered to other body areas (not a part of the original injury) or for a pre-existing medical condition(s) must be identified and the relation of this treatment to the compensable injury must be documented by the health care provider. If this treatment appears not to be related to the compensable injury, then the health care provider should inform the injured worker that this treatment may not be covered by the insurance carrier. The health care provider should clearly document the rationale for such treatment and its relation to the compensable injury. (f) Nonoperative Treatment Tables. (Refer to subsection (g) of this section for Surgical Indications). (1) Introduction to Nonoperative Treatment Tables. The treatments, set out in the following tables, represent treatment that is reasonable and medically necessary for a given period of time according to the diagnosis(es). The "Treatment Interventions" sections and "Diagnostic Procedures" sections of the Treatment Tables are in alphabetical order and do not infer numerical sequence. There will be some injured workers who require less treatment, and other injured workers who require more treatment than is outlined. This document serves as a guideline and should not be used as the sole reason for denial or requirement of treatment. The provision of specific services to an injured worker is dependent on the injured worker's diagnosis, and response to treatment. (2) Definition of Levels of Care. (A) Primary Level of Care. This level of care is generally considered to be appropriate for injured workers immediately following the compensable injury; however, the injured worker in this level of care may also be an early postoperative patient or may be experiencing an acute exacerbation of his or her chronic condition. Since partial or total cessation of work over a brief period of time is also considered to be part of the primary level of care, further treatment by a health care provider may not be considered necessary at this level of care. Little or no deconditioning has occurred due to the injury, immobilization or decreased activity. The goals are to prevent disease, alleviate or minimize the effects of the illness or injury and to maintain function. (B) Secondary Level of Care. This level of care is for those injured workers who have not returned to productivity after the normal healing process. This level of care is designed to facilitate return to productivity, including return to work in either full or modified duty, before the onset of a chronic condition. This level of care may also be indicated for the injured worker whose physical capacity to work still does not meet the job requirements for heavy physical labor after adequate treatment, thereby causing an inability to return to full duty. It is individualized, time limited and of limited intensity. The injured worker has a history of a limited-to-good response to early primary treatment with persistent symptoms limiting activities of daily living. The objective physical examination demonstrates findings suggestive of early deconditioning including loss of range of motion and/or strength with limitation of activities of daily living. Evidence of mental health or psychosocial barriers may be present which impede the injured worker's clinical progress. (C) Tertiary Level of Care. This level of care is interdisciplinary, individualized, coordinated, and intensive. It is designed for the injured worker who demonstrates physical and psychological changes consistent with a chronic condition. In general, differentiation from secondary treatment includes medical direction, intensity of services, severity of injury, individualized programmatic protocols with integration of physician, mental health, and disability or pain management services and specificity of physical/psychosocial assessment. This level includes a documented history of persistent failure to respond to nonoperative or operative treatment which surpasses the usual healing period for that injury. Psychosocial issues such as substance abuse, affective disorders, and other psychological disorders may be present. This level of care is indicated by a documented inhibition of physical functioning evidenced by pain sensitivity, loss of sensation, and nonorganic signs such as fear which produce a physical inhibition or limited response to reactivation treatment. This level of care may also be indicated for the injured worker whose physical capacity to work still does not meet the job requirements for heavy physical labor after adequate treatment, thereby causing an inability to return to full duty. This situation would be evidenced by an excessive transitional period of light duty or significant episodes of lost work time due to the need for continued medical treatment. This level of care is also indicated for those injured workers who cannot tolerate either primary or secondary levels of care. (D) Criteria to Distinguish Between Secondary and Tertiary Level of Care. Many factors may determine the choice between secondary and tertiary levels of care. In general, if lower cost secondary treatment can be effective, this level of care is preferred over the more expensive tertiary care. However, if the documented condition of the injured worker indicates the need for more intensive treatment, the tertiary level of care may be more appropriate. Key factors in determining the need for secondary versus tertiary care include: (i) the time elapsed since injury; (ii) the presence of psychosocial barriers to recovery such as but not limited to depression, substance abuse, personality disorder, etc., and the severity of these barriers; (iii) the lack of responsiveness to previously attempted treatment; (iv) the severity of physical/functional deconditioning; and/or (v) socioeconomic barriers to recovery. (3) Hand and Wrist Treatment Tables. (A) Figure 1: 28 TAC sec.134.1002 (f)(3)(A). (B) Figure 2: 28 TAC sec.134.1002 (f)(3)(B). (C) Figure 3: 28 TAC sec.134.1002 (f)(3)(C). (4) Elbow Treatment Tables. (A) Figure 4: 28 TAC sec.134.1002 (f)(4)(A). (B) Figure 5: 28 TAC sec.134.1002 (f)(4)(B). (C) Figure 6: 28 TAC sec.134.1002 (f)(4)(C). (D) Figure 7: 28 TAC sec.134.1002 (f)(4)(D). (E) Figure 8: 28 TAC sec.134.1002 (f)(4)(E). (F) Figure 9: 28 TAC sec.134.1002 (f)(4)(F). (5) Shoulder Treatment Tables. (A) Figure 10: 28 TAC sec.134.1002 (f)(5)(A). (B) Figure 11: 28 TAC sec.134.1002 (f)(5)(B). (C) Figure 12: 28 TAC sec.134.1002 (f)(5)(C). (D) Figure 13: 28 TAC sec.134.1002 (f)(5)(D). (E) Figure 14: 28 TAC sec.134.1002 (f)(5)(E). (F) Figure 15: 28 TAC sec.134.1002 (f)(5)(F). (6) Upper Extremities Tables. (A) Figure 16: 28 TAC sec.134.1002 (f)(6)(A). (B) Figure 17: 28 TAC sec.134.1002 (f)(6)(B). (C) Figure 18: 28 TAC sec. 134.1002 (f)(6)(C). (D) Figure 19: 28 TAC sec. 134.1002 (f)(6)(D). (E) Figure 20: 28 TAC sec. 134.1002 (f)(6)(E). (F) Figure 21: 28 TAC sec. 134.1002 (f)(6)(F). (G) Figure 22: 28 TAC sec. 134.1002 (f)(6)(G). (H) Figure 23: 28 TAC sec. 134.1002 (f)(6)(H). (I) Figure 24: 28 TAC sec. 134.1002 (f)(6)(I). (J) Figure 25: 28 TAC sec. 134.1002 (f)(6)(J). (K) Figure 26: 28 TAC sec. 134.1002 (f)(6)(K). (L) Figure 27: 28 TAC sec. 134.1002 (f)(6)(L). (M) Figure 28 : 28 TAC sec. 134.1002 (f)(6)(M). (N) Figure 29: 28 TAC sec.134.1002 (f)(6)(N). (O) Figure 30: 28 TAC sec. 134.1002 (f)(6)(O). (P) Figure 31: 28 TAC sec. 134.1002 (f)(6)(P). (Q) Figure 32: 28 TAC sec. 134.1002 (f)(6)(Q). (R) Figure 33: 28 TAC sec. 134.1002 (f)(6)(R). (S) Figure 34: 28 TAC sec. 134.1002 (f)(6)(S). (T) Figure 35: 28 TAC sec. 134.1002 (f)(6)(T). (U) Figure 36: 28 TAC sec. 134.1002 (f)(6)(U). (V) Figure 37: 28 TAC sec. 134.1002 (f)(6)(V). (W) Figure 38: 28 TAC sec. 134.1002 (f)(6)(W). (X) Figure 39: 28 TAC sec. 134.1002 (f)(6)(X). (Y) Figure 40: 28 TAC sec. 134.1002 (f)(6)(Y). (Z) Figure 41: 28 TAC sec. 134.1002 (f)(6)(Z). (AA) Figure 42: 28 TAC sec.134.1002 (f)(6)(AA). (BB) Figure 43: 28 TAC sec.134.1002 (f)(6)(BB). (CC) Figure 44: 28 TAC sec.134.1002 (f)(6)(CC). (DD) Figure 45: 28 TAC sec.134.1002 (f)(6)(DD). (g) Surgical Indications. Indications for surgery include but are not limited to the following list. (1) Hand and Wrist. Indications for surgery in Tendinitis/Stenosing Tenosynovitis/Musculotendinitis/Musculotendinous Problems include, but are not limited to: (A) unresponsive to at least a six week trial of conservative treatment; (B) tendon is locked in position. (2) Elbow. (A) Indications for surgery in Musculotendinitis/Tendinitis (Lateral Epicondylitis, Medial Epicondylitis, Musculotendinous and Periarticular Problems of the Elbow) include, but are not limited to: (i) failure to respond to non-operative treatment program for six months; (ii) no improvement after a total of three corticosteroid injections; (iii) presence of atrophy or weakness of the forearm extensors; and/or (iv) early surgical intervention (before six months), may be considered if the patient is severely disabled. (B) Indications for surgery in Olecranon Bursitis include, but are not limited to: (i) infection is present; or (ii) bursitis is recurrent despite aspiration. (3) Shoulder. Indications for surgery in Rotator Cuff (Sprain/Strain, Tear, Shoulder Impingement Syndrome) include, but are not limited to: (A) confirmed tear on Magnetic Resonance Imaging (MRI); (B) profound weakness; (C) no response to six months of conservative care. (4) Upper Extremities. (A) Neuropathy. (i) Indications for Surgery in Carpal Tunnel Syndrome. Indications for surgery include, but are not limited to: (I) failure to respond to non-operative treatment; (II) presence of thenar atrophy or weakness or significant hyperesthesia/dysesthesia (especially with objective impairment of sensibility as determined by two point discrimination or by light touch); (III) progressive symptoms; (IV) presence of space-occupying lesion in carpal canal; and/or (V) presence of compartment syndrome or extensive injury to forearm and wrist. (ii) General Indications for surgery include, but are not limited to EMG/NC studies indicative of compressive neuropathy accompanying positive physical findings and symptoms that are persistent despite conservative management. (B) Muscle/Ligament/Capsular Injuries (Acute/Chronic). (i) Indications for Surgery in Ulnar Collateral Ligament Injury of the Thumb (Sprain/Tear) include, but are not limited to: (I) any displaced or avulsed fracture of joint with ligament attachment; (II) complete ligament disruption; (III) Stener's lesion (displacement of the ulnar collateral ligament superficial to the abductor tendon); (IV) open joint injury; (V) contaminated wound. (ii) Indications for Surgery in DeQuervain's Stenosing Tenosynovitis include, but are not limited to: (I) incomplete response to nonoperative treatment after six weeks of treatment; (II) presence of a condition which is not amenable to nonsurgical treatment (e.g., separate abductor pollicis longus and extensor pollicis brevis tendon compartments). (iii) General Indications for surgery include, but are not limited to: (I) joint instability; (II) joint malalignment; (III) pain impairing the functional use of the joint. (C) Fractures. (i) Indications for Surgery in Clavicle Fracture include, but are not limited to: (I) displaced fractures or; (II) open fractures. (ii) Indications for Surgery in Fracture Surgical Neck, Humerus include, but are not limited to: (I) displaced or angulated fracture reduction; (II) joint involvement; (III) associated neurologic or vascular injury present; (IV) open fracture. (iii) Indications for Surgery in Distal Radius Fracture include, but are not limited to: (I) displaced fracture; (II) intra-articular fracture; (III) open fracture; (IV) acute carpal tunnel syndrome; (V) associated complex soft-tissue injury (consideration of compartment syndrome). (iv) General Indications for surgery include, but are not limited to: (I) displaced fracture; (II) intra-articular fracture; (III) open fracture; (IV) nonunion of fracture. (D) Avascular Necrosis. (E) Intraarticular Pathology (Traumatic Arthritis). Indications for surgery include, but are not limited to: (i) persistent synovitis; (ii) locking of the joint; (iii) painful arthritis documented radiologically, uncontrollable with NSAID. (F) Joint Instability. Indications for surgery include, but are not limited to repeated episodes of instability despite conservative therapy. (G) Lacerations (Tendons, Nerves). Indications for surgery include, but are not limited to: (i) loss of function; (ii) contaminated wound. (H) Crush Injuries Indications for surgery include, but are not limited to: (i) open fracture(s); (ii) nail bed disruption; (iii) malalignment of fragments. (h) Glossary. (1) Acceptable standards of care. (A) Standard - something established by authority, custom, or general consent as a model or example; the generally accepted norm for quality and quantity. (B) Acceptable standards of care - outlines of the types of tests and treatments which are established as normal and warranted for a specific type of injury. (2) Active care vs. passive care. (A) Active care - modes of treatment or care requiring that the injured worker participate in the level of care received. (B) Passive care - modes of treatment or care which do not require the injured worker to participate in his or her care; i.e., the care is "done to" or "applied to" the injured worker (e.g., hot packs or cold packs) (3) Acute - beginning abruptly with marked intensity or sharpness then subsiding after a relatively short period of time. (4) Aggravation - an act or circumstance that intensifies or makes worse a pre- existing condition. (5) Algorithm - a step-by-step procedural pathway for solving a problem or accomplishing some end. (6) Assessment/Evaluation - the act or process of inspecting or testing for evidence of injury, disease or abnormality. (7) Chronic - developing slowly and persisting for a long period of time, often for the remainder of the lifetime of the individual. (8) Chronic pain management - a program which provides coordinated, goal- oriented, interdisciplinary team services to reduce pain, improve functioning, and decrease the dependence on the health care system of persons with chronic pain syndrome. (9) Clinical plateau - a period of time of relative stability in which the injured worker displays minimal or minor changes in his/her condition. (10) Clinical progress versus lack of clinical progress. (A) Clinical progress - documented improvement in the condition of the injured worker, in response to the injured worker's current treatment program. (B) Lack of clinical progress - documented absence of change in the condition of the injured worker over a period of time of no less than one month, requiring re-evaluation of the injured worker's condition and re-evaluation of the current treatment program. (11) Consulting doctor - a doctor who provides an opinion or advice regarding the evaluation and/or management of a specific problem, as requested by the treating doctor, the Commission, or the insurance carrier. A consulting doctor may only initiate diagnostic and/or therapeutic services with approval from the treating doctor (see the definition of "referral doctor" in paragraph (40) of this subsection). (12) Decompensation - the inability of the body to maintain adequate functioning in the presence of an injured, abnormal, or nonfunctioning body system (13) Denial parameters - a set of established elements or boundaries beyond which testing or treatment may be denied. (14) Diagnosis - the art or act of identifying a disease or injury from evaluation of its signs and symptoms. (15) Diagnostic module - a standard which establishes normal parameters or boundaries of time within which to perform studies to assist in identifying a disease, injury, or abnormality. (16) Diagnostic tests - objective studies performed to assist in identifying a disease, injury, or abnormality. (17) Doctor - a doctor of medicine, osteopathic medicine, optometry, dentistry, podiatry, or chiropractic who is licensed and authorized to practice. (18) Exacerbation - an increase in the seriousness of a disease or disorder as marked by greater intensity in the signs or symptoms of the patient being treated. (19) Examination - the act or process of inspecting or testing for evidence of disease, injury, or abnormality. (20) First doctor. (A) First - preceding all others in time (B) First doctor - the initial doctor who evaluates and treats the injured worker, and who may or may not become the treating doctor. (21) Focus review - to critically examine the prospective, concurrent, and retrospective care received by the injured worker as related to the compensable injury. (22) Frequency of intervention - the number of occurrences in a specified time in which the health care provider acts to treat the injured worker. (23) Functional capacity evaluation - a battery of tests administered and evaluated to determine the injured worker's ability to perform tasks related to both his or her daily activities and his or her job performance. This evaluation consists of the following elements: (A) a physical examination and neurological evaluation which includes an assessment of the physical appearance of the injured worker, flexibility of the extremity joint or spinal region, posture and deformities, vascular integrity, the presence or absence of sensory deficit, muscle strength and reflex symmetry; (B) a physical capacity evaluation which includes quantitative measurements of range of motion and muscular strength and endurance; and (C) a dynamic functional abilities test which includes activities of daily living, hand function tests, cardiovascular endurance tests, and static positional tolerance. (24) Health care facility - a hospital, emergency clinic, outpatient clinic, or other facility providing health care. (25) Health care practitioner - (A) an individual who is licensed to provide or render and provides or renders health care; or (B) a non-licensed individual who provides or renders health care under the direction or supervision of a doctor. (26) Health care provider - a health care facility or health care practitioner (27) Impairment - any anatomic or functional abnormality or loss existing after maximum medical improvement that results from a compensable injury and is reasonably presumed to be permanent. (28) Interdisciplinary programs - programs in which the delivery of services is provided by more than one type of health care service (e.g., occupational therapy, physical therapy, counseling services, medical services) and in which there is a coordination between the disciplines regarding the care plan and the delivery of care to the injured worker. This type of program includes work hardening, outpatient medical rehabilitation and chronic pain management. (29) Intervention - the act or fact of interfering with a condition to modify it or with a process to change its course. (30) Level of service - refers to primary, secondary, or tertiary care. (31) Maximum Medical Improvement (MMI) - the earlier of the following three items: (A) the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated; or (B) the expiration of 104 weeks from the date on which income benefits begin to accrue; or (C) the date determined as provided by sec.408.104 of the Texas Labor Code. (32) Medical necessity - the determination that the tests or treatment provided is required based on the presenting signs and symptoms. (33) Module - a standard or unit of measurement (34) Objective findings - signs, or test results that can be measured or quantified or are otherwise perceptible to persons other than the affected individual. A medical finding of impairment resulting from a compensable injury, based on competent medical evidence, that is independently confirmable by a doctor, including a designated doctor, without reliance on the subjective symptoms perceived by the employee. (35) Outpatient medical rehabilitation - a program of coordinated and integrated services, evaluation, and/or treatment with emphasis on improving the functional levels of the persons served. The program is interdisciplinary in nature and is applicable to those persons who have severe functional limitations of recent onset or recent regression or progression or those persons who have not had prior exposure to rehabilitation. Services may be directed toward the development and/or maintenance of the optimal level of functioning and community integration of the persons served. (36) Primary/secondary/tertiary levels of care. (A) Primary Level of Care. This level of care is generally considered to be appropriate for injured workers immediately following the compensable injury; however, the injured worker in this level of care may also be an early postoperative patient or may be experiencing an acute exacerbation of his or her chronic condition. Since partial or total cessation of work over a brief period of time is also considered to be part of the primary level of care, further treatment by a health care provider may not be considered necessary at this level of care. Little or no deconditioning has occurred due to the injury, immobilization or decreased activity. The goals are to prevent disease, alleviate or minimize the effects of the illness or injury and to maintain function. (B) Secondary Level of Care. This level of care is for those injured workers who have not returned to productivity after the normal healing process. This level of care is designed to facilitate return to productivity, including return to work in either full or modified duty, before the onset of a chronic condition. This level of care may also be indicated for the injured worker whose physical capacity to work still does not meet the job requirements for heavy physical labor after adequate treatment, thereby causing an inability to return to full duty. It is individualized, time limited and of limited intensity. The injured worker has a history of a limited-to-good response to early primary treatment with persistent symptoms limiting activities of daily living. The objective physical examination demonstrates findings suggestive of early deconditioning including loss of range of motion and/or strength with limitation of activities of daily living. Evidence of mental health or psychosocial barriers may be present which impede the injured worker's clinical progress. (C) Tertiary Level of Care. This level of care is interdisciplinary, individualized, coordinated, and intensive. It is designed for the injured worker who demonstrates physical and psychological changes consistent with a chronic condition. In general, differentiation from secondary treatment includes medical direction, intensity of services, severity of injury, individualized programmatic protocols with integration of physician, mental health, and disability or pain management services and specificity of physical/psychosocial assessment. This level includes a documented history of persistent failure to respond to nonoperative or operative treatment which surpasses the usual healing period for that injury. Psychosocial issues such as substance abuse, affective disorders, and other psychological disorders may be present. This level of care is indicated by a documented inhibition of physical functioning evidenced by pain sensitivity, loss of sensation, and nonorganic signs such as fear which produce a physical inhibition or limited response to reactivation treatment. This level of care may also be indicated for the injured worker whose physical capacity to work still does not meet the job requirements for heavy physical labor after adequate treatment, thereby causing an inability to return to full duty. This situation would be evidenced by an excessive transitional period of light duty or significant episodes of lost work time due to the need for continued medical treatment. This level of care is also indicated for those injured workers who cannot tolerate either primary or secondary levels of care. (37) Proper clinical documentation - written records which meet the requirements outlined by statute and rule and which convey the following information to the required parties: (A) a description of the injury, including the extent, and severity and events surrounding that injury; (B) a description of any pre-existing, complicating, and/or any non-related conditions; (C) a treatment plan, including proposed methods, frequency, and probable duration of treatment, with expected outcomes; (D) updates to the treatment plan as needed, including the clinical progress of the injured worker and any revisions needed to the treatment plan in light of the injured worker's response to treatment; (E) education/information provided to the injured worker regarding his or her injury and treatment plan, and the injured worker's compliance with this treatment plan; and (F) documentation substantiating the need for deviation from the guideline, if necessary. (38) Reason for denial - refer to paragraph (13) of this subsection on denial parameters. (39) Referral - the process of directing or redirecting (as a medical case or a patient) to an appropriate specialist or agency for definitive treatment. (40) Referral doctor - a consulting doctor who initiates health care treatments at the request or with the consent of the treating doctor. (41) Secondary treatment - refer to paragraph (36)(B) of this subsection regarding secondary level of care. (42) Self-referral - the direction of a patient to another doctor, institution or facility wherein the referring doctor has a financial or conflict of interest element. (43) Significant neurological deficit - rapidly progressing symptoms of sensory impairment, progressive numbness, or increased physiological impairment such as severe weakness, bowel or bladder dysfunction directly related to the spinal injury. (44) Single point of contact - one person whom the doctor/health care provider(s) may contact for all questions regarding a specific injured worker. (45) Sprain - an injury to a ligament. (A) Mild (Grade 1) - only a few fibers are torn; ligament is mostly intact and the joint is stable; (B) Moderate (Grade 2) - more fibers are torn, resulting in some instability with abnormal joint motion and some functional loss; (C) Severe (Grade 3) - ligaments are completely disrupted and instability may be severe (synonymous with marked). (46) Static - characterized by a lack of movement or change. (47) Strain - an injury to a muscle. (A) Mild (Grade 1) - only a few fibers are torn; muscle is mostly intact and functional; (B) Moderate (Grade 2) - more muscle fibers are torn resulting in muscle pain with contraction; (C) Severe (Grade 3) - tendons are completely disrupted, extreme pain and loss of use of muscle. (48) Tertiary treatment - refer to paragraph (36)(C) of this subsection regarding tertiary level of care. (49) Subjective complaints - report of signs or symptoms, perceivable only by the injured employee, relating to the injury and which cannot be independently verified or confirmed by recognized laboratory or diagnostic tests or signs observable by physical examination. (50) Time limited - a specific duration of clock or calendar time which is not exceeded on a routine basis. (51) Treating doctor - the doctor primarily responsible for the employee's health care for an injury (synonymous with the terms "primary gatekeeper" and "gatekeeper"). (52) Treatment duration - calendar time allowed for treatment for a specific level of care. (53) Treatment module - a standard which establishes routine parameters of time within which to provide therapy for the illness or injury. (54) Treatment plan - a written document which must contain the following components: (A) type of intervention/treatment modality; (B) frequency of treatment; (C) expected duration of treatment; (D) expected clinical response to treatment; and (E) specification of a re-evaluation timeframe. (55) Work conditioning - a highly structured, goal-oriented, individualized treatment program using real or simulated work activities in conjunction with conditioning tasks. Work conditioning is a single disciplinary approach. (56) Work hardening - a highly structured, goal-oriented, individualized treatment program designed to maximize the ability of the persons served to return to work. Work hardening programs are interdisciplinary in nature with a capability of addressing the functional, physical, behavioral, and vocational needs of the injured worker. Work hardening provides a transition between management of the initial injury and return to work while addressing the issues of productivity, safety, physical tolerances, and work behaviors. Work hardening programs use real or simulated work activities in a relevant work environment in conjunction with physical conditioning tasks. These activities are used to progressively improve the biomechanical, neuromuscular, cardiovascular/metabolic, behavioral, attitudinal, and vocational functioning of the persons served. (i) Bibliography. The following items comprise a bibliography for this guideline. (1) The American Academy of Orthopaedic Surgeons. REVISED CLINICAL POLICY DRAFTS. May, 1995. (2) The American Academy of Orthopaedic Surgeons. PHASE ONE DRAFT ALGORITHMS. National Orthopaedic Leadership Conference. May, 1995. (3) The American College of Occupational and Environmental Medicine, Committee on Practice Parameters. UPPER EXTREMITY GUIDELINE. Unpublished, 1994. (4) American Society for Surgery of the Hand. REGIONAL REVIEW COURSE IN HAND SURGERY SYLLABUS. 1993. (5) Anderson, D., Zyribulis, R., Ciullo, J. "Scapular Manipulation for Reduction of Anterior Shoulder Dislocations." CLINICAL ORTHOPAEDICS AND RELATED RESEARCH. 1982. (164). pp 181-3. (6) Anderson. H., Johannsen H.V., Stephen, O., Sjbjerg, J.O., "Frozen Shoulder. Arthroscopy and Manipulation in General Anesthesia' Followed by Early Passive Mobilization." UGESKR LAEGER, 1996 JAN 8, 158 (2):147-50. (7) Bonebrake, Alan R., Fernandez,Jeffrey E., Marley, Robert J., Dahalan, Jalauddin B., and Kilmer, Kelvin J. "A Treatment for Carpal Tunnel Syndrome: Evaluation of Objective and Subjective Measures." JOURNAL OF MANIPULATIVE AND PHYSIOLOGICAL THERAPEUTICS. Vol. 13, No. 9. November/December, 1990. (8) Bonebrake, A., Fernandez, J. Dahalan, J., Marley, R. "A Treatment for Carpal Tunnel Syndrome: Results of a Follow-Up Study." JOURNAL OF MANIPULATIVE AND PHYSIOLOGICAL THERAPEUTICS 1993 MAR 16(3) pp. 125-39. (9) Brier, Steven R. "Rotator Cuff Disease: Current Trends in Orthopedic Management." JOURNAL OF MANIPULATIVE AND PHYSIOLOGICAL THERAPEUTICS. Vol. 15, No. 2. February, 1992. (10) Brox, Jens Ivar, Staff, Peer H., Ljunggren, Anne Elisabeth, and Brevik, John Ivar. "Arthroscopic Surgery Compared with Supervised Exercises in Patients with Rotator Cuff Disease (Stage II Impingement Syndrome)." BMJ. Vol. 307. October 9, 1993. (11) Burton, A. "A Comparative Trial of Forearm Strap and Topical Antiinflammatory as Adjuncts to Manipulative Therapy in Tennis Elbow." MANUAL MEDICINE. 1988. 3(4). pp 141-3. (12) Campbell, Donald T. and Stanley, Julian C. "Experimental and Quasi- Experimental Designs for Research." Hougton Miffling Co., 1963. (13) Cantu, Robert I. and Grodin, Alan J. MYOFASCIAL MANIPULATION: THEORY AND CLINICAL APPLICATION. Aspen Publishers, Inc. 1992. (14) Crawford, John P. and Noble, William John. "Anterior Interosseous Nerve Paralysis: Cubital Tunnel (Kiloh-Nevin) Syndrome." JOURNAL OF MANIPULATIVE AND PHYSIOLOGICAL THERAPEUTICS. Vol. 11, No. 3. June, 1988. (15) De Branche, B "Epicondylian Tendinitis Treated by Cervical Manipulation: A Study in 58 Patients." ANNALES READAPTATION ET DE MEDICINE PHYSIQUE. 1986. 29. pp 65-74. (16) Dobrusin, Richard. "An Osteopathic Approach to Conservative Management of Thoracic Outlet Syndromes." THE JOURNAL OF THE AMERICAN OSTEOPATHIC ASSOCIATION. Vol. 89, No. 8. August, 1989. (17) Duncan, K.H., Lewis, R.C. Jr., Raez, G., Nordyke, M.D., "Treatment of Upper Extremity Reflex Sympathetic Dystrophy with Joint Stiffness Using Sympatholytic Bier Blocks and Manipulation." ORTHOPEDICS 1988 JUN 11(6) pp. 883-886. (18) Eddie, G. "A Series of 43 Patients Complaining of Shoulder Pain Who Responded to Treatment of the First Rib." JOURNAL OF ORTHOPAEDIC MEDICINE. 1995. 17(2). pp 62-5. (19) Ekelund, Al, Rydell, N. "Combination Treatment for Adhesive Capsulitis of the Shoulder." CLINIAL ORTHOPEDICS. 1992 SEP; 282:105-109. (20) Feinberg, Ed. "Bicipital Tendinitis: The Glass Arm Pitcher." ICA INTERNATIONAL REVIEW OF CHIROPRACTIC. Vol. 49. May/June, 1993. (21) Garland, D., Razza, B., Waters, R. "Forceful Joint Manipulation in Head- Injured Adults with Heterotopic Ossification." CLINICAL ORTHOPAEDICS AND RELATED RESEARCH. 1982 SEP. 169. pp 133-8. (22) Gelvberman, Richard H., Eaton, Richard, and Urbaniak, James R. "Peripheral Nerve Compression." INSTRUCTIONAL COURSE LECTURES. The American Academy of Orthoapaedic Surgeons, James D. Heckman, Editor. March, 1994. (23) Gilkey, David P. and Williams, Holly A. "Ergonomics & CTDs: The Problems, Causes, Enforcement and Solutions." ACA JOURNAL OF CHIROPRACTIC. August, 1994. (24) Goff, Charles W., Alden, John O., and Aldes, John H. TRAUMATIC CERVICAL SYNDROME AND WHIPLASH. J.B. Lippincott Company. (25) Greenman, Philip E. PRINCIPLES OF MANUAL MEDICINE. Williams & Wilkins. (26) Hammer, Warren I. FUNCTIONAL SOFT TISSUE EXAMINATION AND TREATMENT BY MANUAL METHODS: THE EXTREMITIES. Aspen Publishers, Inc. 1991. (27) Hill, JJ JR., Bogumill, H. "Manipulation in the Treatment of Frozen Shoulder." ORTHOPEDICS 1988 SEP; 11(9):1255-1260. (28) Hosshmand, Hooshang. CHRONIC PAIN: REFLEX SYMPATHETIC DYSTROPHY PREVENTION AND MANAGEMENT. CRC Press, Inc. 1993. (29) Irowa, G. Ozin. "Avascular Necrosis of the Carpal Lunate: A Case Report." JOURNAL OF MANIPULATIVE AND PHYSIOLOGICAL THERAPEUTICS. Vol. 10, No. 6. December, 1987. (30) Jahn, Warren T. "Spontaneously Reduced Partial Shoulder Dislocation: A Case Report and Literature Review." JOURNAL OF MANIPULATIVE AND PHYSIOLOGICAL THERAPEUTICS. Vol. 5, No. 1. March, 1982. (31) Jaskoviak, Paul A. and Schafer, R.C. APPLIED PHYSIOTHERAPY: PRACTICAL CLINICAL APPLICATIONS WITH EMPHASIS ON THE MANAGEMENT OF PAIN AND RELATED SYNDROMES. Second Edition. The American Chiropractic Association. (32) Kushner, Shirley and Reid, David C. "Manipulation in the Treatment of Tennis Elbow." THE JOURNAL OF ORTHOPAEDIC AND SPORTS PHYSICAL THERAPY. Vol. 7, No. 5. March, 1986. (33) Lea & Febiger, Publisher. ARTHRITIS AND ALLIED CONDITIONS: A TEXTBOOK OF RHEUMATOLOGY. Vol. 12. Twelfth Edition. 1993. (34) Levine, David Z. "Burning Pain in an Extremity: Breaking the Destructive Cycle of Reflex Sympathetic Dystrophy." POSTGRADUATE MEDICINE. Vol. 90, No. 2. August, 1991. (35) Levy, O., Rath, E., Atar, D. "Combined Treatment for Adhesive Capsulitis of the Shoulder." HAREFUAH 1997 NOV 2; 133(9):357-359. (36) Liebenson, Craig S. "Thoracic Outlet Syndrome: Diagnosis and Conservative Management." JOURNAL OF MANIPULATIVE AND PHYSIOLOGICAL THERAPEUTICS. Vol. 11, No. 6. December, 1988. (37) Mariano, Kurt A., McDougle, Mark A., and Tanksley, Gary W. "Double Crush Syndrome: Chiropractic Care of an Entrapment Neuropathy." JOURNAL OF MANIPULATIVE AND PHYSIOLOGICAL THERAPEUTICS. Vol. 14, No. 4. May, 1991. (38) Mierau, D., Cassidy, J., Bowen, V., Dupuis, P., Noftall, F. "Manipulation and Mobilization of the Quantitative Radiographic and Range of Motion Study." MANUAL MEDICINE. 1988. 3(4). pp 135-40. (39) Mior, Silvano A. and Dombrowsky, N. "Scapholunate Failure: A Long-Term Clinical Follow-Up." JOURNAL OF MANIPULATIVE AND PHYSIOLOGICAL THERAPEUTICS. Vol. 15, No. 4. May, 1992. (40) Muramatsu, K., Kawai, S., Akino, T., Sunago, K. Doi, K., "Treatment of Chronic Regional Pain Syndrome Using Manipulation Therapy and Regional Anesthesia." J. TRAUMA 1998 JAN 44(1) pp. 189-192. (41) Nause, E. "Efficient treatment of epicondylitis." MANUELLE MENDIZIN. 1987. 25. pp 82-85 (42) Ogilvie-Harris, D.J.; Biggs, D.J., Fitsialos, D.P., Mackay, M. "The Resistant Frozen Shoulder." Manipulation Versus Arthroscopic Release. CLIN ORTHOP, 1995 OCT (319): 238-48. (43) Quigley. T.,"Checkerein Shoulder: A Type of "Frozen" Shoulder" CLINICAL ORTHOPEDICS AND RELATTED RESEARCH 1982 (164) pp. 4-9. (44) Reed, Presley, Editor. THE MEDICAL DISABILITY ADVISOR. Second Edition. LRP Publications. 1994. (45) Rizk,T., Christopher, R., Pinals, R., Higgins, A., Frix, R. "Adhesive Capsulitis (Frozen Shoulder): A New Approach to its Management." ARCHIVES OF PHYSICAL MEDICINE AND REHABILITATION. 1983. 64. pp 29-33. (46) Rogoff, Joseph B., Editor. MANIPULATION, TRACTION AND MASSAGE. Second Edition. Williams & Wilkins. (47) Roubal, P.J., Dorbitt, D., Placzek, J.D. "Glenohumeral Gliding Manipulation Following Interscalene Brachial Plexus Block in Patients with Adhesive Capsulitis." J ORTHOPEDIC SPORTS PHYSICAL THERAPY. 1996 AUG; 24(2): 66-77. (48) Schafer, R.C. CHIROPRACTIC MANAGEMENT OF SPORTS AND RECREATIONAL INJURIES. Williams & Wilkins. (49) Schnatz, Peter and Steiner, Charles. "Tennis Elbow: A Biomechanical and Therapeutic Approach." THE JOURNAL OF THE AMERICAN OSTEOPATHIC ASSOCIATION. Vol. 93, No. 7. July, 1993. (50) Schultz, August L. THE SHOULDER, ARM AND HAND SYNDROME. (51) Shrode, Larry W. "Treating Shoulder Impingement Using the Supraspinatus Synchronization Exercise." JOURNAL OF MANIPULATIVE AND PHYSIOLOGICAL THERAPEUTICS. Vol. 17, No. 1. January 1994. (52) Sin, Y.M., Sedgewick, A.D., Muckay, A.R., Bates, M.B., and Willoughby, D.A. "Effect of Electric Acupuncture Stimulation on Acute Inflammation." AMERICAN JOURNAL OF ACUPUNCTURE. Vol 11, No. 4. October-December, 1983. (53) State of California, Department of Industrial Relations, Division of Workers' Compensation. UPPER EXTREMITY GUIDELINES. Unpublished. (54) State of Oregon, Department of Consumer and Business Services, Workers' Compensation Division. CARPAL TUNNEL SYNDROME: DIAGNOSIS AND TREATMENT GUIDELINE. Draft, 10/10/94. (55) Steiner, Charles. "Osteopathic Manipulative Treatment: What Does It Really Do?" THE JOURNAL OF THE AMERICAN OSTEOPATHIC ASSOCIATION. Vol. 94, No. 1. January, 1994. (56) Sucher, Benjamin M. "Myofascial Manipulative Release of Carpal Tunnel Syndrome: Documentation with Magnetic Resonance Imaging." THE JOURNAL OF THE AMERICAN OSTEOPATHIC ASSOCIATION. Vol. 93, No. 12. December, 1993. (57) Sucher, Benjamin M. "Myofascial Release of Carpal Tunnel Syndrome." THE JOURNAL OF THE AMERICAN OSTEOPATHIC ASSOCIATION. Vol. 93, No. 1. January, 1993. (58) Sucher, Benjamin M. "Palpatory Diagnosis and Manipulative Management of Carpal Tunnel Syndrome." THE JOURNAL OF THE AMERICAN OSTEOPATHIC ASSOCIATION. Vol. 94, No. 8. August, 1994. (59) Sucher, Benjamin M. "Thoracic Outlet Syndrome -- A Myofascial Variant: Part 1. Pathology and Diagnosis." THE JOURNAL OF THE AMERICAN OSTEOPATHIC ASSOCIATION. Vol. 90. No. 8. August, 1990. (60) Sucher, Benjamin M. "Thoracic Outlet Syndrome -- A Myofascial Variant: Part 2. Treatment." THE JOURNAL OF THE AMERICAN OSTEOPATHIC ASSOCIATION. Vol. 90, No. 9. September, 1990. (61) Thomas, D., Williams, R.A., and Smith, D.S. "The Frozen Shoulder: A Review of Manipulative Treatment." RHEUMATOLOGY AND REHABILITATION. Vol. 19, No. 3. 1980. (62) Urist, Marshall R., Editor-in-Chief. CLINICAL ORTHOPAEDICS AND RELATED RESEARCH. Number Two Hundred Eighty-Two. J.B. Lippincott Co. (63) Vernon, Howard. "The Role of Plethysmography in the Chiropractic Management of Costoclavicular Syndromes: Review of Principles and a Case Report." JOURNAL OF MANIPULATIVE AND PHYSIOLOGICAL THERAPEUTICS. Vol. 5, No. 1. March, 1982. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809118 Susan M. Cory General Counsel Texas Workers' Compensation Commission Effective date: June 30, 1998 Proposal publication date: February 27, 1998 For further information, please call: (512) 440-3972 TITLE 30. ENVIRONMENTAL QUALITY PART I. Texas Natural Resource Conservation Commission CHAPTER 113. Control of Air Pollution From Toxic Materials The commission adopts new sec.113.1, concerning Definitions and the repeal of sec.113.21, concerning Beryllium, without changes to the proposed text as published in the April 3, 1998 issue of the Texas Register (23 TexReg 3416). The commission also adopts the deletion of the division, Beryllium, and the change of the Subchapter A title from "Hazardous Air Pollutants" to "Definitions." EXPLANATION OF ADOPTED RULES This adoption is part of the regulatory reform effort. Regulatory reform projects identify rules and regulations which need clarification for the benefit of the public; are outdated; impose regulatory requirements in excess of their contribution to the commission's mission; or are duplicated, unnecessary, or inconsistent. The adopted repeal will reduce duplication by controlling beryllium air emissions by individual New Source Review (NSR) permit instead of by rule. Permit requests with beryllium emissions submit technical representations stating that they comply with the beryllium emission standard in Chapter 113. The NSR Permit Division reviews the technical representations and includes the emissions limit in the Maximum Allowable Emissions Rate Table. After the repeal of the state beryllium standard, any permit request will be subject to a standard NSR permit review which includes computer dispersion modeling and an impacts analysis using Effects Screening Levels (ESLs). The permit review will be conducted at the same level as the repealed Chapter 113 beryllium standard. The adopted new subchapter for definitions will make the Chapter 113 format more consistent with other air regulations. The adopted new definition for "Section 111(d) State Plan" in Subchapter A partially implements the Federal Clean Air Act (FCAA), sec.111(d) concerning performance standards for existing sources. The definition is being adopted in preparation for rulemaking to implement the Municipal Solid Waste Landfills Emissions Guidelines, and the Hospital/Medical/Infectious Waste Incinerator Emissions Guidelines and associated sec.111(d) State Plan revisions as required by the federal rules promulgated on March 12, 1996 (61 Federal Register 9905) and on September 15, 1997 (62 Federal Register 48347) respectively. FINAL REGULATORY IMPACT ANALYSIS The commission has reviewed the rulemaking in light of the regulatory analysis requirements of Texas Government Code, sec.2001.0225, and has determined that the rulemaking is not subject to sec.2001.0225 because it does not meet the definition of a "major environmental rule" as defined in the act, and it does not meet any of the four applicability requirements listed in sec.2001.0225(a). TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for this rule under Texas Government Code, sec.2007.043. The following is a summary of that assessment. The specific purpose of this rulemaking is to reduce duplication and improve compliance by controlling beryllium air emissions by individual New Source Review permit instead of by rule, and make the Chapter 113 format more consistent with other air regulations through the addition of a subchapter for definitions. Promulgation and enforcement of this rulemaking will not affect private real property. COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW The commission has determined that this rulemaking relates to an action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resource Code,sec.33.201 et. seq.), and the commission's rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by 31 TAC sec.505.11(b)(2) and 30 TAC sec.281.45(a)(3), relating to actions and rules subject to the CMP, commission rules governing air pollutant emissions must be consistent with the applicable goals and policies of the CMP. The commission has reviewed this rulemaking for consistency with the CMP goals and policies in accordance with the rules of the Coastal Coordination Council and has determined that the rulemaking is consistent with the applicable CMP goals and policies. The CMP policy applicable to this rulemaking action is the policy that commission rules comply with regulations at Title 40, Code of Federal Regulations (40 CFR), to protect and enhance air quality in the coastal area (31 TAC sec.501.14(q)). This proposal does not change existing requirements which already comply with regulations at 40 CFR, and is therefore consistent with this policy. HEARING AND COMMENTERS A public hearing on the proposal was held in Austin on April 28, 1998, in Austin, however, there were no attendees at the hearing. The comment period closed on May 4, 1998, and only the U.S. Environmental Protection Agency (EPA) submitted written comments. ANALYSIS OF TESTIMONY EPA stated that the proposed new definition, "Section 111(d) State Plan," accurately reflects the intent of sec.111(d) of the FCAA. SUBCHAPTER A. Definitions 30 TAC sec.113.1 STATUTORY AUTHORITY The new section is adopted under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA because the primary purposes of this rulemaking are to rescind a subchapter which contains an air emission standard which is redundant to the permitting process, and to add a new Subchapter A, concerning Definitions, to make air regulations more consistent in format with each other. The new section is also adopted under the TCAA, sec.382.011 which provides the commission with the authority to control the quality of the state's air, and sec.382.012 which provides for the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 3, 1998. TRD-9808953 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 23, 1998 Proposal publication date: April 3, 1998 For further information, please call: (512) 239-1970 30 TAC sec.113.21 STATUTORY AUTHORITY The repeal is adopted under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 3, 1998. TRD-9808954 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 23, 1998 Proposal publication date: April 3, 1998 For further information, please call: (512) 239-1970 CHAPTER 330. Municipal Solid Waste The Texas Natural Resource Conservation Commission (commission) adopts amendments to sec.330.4, and new sec.330.26, concerning municipal solid waste management. Section 330.4 is adopted with changes to the proposed text as published in the March 6, 1998, issue of the Texas Register (23 TexReg 2253). Section 330.26 is adopted without changes to the proposed text as published and will not be republished. EXPLANATION OF ADOPTED RULE These adopted sections are based on legislation passed by the 75th Texas Legislature in 1997. The purpose of these rules is to establish additional general rules for the storage and disposal of litter generated and disposed of on an individual's property. The statutory basis for the rules is found in House Bill (HB) 717, 75th Legislature, which amended the Texas Health and Safety Code, Chapter 365, the Texas Litter Abatement Act, sec.365.011 and sec.365.012; Senate Bill (SB) 1782, 75th Legislature, which amended the Texas Health and Safety Code, Chapter 361, the Solid Waste Disposal Act, sec.361.116; and the Texas Health and Safety Code, Chapter 361, the Solid Waste Disposal Act, sec.361.011. HB 717 directs the commission to establish rules to regulate temporary storage for future disposal of litter or other solid waste by a person on land owned by the person or the person's agent. These rules establish a permit exemption in new sec.330.4(v) following the directive from HB 717 that a landowner may dispose of litter or other solid waste on his own land without commission authorization if the litter or other solid waste is generated and disposed of on land the individual owns, and the disposal is not for commercial purposes. Commercial purpose as quoted from the Texas Litter Abatement Act means the purpose of economic gain. Additionally, these rules follow direction from SB 1782 by adding a permit exemption to new sec.330.4(w) regarding the disposal of animal carcasses for roadway maintenance. New sec.330.26 establishes rules regulating the temporary storage for future disposal of litter or other solid waste as required by HB 717. New sec.330.26 simply requires waste from this source to be stored in the normal manner currently established in existing sec.330.22 for similar wastes. FINAL REGULATORY IMPACT ANALYSIS The commission has reviewed the rulemaking in light of the regulatory analysis requirement of Texas Government, sec.2001.0225, and has determined that the rulemaking is not subject to sec.2001.0225 because the rule does not meet the full applicability of a "major environmental rule" as defined in the act. The adopted rule will not have an adverse affect in a material way on the economy, environment or public health and safety of any sector of the state. The adopted rule does not exceed any federal standard and is required by state law. The adopted rule does not exceed any expressed requirement of state law. There is no delegation agreement or contract directly applicable to the adopted rule. The rule adoption is made under specific law. TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for these rules pursuant to Texas Government Code Annotated sec.2007.043. The following is a summary of that Assessment. The specific purpose of the rules is to regulate activities associated with temporary storage and future disposal of litter and other solid waste by a person on land owned by that person. The rules will establish that agency authorization in the form of a registration or the previously required permit are not required for the disposal of litter or other solid waste generated by an individual and disposed of by that individual on land owned by that individual. The rules will provide the specific standards for storage of such waste. The rules are necessary to advance the agency's mission of providing adequate public health and safety relative to the management of municipal solid waste. The rules will establish exemptions from authorization standards and will establish storage standards which currently do not exist under Chapter 330. The rules will provide significant clarification regarding the procedures and criteria to be used by the TNRCC and the regulated community in the requirements for the review and approval of permit applications for regulated activities under this chapter. The commission has determined that this rule will not create a burden on private real property. The Texas Health and Safety Code, Chapter 365, the Texas Litter Abatement Act, sec.365.012, states that a landowner may only dispose of litter or other solid waste on his own land if the litter is or waste is generated on land the individual owns, and the disposal is not for or resulting from a commercial purpose. New sec.330.26 establishes rules regulating the temporary storage for future disposal of litter or other solid waste as required by HB 717. Additionally, these rules follow direction from SB 1782 by adding a permit exemption regarding the disposal of animal carcasses for roadway maintenance. Through the creation of permit exemptions for this kind of disposal, the commission is not creating a regulatory burden, but is simplifying compliance with an statutory requirement. COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW The commission has determined that this rulemaking action is subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, sec.sec.33.201 et. seq.), the rules of the Coastal Coordination Council (31 TAC Chapters 501-506), and the commission's rules in 30 TAC Chapter 281, Subchapter B, concerning consistency with the Texas Coastal Management Program. As required by 31 TAC sec.505.11(b)(4) and 30 TAC sec.281.45(a)(3) relating to actions and rules subject to the CMP, agency rules regarding solid waste management must be consistent with the goals and policies of the CMP to protect the coastal area. The CMP goal applicable to the proposed rulemaking is the goal to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (CNRAs). Applicable policies are construction and operation of solid waste treatment, storage, and disposal facilities, such that new solid waste facilities and areal expansions of existing solid waste facilities shall be sited, designed, constructed, and operated to prevent releases of pollutants that may adversely affect CNRAs and, at a minimum, comply with standards established under the Solid Waste Disposal Act, 42 United States Code Annotated, sec.sec.6901 et seq. Promulgation and enforcement of this rule is consistent with the applicable CMP goals and policies because the proposed permit exemption will have a negligible impact upon the coastal area, In addition, the proposed rule does not violate any applicable provisions of the CMP's state goals and policies. The commission invites public comment on the consistency of the proposed rule. Therefore, in compliance with 31 TAC sec.505.22(e), the commission affirms that this rule is consistent with CMP goals and policies, in that the permit exemption will have a negligible impact upon the coastal area. HEARINGS AND COMMENTS A public hearing was held on March 26, 1998 in Austin, Texas. There were no oral or written comments presented at the hearing. Written comments were received from National Solid Waste Management Association (NSWMA), Galveston County Health District (GCHD), and the Lone Star Chapter of the Sierra Club. GENERAL PUBLIC COMMENTS The NSWMA generally supported adoption of the rules as published with some suggested changes. Both GCHD and NSWMA suggested that language be added to sec.330.4(v) to clarify that deed recordation and notification are required by existing sec.330.7 and sec.330.8 for the disposal of litter or other solid waste. Clarification to sec.330.4(v) regarding the existing requirements for deed recordation is appropriate. The commission agrees with the commenters that all property used for the disposal of solid waste should be identified in the deed records so future property owners can identify areas of the property that have been used for disposal of solid waste. Deed recordation is currently required for municipal solid waste landfills in existing sec.330.7 titled relating to Deed Recordation. Deed recordation provides an important notice to future landowners about solid waste disposal on the property giving an advanced notice of potential future liability, and may provide notice regarding building over waste filled areas. Thus, the commission agrees to add a new sec.330.4(v)(9) as follows - "the individual complies with the deed recordation and notification requirements in sec.330.7 of this title (relating to Deed Recordation) and sec.330.8 of this title (relating to Notification Requirements)." NSWMA suggested that clarifying language be added to sec.330.4(w)(3) regarding odor control measures. The intent of the commission is to protect against nuisance odors in the disposal of animal carcasses. The normal management practice for odor control for land disposal of dead animals is to cover the carcasses with soil. The standard within the adoption language requiring cover within 24 hours is derived from an Environmental Protection Agency standard that requires solid waste to be covered with earthen material daily to control odors (see Federal Register, Volume 56, Number 196, October 9, 1991, sec.258.21, page 51020). The commission agrees to modify the language in sec.330.4(w)(3) by adding "within 24 hours of collection" to language in sec.330.4(w)(3) changing the language to the following - "the animal carcasses are covered with at least two feet of soil within 24 hours of collection in accordance with sec.330.136(b)(2) of this title (relating to Disposal of Special Wastes)." GCHD states in their written comments that the permit exemptions established in sec.330.4(v) and (w) will allow individuals to create their own unpermitted landfills and will cause degradation of water resources. GCHD believes that individuals should not be allowed to establish a solid waste disposal site without first providing adequate public health and environmental protective measures. The commission has made no change in response to this comment. This rulemaking is limited to the specific changes authorized by the 1997 legislative amendments to the Texas Health and Safety Code, Chapter 365, the Texas Litter Abatement Act, sec.365.011 and sec.365.012 and to the Texas Health and Safety Code, Chapter 361, the Solid Waste Disposal Act, sec.361.116. The commission is also concerned with providing adequate public health and environmental protective measures and believes that adequate remedies exist in nuisance abatement law, other state rules, and local government rules. The commission has never exerted permit requirements over individual disposal of waste, and the smallest recorded landfill permit ever issued was for a small city in west Texas with a population of 114. The legislature has determined that there should be minimal regulation of individuals disposing of their own non-commercial waste on their own property. The commission agrees, recognizing that there is minimal environmental risk posed by such disposal. Sierra Club has expressed concern in written comment about an individual's disposal of waste. Sierra Club has stated in their comments that there is no public benefit from the legislatively required action. Sierra Club believes that the cost of remediating water potentially affected by disposal of an individual's waste will have significant implications. Sierra Club suggests that sec.330.4(v)(3) be modified to exclude disposal on an individuals property if the property is less than 100 acres. Sierra Club suggests that the number of animal carcasses to be disposed of be limited by rule. The commission has made no change in response to these comments. As acknowledged by the commentor, this rulemaking is limited to the specific changes authorized in the 1997 legislative amendments to the Texas Health and Safety Code, Chapter 365, the Texas Litter Abatement Act, sec.365.011 and sec.365.012 and to the Texas Health and Safety Code, Chapter 361, the Solid Waste Disposal Act, sec.361.116. The commission is concerned with providing adequate public health and environmental protective measures and believes that adequate remedies exist in nuisance abatement law and other rules. Establishing limits as suggested by Sierra Club would be outside of the scope of the legislation. TNRCC and its predecessor agencies have never exerted permit requirements over individual disposal of waste. As noted above, the smallest recorded landfill permit ever issued was for a small city in west Texas with a population of 114. SUBCHAPTER A. General Information 30 TAC sec.330.4 STATUTORY AUTHORITY The section is adopted under the authority of the Texas Water Code, sec.5.103, which provides the commission with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, and under House Bill 717, as passed by the 75th Legislature amending the Texas Litter Abatement Act, sec.365.012, Texas Health and Safety Code, Chapter 365. They are also adopted under the authority of Senate Bill 1782, as passed by the 75th Legislature, which amended the Texas Health and Safety Code, Chapter 361, the Solid Waste Disposal Act, sec.361.116; and pursuant to the Texas Solid Waste Disposal Act, Texas Health and Safety Code sec.361.024, which provides the commission with the authority to regulate municipal solid waste and adopt rules as necessary to regulate the operation, management, and control of solid waste under its jurisdiction. sec.330.4. Permit Required. (a)-(u) (No change.) (v) A permit, registration, or other authorization is not required for the disposal of litter or other solid waste, generated by an individual, on that individual's own land where: (1) the litter or waste is generated on land the individual owns; (2) the litter or waste is not generated as a result of an activity related to a commercial purpose; (3) the disposal occurs on land the individual owns; (4) the disposal is not for a commercial purpose; (5) the waste disposed of is not hazardous waste or industrial waste; (6) the volume of waste disposed of by the individual does not exceed 2,000 pounds per year; (7) the waste disposal method complies with sec.sec.111.201 - 111.221 of this title (relating to Outdoor Burning); (8) the waste disposal method does not contribute to a nuisance and does not endanger the public health or the environment. Exceeding 2,000 pounds per individual's residence per year is considered to be a nuisance; and (9) the individual complies with the deed recordation and notification requirements in sec.330.7 of this title (relating to Deed Recordation) and sec.330.8 of this title (relating to Notification Requirements). (w) A permit or registration is not required for the disposal of animal carcasses from government roadway maintenance where: (1) either of the following: (A) the animals were killed on county or municipal roadways and the carcasses are buried on property owned by the entity that is responsible for road maintenance; or (B) the animals were killed on state highway right-of-way and the carcasses are disposed of by the Texas Department of Transportation by burying the carcasses on state highway right-of-way; and (2) the waste disposal method does not contribute to a nuisance and does not endanger the public health or the environment; and (3) the animal carcasses are covered with at least two feet of soil within 24 hours of collection in accordance with sec.330.136(b)(2) of this title (relating to Disposal of Special Wastes). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809151 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 28, 1998 Proposal publication date: March 6, 1998 For further information, please call: (512) 239-6087 SUBCHAPTER B. Municipal Solid Waste Storage 30 TAC sec.330.26 STATUTORY AUTHORITY The section is proposed under the authority of the Texas Water Code, sec.5.103, which provides the commission with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, and under House Bill 717, as passed by the 75th Legislature amending the Texas Litter Abatement Act, sec.365.012, Texas Health and Safety Code, Chapter 365. They are also adopted under the authority of Senate Bill 1782, as passed by the 75th Legislature, which amended the Texas Health and Safety Code, Chapter 361, the Solid Waste Disposal Act, sec.361.116; and pursuant to the Texas Solid Waste Disposal Act, Texas Health and Safety Code sec.361.024, which provides the commission with the authority to regulate municipal solid waste and adopt rules as necessary to regulate the operation, management, and control of solid waste under its jurisdiction. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809152 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 28, 1998 Proposal publication date: March 6, 1998 For further information, please call: (512) 239-6087 TITLE 31. NATURAL RESOURCES AND CONSERVATION PART II. Texas Parks and Wildlife Department CHAPTER 57.Fisheries SUBCHAPTER A.Harmful or Potentially Harmful Exotic Fish, Shellfish and Aquatic Plants 31 TAC sec.sec.57.111, 57.113, 57.114 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing on April 16, 1998 adopted amendments to sec.sec.57.111, 57.113 and 57.114 concerning harmful or potentially harmful exotic fish, shellfish and aquatic plants. Sections 57.111 and 57.114 are adopted with changes to the proposed text as published in the March 13, 1998 issue of the Texas Register (23 TexReg 2727). Section 57.113 is adopted without changes and will not be republished. The purpose of sec.sec.57.111 and 57.114 is to protect wild native aquatic species from depletion due to detrimental effects of introduction of diseases from cultured stocks. To further this purpose, sec.57.111 is amended to add definitions for the terms "clinical analysis checklist" and "immediately" and to clarify the definitions for "disease-free", "waste" and "water in the state". The amendments to sec.57.114 further the department's goal by allowing permit holders who must institute quarantine conditions as a result of observing manifestations of disease to choose between requesting an inspection from a department approved examiner or submitting samples of shellfish to a laboratory for disease analysis. The amended section also allows permit holders who wish to discharge waste into or adjacent to water in the state to make the same choice between inspection by a department approved examiner and laboratory testing prior to commencing any discharge. TPWD has not prepared a Takings Impact Assessment for these rules because Government Code, sec.2007.003 provides an exception to the requirement for rules or proclamations adopted for the purpose of regulating or controlling nonindigenous or exotic aquatic species. A public hearing was held on the rule in Austin, Texas on April 16, 1998. No oral comments were received at that time. The written comment period closed on April 13, 1998. Seven commenters provided both specific and general comments. The following two commenters expressed support for the rules: The Texas Shrimp Association and the Environmental Defense Fund. The following five commenters suggested changes: The Texas A&M University Sea Grant program, the Cameron County Marine Agent, Harlingen Shrimp Farms, Ltd., Dr. Ken Johnson of the Texas Veterinary Medical Diagnostic Laboratory, and Mr. Walt Kittelberger of the Lower Laguna Madre Foundation. Dr. Johnson commented that the term "certified inspector" did not seem accurate or appropriate. Texas A&M Sea Grant representatives expressed concern over the Sea Grant program being specifically written into the definition of "certified inspector" as the Sea Grant Program does not play a regulatory role in aquaculture and wishes to maintain a neutral position with respect to aquaculture disease issues. The Commission agrees with these comments and has deleted the definition. The rules now refer to department approved examiners who will perform inspections upon request. Regarding the definition of "disease-free", Dr. Johnson commented that aquatic organisms are not certified to be totally free of disease but are only determined to be free of some disease agents. The Commission recognizes that Dr. Johnson's comment is technically correct. However, as stated in the commission's responses to comments when the rules were originally adopted in the December 19, 1997 issue of the Texas Register, the commission does not want to limit its quarantine authority to specific known pathogens since the possibility exists for the occurrence of previously unidentified but extremely deleterious or lethal pathogens. Mr. Walt Kittelberger of the Lower Laguna Madre Foundation commented that a definition should be added for the term "immediately". The Commission agrees that the possibility exists for confusion about the meaning of the term "immediately" in the regulatory context. Consequently, "immediately" has been defined to mean "without delay; with no intervening span of time". Mr. Fritz Jaenike of Harlingen Shrimp Farms, Ltd. commented that the definition of "manifestations of disease" was fairly specific and could be limiting since additions, deletions or modifications to the list would require amendments to the rules. He suggested that providing a checklist of such manifestations to permit holders and inspectors would allow greater flexibility. Mr. Jaenike also commented that the "manifestations of disease" listed in the definition should be quantified somehow and that gill fouling and gill discoloration should be removed from the definition. The Commission agrees with this comment. The definition of "manifestations of disease" has been replaced with the term "clinical analysis checklist". The checklist will specify sampling protocols and list the characteristics which, in the judgment of the department, constitute manifestations of disease. In subsection 57.114(d) the commission determined that, for purposes of clarification, it was necessary to insert the word "immediately" before the requirement to notify the department of the presence of disease manifestations, before the requirement to request an inspection, and before the requirement to submit samples for laboratory testing. Subsection 57.114(e) of the proposed rules required the "certified inspector" to "notify" the department and the permit holder of the results of the inspection. The commission determined that it was necessary to clarify that the intent of the notification requirement was that the "department approved examiner" would submit the results in writing to the department and the permit holder on the "clinical analysis checklist". Representatives of the Texas A&M Sea Grant Program and the Cameron County Marine Agent expressed concern that the proposed rule had the potential to result in a heavy demand for Sea Grant staff to conduct numerous inspections in a short time frame. The Commission agrees with this comment. The rule has been modified so that instead of requiring inspection or testing prior to each discharge of waste, the entire aquaculture facility must undergo inspection at least once prior to the initial waste discharge of the season. In addition, the department will insert a condition in each new and existing exotic species permit that will require the permit holder to complete a clinical analysis checklist each week and file it with the department. If the checklist indicates the presence of one or more manifestations of disease, the rules require the permit holder to immediately quarantine the entire facility. In that event, department staff will conduct an on-site inspection. As additional safeguards, department staff will conduct random unannounced inspections of the aquaculture facilities governed by these rules as well as conducting inspections in response to complaints from the public. As a result of this modification, the commission further determined that, for the sake of clarification, the remainder of proposed subsection 57.114(f), dealing with the consequences of finding manifestations of disease or receiving laboratory results positive for disease, should be set forth separately in new subsections 57.114(g) and (h). Mr. Fritz Jaenike commented that the term "disposal method" was restrictive and suggested substituting a term with more flexibility such as "action" or "management method". Mr. Walt Kittelberger commented that the rule should make it clear that the department will make the determination of an appropriate disposal method. The commission agrees with these comments. This part of the rule now appears in new sec.57.114(j) and has been modified to change "appropriate disposal method" to "other actions deemed appropriate by the department". These amendments are adopted under Parks and Wildlife Code sec.66.007 which prohibits possession of exotic harmful or potentially harmful fish, shellfish or aquatic plants except as authorized by rule or permit, requires permittees to provide proof to the department of the disease free status of the animals and authorizes the department to make rules to carry out these provisions. sec.57.111.Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Aquaculture or fish farming--The business of producing and selling cultured species raised in private facilities. (2) Certified Inspector - An employee of the Texas Parks and Wildlife Department or the Texas A&M Sea Grant College Program who has satisfactorily completed a department approved course in clinical analysis of shellfish. (3) Cultured species--Aquatic plants or wildlife resources raised under conditions where at least a portion of their life cycle is controlled by an aquaculturist. (4) Clinical Analysis Checklist - An inspection form provided by the department specifying sampling protocols and listing certain characteristics which may constitute manifestations of disease. (5) Department--The Texas Parks and Wildlife Department or a designated employee of the department. (6) Director--The executive director of the Texas Parks and Wildlife Department. (7) Disease--Contagious pathogens or injurious parasites which may be a threat to the health of natural populations of aquatic organisms. (8) Disease-Free--A status, based on the results of an examination conducted by a department approved shellfish disease specialist that certifies a group of aquatic organisms as being free of disease (9) Exotic species--A nonindigenous plant or wildlife resource not normally found in public water of this state. (10) Fish farm--The property including all drainage ditches and private facilities from which cultured species are produced, held, propagated, transported, or sold. (11) Fish farm complex--A group of two or more separately owned fish farms located at a common site and sharing privately owned water diversion or drainage structures. (12) Fish farmer--Any person engaged in aquaculture or fish farming. (13) Grass carp--The species Ctenopharyngodon idella. (14) Harmful or potentially harmful exotic fish-- (A) Lampreys Family: Petromyzontidae--all species except Ichthyomyzon castaneus and I. gagei; (B) Freshwater Stingrays Family: Potamotrygonidae--all species; (C) Arapaima Family: Osteoglossidae--Arapaima gigas; (D) South American Pike Characoids Family: Characidae--all species of genus Acestrorhyncus; (E) African Tiger Fishes Subfamily: Hydrocyninae--all species; (F) Piranhas and Priambebus Subfamily: Serrasalminae--all species; (G) Rhaphiodontid Characoids Subfamily: Rhaphiodontinae--all species of genera Hydrolycus and Rhaphiodon (synonymous with Cynodon); (H) Dourados Subfamily: Bryconinae--all species of genus Salminus; (I) South American Tiger Fishes Family: Erythrinidae--all species; (J) South American Pike Characoids Family: Ctenolucidae--all species of genera Ctenolucius and Luciocharax (synonymous with Boulengerella and Hydrocinus); (K) African Pike Characoids Families: Hepsetidae Ichthyboridae--all species; (L) Electric Eels Family: Electrophoridae--Electrophorus electricus; (M) Carps and Minnows Family: Cyprinidae--all species and hybrids of species of genera: Abramis, Aristichthys, Aspius, Aspiolucius, Blicca, Catla, Cirrhina, Ctenopharyngodon, Elopichthys, Hypophthalmichthys, Leuciscus, Megalobrama, Mylopharyngodon, Parabramis, Pseudaspius, Rutilus, Scardinius, Thynnichthys, Tor, and the species Barbus tor (synonymous with Barbus hexoagoniolepis); (N) Walking Catfishes Family: Clariidae--all species; (O) Electric Catfishes Family: Malapteruridae--all species; (P) South American Parasitic Candiru Catfishes Subfamilies: Stegophilinae Vandelliinae--all species; (Q) Pike Killifish Family: Poeciliidae--Belonesox belizanus; (R) Marine Stonefishes Family: Synanceiidae--all species; (S) Tilapia Family: Cichlidae--all species of genus Tilapia (including Sarotherodon and Oreochromis); (T) Asian Pikeheads Family: Luciocephalidae--all species; (U) Snakeheads Family: Channidae--all species; (V) Walleyes Family: Percidae--all species of the genus Stizostedion except Stizostedion vitreum and S. canadense; (W) Nile Perch Family: Centropomidae--all species of genera Lates and Luciolates; (X) Drums Family: Sciaenidae--all species of genus Cynoscion except Cynoscion nebulosus, C. nothus, and C. arenarius; (Y) Whale Catfishes Family: Cetopsidae--all species; (Z) Ruff Family: Percidae--all species of genus Gymnocephalus; (AA) Air sac Catfishes Family. (BB) Swamp Eels, Rice Eels or One-Gilled Eel Family: Synbranchidae--all species; (CC) Anguilliidae--all species except Anguilla rostrata. (DD) Heteropneustidae--All species of genus Heteropneustes. (15) Harmful or potentially harmful exotic shellfish-- (A) Crayfishes Family: Parastacidae--all species of the genus Astacopsis; (B) Mittencrabs Family: Grapsidae--all species of genus Eriocheir; (C) Giant Ram's-horn Snails Family: Piliidae (synonymous with Ampullariidae)-- all species of genus Marisa; (D) Zebra Mussels Family: Dreissenidae--all species of genus Dreissena; (E) Penaeid Shrimp Family: Penaeidae--all species of genus Penaeus except P. setiferus, P. aztecus, and P. duorarum; (F) Pacific Oyster Family: Ostreidae---Crassostrea gigas. (16) Harmful or potentially harmful exotic plants-- (A) Giant Duckweed Family: Lemnaceae--Spirodela oligorhiza; (B) Salvinia Family: Salviniaceae--all species of genus Salvinia; (C) Waterhyacinth Family: Pontederiaceae--Eichhornia crassipes; (D) Waterlettuce Family: Araceae--Pistia stratiotes; (E) Hydrilla Family: Hydrocharitaceae--Hydrilla verticillata; (F) Lagarosiphon Family: Hydrocharitaceae--Lagarosiphon major; (G) Eurasian Watermilfoil Family: Haloragaceae--Myriophyllum spicatum; (H) Alligatorweed Family: Amaranthaceae--Alternanthera philoxeroides; (I) Rooted Waterhyacinth Family: Pontederiaceae--Eichhornia azurea; (J) Paperbark Family: Myrtaceae--Melaleuca quinquenervia; (K) Torpedograss Family: Gramineae--Panicum repens; (L) Water spinach Family: Convolvulaceae--Ipomoea aquatic. (17) Harmful or potentially harmful exotic species exclusion zone--That area south of SH 21, from its intersection with the Texas/Louisiana border, approximately five miles due east of Milam, Texas, not including that area of Brazos County south of SH 21, to San Marcos; thence south of IH 35 to Laredo. (18) Immediately - Without delay; with no intervening span of time. (19) Manifestations of disease - manifestations of disease include, but are not limited to, one or more of the following : heavy or unusual predator activity, empty guts, emaciation, rostral deformity, digestive gland atrophy or necrosis, gross pathology of shell or underlying skin typical of viral infection, fragile or atypically soft shell, gill fouling, or gill discoloration. (20) Nauplius or nauplii--A larval crustacean having no trunk segmentation and only three pairs of appendages. (21) Operator--The person responsible for the overall operation of a wastewater treatment facility. (22) Place of business--A permanent structure on land where aquatic products or orders for aquatic products are received or where aquatic products are sold or purchased. (23) Postlarva--A juvenile crustacean having acquired a full complement of functional appendages. (24) Private facility--A pond, tank, cage, or other structure capable of holding cultured species in confinement wholly within or on private land or water, or within or on permitted public land or water. (25) Private facility effluent--Any and all water which has been used in aquaculture activities. (26) Private pond--A pond, tank, lake, or other structure capable of holding cultured species in confinement wholly within or on private land. (27) Public aquarium--An American Association of Zoological Parks and Aquariums accredited facility for the care and exhibition of aquatic plants and animals. (28) Public waters--Bays, estuaries, and water of the Gulf of Mexico within the jurisdiction of the state, and the rivers, streams, creeks, bayous, reservoirs, lakes, and portions of those waters where public access is available without discrimination. (29) Quarantine condition--Confinement of exotic shellfish such that neither the shellfish nor the water in which they are or were maintained comes into contact with other fish or shellfish. (30) Triploid grass carp--A grass carp (Ctenopharyngodon idella) which has been certified by the United States Fish and Wildlife Service as having 72 chromosomes and as being functionally sterile. (31) Waste - waste shall have the same meaning as in Chapter 26, sec.26.001(6) of the Texas Water Code. (32) Water in the state - water in the state shall have the same meaning as in Chapter 26, sec.26.001(5) of the Texas Water Code. (33) Wastewater treatment facility--All contiguous land and fixtures, structures or appurtenances used for treating wastewater pursuant to a valid permit issued by the Texas Natural Resource Conservation Commission. sec.57.114.Health Certification of Exotic Shellfish. (a)-(c) (No change.) (d) Any person in possession of exotic shellfish stocks who observes one or more of the manifestations of disease appearing on the clinical analysis checklist provided by the department shall: (1) immediately quarantine the entire facility, immediately notify the department and immediately request an inspection from a department approved examiner; or (2) immediately quarantine the entire facility, immediately notify the department and immediately submit samples of the affected shellfish to a department approved shellfish disease specialist for analysis. Results of such analyses shall be forwarded to the department immediately upon receipt. (e) Upon receiving a request from a permit holder under subsection (d)(1) of this section, the department approved examiner shall inspect the private facility, complete the clinical analysis checklist provided by the department, and submit copies of the checklist to the department and the permit holder. (f) Before discharging any waste for the first time in any calendar year into or adjacent to water in the state, the permittee shall: (1) have a department approved examiner inspect the entire facility and examine samples of the shellfish from each pond or other structure containing exotic shellfish no more than 72 hours prior to the first discharge and shall submit the results of the examination to the department on the department approved clinical analysis checklist; or (2) submit samples of the shellfish from each pond or other structure containing exotic shellfish to a department approved shellfish disease specialist for analysis no more than ten days prior to the first discharge and submit the results of such analyses to the department immediately upon receipt. (g) If the results of an inspection performed under subsection (f)(1) of this section indicate the presence of one or more manifestations of disease, the permittee shall immediately place the entire facility under quarantine and immediately submit samples of the shellfish from the affected portion(s) of the facility to a department approved shellfish disease specialist for analysis. Results of such analyses shall be forwarded to the department immediately upon receipt. (h) If the results of analyses performed under subsection (f)(2) of this section indicate the presence of disease, the permittee shall immediately place the entire facility under quarantine. (i) A private facility quarantined under subsections (d), (g) or (h) of this section shall remain under quarantine condition until the department removes the quarantine in writing or authorizes in writing other actions deemed appropriate by the department based on the required analyses. (j) If the results of inspections or testing performed under subsection (f) of this section indicate the absence of any manifestations of disease, the permittee may begin discharging from the facility. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 1, 1998. TRD-9808817 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: June 21, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 389-4652 CHAPTER 69.Resource Protection SUBCHAPTER F.Health Certification of Native Shellfish 31 TAC sec.69.75, sec.69.77 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing on April 16, 1998 adopted new sec.sec.69.75 and 69.77 concerning health certification of native panaeid shrimp. Sections 69.75 and 69.77 are adopted with changes to the proposed text as published in the March 13, 1998 of the Texas Register (23 TexReg 2744). The purpose of new sec.sec.69.75 and 69.77 is to protect wild native aquatic species from depletion due to detrimental effects of disease introduced from cultured stocks. To further this purpose, new sec.69.75 adds definitions for the terms "clinical analysis checklist", "disease", "disease-free", "immediately", "private facility", "quarantine condition", "waste" and "water in the state". New sec.69.77 furthers the department's goal by requiring persons in possession of native panaeid shrimp for aquaculture or scientific research purposes to quarantine their facility if they observe one or more manifestations of disease listed in a department approved clinical analysis checklist. It also allows such persons to choose between requesting an inspection from a department approved examiner or submitting samples of shrimp to a laboratory for disease analysis. A Takings Impact Assessment was performed for these rules pursuant to the requirements of Government Code, sec.2007.043. The stated purpose of these rules is to protect wild native populations of shellfish from depletion due to detrimental effects of disease introduced by cultured stocks. Promulgation and enforcement of these rules will not place a burden on private real property because the rules do not restrict or limit a right that would otherwise exist in the absence of the rules. A public hearing was held on the rule in Austin, Texas on April 16, 1998. No oral comments were received at that time. The written comment period closed on April 13, 1998. Four commenters provided both specific and general comments. The following two commenters expressed support for the rules: The Texas Shrimp Association and the Environmental Defense Fund. The following two commenters suggested changes: Dr. Ken Johnson of the Texas Veterinary Medical Diagnostic Laboratory, and Mr. Walt Kittelberger of the Lower Laguna Madre Foundation. Dr. Johnson commented that the term "certified inspector" did not seem accurate or appropriate. The Commission agrees with this comment and has deleted the definition. The rules now refer to department approved examiners who will perform inspections upon request. Regarding the definition of "disease-free," Dr. Johnson commented that aquatic organisms are not certified to be totally free of disease but are only determined to be free of some disease agents. The Commission recognizes that Dr. Johnson's comment is technically correct. However, the commission does not want to limit its quarantine authority to specific known pathogens since the possibility exists for the occurrence of previously unidentified but extremely deleterious or lethal pathogens. Mr. Walt Kittelberger of the Lower Laguna Madre Foundation commented that a definition should be added for the term "immediately". The Commission agrees that the possibility exists for confusion about the meaning of the term "immediately" in the regulatory context. Consequently, "immediately" has been defined to mean "without delay; with no intervening span of time". Mr. Walt Kittelberger commented that the definition of "private facility" should be limited to facilities with a certain percentage of private funding. The commission responds that the same definition of the term "private facility" appears in sec.57.111 of the Harmful and Potentially Harmful Exotic Species rules. This definition is intended to encompass all aquaculture facilities fitting the description in the definition regardless of the origin of the funding for the facility. In subsection 69.77(a) the commission determined that, for purposes of clarification, it was necessary to insert the word "immediately" before the requirement to notify the department of the presence of disease manifestations, before the requirement to request an inspection, and before the requirement to submit samples for laboratory testing. Subsection 69.77(b) of the proposed rules required the "certified inspector" to "notify" the department and the permit holder of the results of the inspection. The commission determined that it was necessary to clarify that the intent of the notification requirement in the rule was that the "department approved examiner" would submit the results in writing to the department and the permit holder on the "clinical analysis checklist". These new sections are adopted under Chapters 61 and 77 of the Texas Parks and Wildlife Code. Section sec.61.052(b) of the Texas Parks and Wildlife Code provides the Commission with the authority to regulate the means, methods and places in which it is lawful to possess aquatic animal life, sec.61.055 authorizes the Commission to amend its proclamations to prevent depletion of aquatic animal life or at any time it finds the facts warrant a change, and sec.77.007 authorizes the Commission to regulate the possession of shrimp. sec.69.75.Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Certified Inspector - An employee of the Texas Parks and Wildlife Department or the Texas A&M Sea Grant College Program who has satisfactorily completed a department approved course in clinical analysis of shellfish. (2) Clinical Analysis Checklist - An inspection form provided by the department specifying sampling protocols and listing certain characteristics which may constitute manifestations of disease. (3) Disease - contagious pathogens or injurious parasites which may be a threat to the health of natural populations of aquatic organisms. (4) Disease-Free - a status based on the results of an examination conducted by a department approved shellfish disease specialist that certifies a group of aquatic organisms as being free of disease. (5) Immediately - Without delay; with no intervening span of time. (6) Manifestations of disease - manifestations of disease include, but are not limited to, one or more of the following : heavy or unusual predator activity, empty guts, emaciation, rostral deformity, digestive gland atrophy or necrosis, gross pathology of shell or underlying skin typical of viral infection, fragile or atypically soft shell, gill fouling, or gill discoloration. (7) Private facility - a pond, tank, cage or other structure capable of holding native shellfish in confinement wholly within or on private land or water or wholly within or on permitted public land or water. (8) Quarantine condition - confinement of native penaeid shrimp such that neither the shrimp nor the water in which they are or were maintained comes into contact with other fish or shellfish. (9) Waste - waste shall have the same meaning as in Chapter 26, sec.26.001(6) of the Texas Water Code. (10) Water in the state - water in the state shall have the same meaning as in Chapter 26, sec.26.001(5) of the Texas Water Code. sec.69.77.Health Certification of Native Penaeid Shrimp. (a) Any person in possession of native panaeid shrimp stocks held on a private facility for the purpose of aquaculture or scientific research who observes one or more manifestations of disease appearing on the clinical analysis checklist provided by the department shall: (1) immediately quarantine the entire facility, immediately notify the department and immediately request an inspection from a department approved examiner; or (2) immediately quarantine the entire facility, immediately notify the department and immediately submit samples of the affected shrimp to a department approved shellfish disease specialist for analysis. Results of such analyses shall be forwarded to the department immediately upon receipt. (b) Upon receiving a request from a permit holder under subsection (a) of this section, the department approved examiner shall inspect the private facility, complete the clinical analysis checklist provided by the department and submit the checklist to the department and the permit holder. (c) A private facility quarantined under subsection (a) of this section shall remain under quarantine condition until the department removes the quarantine in writing or authorizes in writing other actions deemed appropriate by the department based on the results of the required analyses. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 1, 1998. TRD-9808816 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: June 21, 1998 Proposal publication date: March 13, 1998 For further information, please call: (512) 389-4642 TITLE 34. PUBLIC FINANCE PART I. Comptroller of Public Accounts CHAPTER 5. Funds Management (Fiscal Affairs) SUBCHAPTER C. Claims Processing - Travel Vouchers 34 TAC sec.5.22 The Comptroller of Public Accounts adopts amendments to sec.5.22, concerning incorporation by reference: "State of Texas Travel Allowance Guide," without changes to the proposed text as published in the April 10, 1998, issue of the Texas Register (23 TexReg 3649). The amendments are necessary to reflect the issuance of a new "State of Texas Travel Allowance Guide" by the comptroller. The new guide reflects changes made by the 75th legislature, regular session, 1997 to the Travel Regulations Act and to the travel provisions of the General Appropriations Act. The new guide also includes revised policies that are intended to promote efficiency and eliminate ambiguities concerning the travel of state officers and employees. Chapter 10 of the new guide lists the major differences between it and the previous guide. A copy of the new guide is available upon request from Claims Division, P.O. Box 13528, Austin, Texas 78711. No comments were received regarding adoption of the amendments. The amendment is adopted under the Government Code, sec.660.021, which requires the comptroller to adopt rules to administer the Travel Regulations Act and the travel provisions of the General Appropriations Act. The amendment implements the Government Code, sec.sec.660.001-660.146 and the General Appropriations Act, Article IX, sec.sec.4 and 13-19. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 4, 1998. TRD-9809043 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: June 24, 1998 Proposal publication date: April 10, 1998 For further information, please call: (512) 463-4062 SUBCHAPTER D. Claims Processing - Payroll 34 TAC sec.5.46 The Comptroller of Public Accounts adopts an amendment to sec.5.46, concerning deductions for certain membership fees, without changes to the proposed text as published in the April 10, 1998, issue of the Texas Register (23 TexReg 3650). The purposes of the amendments are as follows. First, the legislature in 1993 deleted the statutory requirement for the comptroller to establish an annual period for employee authorizations of deductions to pay membership fees to state employee organizations. Now, employees may authorize a deduction anytime during the year. The section is being amended to reflect this change. Second, the section contains provisions that apply only to past years. Those provisions are being deleted because they have been executed and are no longer necessary. Third, the legislature in 1997 gave the comptroller the discretion to charge administrative fees to cover costs incurred from administering the deduction. Previous law required the comptroller to charge the fees. The comptroller has decided not to charge the fees at this time. Therefore, the section is being amended to delete all references to the fees. Fourth, the section contains a few minor errors and obsolete statutory references that are being corrected. No comments were received regarding adoption of the amendments. The amendment is adopted under the Government Code, sec.403.0165(h), which authorizes the comptroller to adopt rules for administration of the payroll deduction to pay membership fees to state employee organizations. The amendment implements the Government Code, sec.403.0165. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 4, 1998. TRD-9809042 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: June 24, 1998 Proposal publication date: April 10, 1998 For further information, please call: (512) 463-4062 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART I. Texas Department of Human Services CHAPTER 2.Medically Needy Program SUBCHAPTER A.Program Requirements 40 TAC sec.2.1004, sec.2.1006 The Texas Department of Human Services (DHS) adopts amendments to sec.2.1004 and sec.2.1006, without changes to the proposed text as published in the May 1, 1998, issue of the Texas Register (23 TexReg 4238) and will not be republished. The justification for the amendments is to comply with the Balanced Budget Act of 1997 by allowing medical coverage of children through age 18 whose family income is below 100% of the federal poverty income limits, change references to Aid to Families with Dependent Children (AFDC) to Temporary Assistance for Needy Families (TANF), and delete the domicile requirement. The amendments will function by ensuring that the state will be in compliance with the Health and Human Services (HHSC) mandate. No comments were received regarding adoption of the amendments. The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 31, which provides the department with the authority to administer public and financial assistance programs. The amendments implement the Human Resources Code, sec.sec.22.001-22.030 and sec.sec.31.001-31.0325. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 2, 1998. TRD-9808878 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: July 1, 1998 Proposal publication date: May 1, 1998 For further information, please call: (512) 438-3765 CHAPTER 4.Medicaid Programs -- Children and Pregnant Women SUBCHAPTER A.Eligibility Requirements 40 TAC sec.4.1004, sec.4.1010 The Texas Department of Human Services (DHS) adopts an amendment to sec.4.1004 with changes to the proposed text as published in the May 1, 1998, issue of the Texas Register (23 TexReg 4239). The amendment to sec.4.1010 is adopted without changes to the proposed text, and will not be republished. The justification for the amendments is to comply with the Balanced Budget Act of 1997 by allowing medical coverage of children through age 18 whose family income is below 100% of the federal poverty income limits, and change references to Aid to Families with Dependent Children (AFDC) to Temporary Assistance for Needy Families (TANF). The amendments will function by ensuring that the state will be in compliance with the Health and Human Services (HHSC) mandate. The department received no comments regarding adoption of the amendments, but has initiated a minor editorial change to the text of sec.4.1004(5) by adding the word "and" after the semicolon. The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 31, which provides the department with the authority to administer public and financial assistance programs. The amendments implement the Human Resources Code, sec.sec.22.001-22.030 and sec.sec.31.001-31.0325. sec.4.1004.Eligible Groups. The programs serve the following groups of people: (1) - (2) (No change.) (3) children ages six through 18, whose family income is less than 100% of the federal poverty limit and whose total resources are less than the food stamp limit for households with no members age 60 or over; (4) (No change.) (5) children born prior to October 1, 1983, who meet all Temporary Assistance for Needy Families (TANF) eligibility requirements, but choose to bypass TANF and receive Medicaid- only benefits; and (6) children who meet all TANF eligibility requirements except income. These deprived children live with their legal parent and stepparent of their legal minor parent and their minor parent's parents. They are ineligible for TANF because of the applied income of their stepparent or grandparents. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 2, 1998. TRD-9808879 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: July 1, 1998 Proposal publication date: May 1, 1998 For further information, please call: (512) 438-3765 CHAPTER 5.Medicaid Programs for Aliens SUBCHAPTER B.Medicaid Benefits for Aliens Not Legally Residing in the United States 40 TAC sec.5.2004 The Texas Department of Human Services (DHS) adopts an amendment to sec.5.2004, without changes to the proposed text as published in the May 1, 1998, issue of the Texas Register (23 TexReg 4240). The text will not be republished. The justification for the amendment is to comply with the Balanced Budget Act of 1997 by allowing medical coverage of children through age 18 whose family income is below 100% of the federal poverty income limits, and to delete the relationship/domicile requirements. The amendment will function by ensuring that the state will be in compliance with the Health and Human Services (HHSC) mandate. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 31, which provides the department with the authority to administer public and financial assistance programs. The amendment implements the Human Resources Code, sec.sec.22.001-22.030 and sec.sec.31.001-31.0325. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 2, 1998. TRD-9808880 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: July 1, 1998 Proposal publication date: May 1, 1998 For further information, please call: (512) 438-3765 CHAPTER 15.Medicaid Eligibility SUBCHAPTER B.Medicare and Third-Party Resources 40 TAC sec.15.220 The Texas Department of Human Services (DHS) adopts new sec.15.220, concerning qualifying individuals (QIs), in its Medicaid eligibility chapter. The justification for the section is to comply with Public Law 105-33. This new section mandates two new Medicare cost-sharing groups, effective January 1, 1998. The section will function by ensuring that DHS is in compliance with federal law. The section is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs and under Texas Government Code sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The section is adopted in compliance with federal requirements effective January 1, 1998. The section implements sec.sec.22.001-22.030 and 32.001-32.042 of the Human Resources Code. sec.15.220.Qualifying Individuals (QIs). (a) Public Law 105-33, the Balanced Budget Act of 1997, mandates two new Medicare cost-sharing groups, effective January 1, 1998. The new coverage groups, called Qualifying Individuals (QIs), must meet the eligibility criteria in sec.15.201 of this title (relating to Qualified Medicare Beneficiaries), except the income limits are higher. Eligibility is determined for each calendar year. QI clients cannot be eligible for regular Medicaid and QI benefits at the same time. (1) QI-1 clients have incomes from at least 120% but less than 135% of the federal poverty level. The only benefit is payment of the Medicare Part B premium. (2) QI-2 clients have incomes from at least 135% but less than 175% of the federal poverty level. The only benefit is payment of that portion of the Medicare Part B premium that results from the shift of home health benefits from Part A to Part B. (b) If all eligibility criteria are met, QI clients can be certified for the month of application. QI clients are also eligible for three months prior coverage if they meet all required criteria for the period. The three-months prior period cannot extend back into the previous calendar year. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 5, 1998. TRD-9809095 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: January 1, 1998 Proposal publication date: N/A For further information, please call: (512) 438-3765 CHAPTER 18.Nursing Facility Administrators The Texas Department of Human Services (DHS) adopts the repeal of sec.sec.18.17- 18.20 and new sec.sec.18.17-18.20 in its Nursing Facility Administrators chapter. The repeal of sec.sec.18.17-18.20 is adopted without changes to the proposed text. New sec.sec.18.17-18.20 are adopted with changes to the proposed text published in the February 27, 1998, issue of the Texas Register (23 TexReg 1923). Justification for the repeals and new sections is the better protection of the health and safety of nursing facility residents by allowing consideration of factors such as the seriousness of the violation and the administrator's history of previous violations when determining the amount of the penalty to assess an administrator for a violation of the Texas Health and Safety Code, Chapter 242, Subchapter I, (Nursing Facility Administration, sec.sec.242.301, added by Acts 1997, 75th Legislature, Chapter 1280, sec.1.01), or rules adopted under that chapter. The new sections will function by altering the procedures for the assessment of an administrative penalty by allowing consideration of several factors when determining the amount of the penalty to assess an administrator, including but not limited to: the seriousness of the violation, including the nature, circumstances, extent, and gravity of any prohibited acts, and the hazard or potential hazard to the health, safety, or economic welfare of the public; the economic harm to property or the environment caused by the violation; the administrator's history of previous violations; and the efforts to correct the violations. The formal hearing, informal hearing, and standards of conduct procedures are also revised to reflect DHS policy and procedures. The department received written comments from the Texas Association of Licensed Facility Administrators, the Texas Association of Residential Care Communities, and the Texas Health Care Association. A summary of the comments and the department's responses follow. Comment: Regarding sec.18.17(a)(6), define what it means to place an administrator's license on probation. Response: The department is changing the proposed language at sec.18.17(a)(6) to state "placement of a licensee on probation" which is required by the statute at Section 242.313(a). When a licensee is placed on probation, the department allows the licensee to retain the license and defers the imposition of other sanctions until the specific conditions of the probation are met. Comment: sec.18.18, Informal Review, attempts to provide an informal forum for resolving cases before DHS proceeds to a formal hearing to suspend or revoke an administrators license. The proposed rule limits this process to a review of documents provided by staff, on the one hand, and the administrator, on the other. There is no opportunity for a face-to-face meeting between the administrator and those who will recommend his sanction. This scheme does not promote the informal settlement of disputes because it fails to offer the administrator a meaningful opportunity to participate in a settlement process. No matter how fair in theory a system based on document review is, it will never be as effective as a dispute resolution process that incorporates a face-to-face meeting. Even if we assume for the purpose of argument that the proposed process is fair, it will never be perceived as being fair by administrators because of this lack of opportunity to meet with the decision makers and explain their side of the story. If the administrator does not feel the process is fair, he will not be inclined to agree with the committee's recommendations, regardless of how reasonable the recommendations are in fact. Change this section to include a face-to-face hearing. Response: The department does not concur with the comments and recommends adoption of the rules as proposed. The informal review is not an informal forum for resolving cases or an informal dispute settlement process. The informal review is an administrator's opportunity to show compliance with law. Any evidence or documentation that was not available to surveyors/investigators at the time the standard or abbreviated standard survey was conducted may be presented by the administrator at this time. Senate Bill 84, at Section 242.317(b) under informal proceedings, stipulates that the complainant and license holder be provided an opportunity to be heard. The department's current procedure is to provide the administrator and complainant with an opportunity to provide a written response regarding a complaint allegation; however, if requested, the department will provide a face-to-face meeting. Comment: Regarding sec.18.18, Informal Review, there should be an avenue for an administrator to appeal before the advisory committee. The way things are structured now, many administrators feel like the committee's process is anything but fair. In fact, it's almost as though the committee considers the administrator's case in secret: no notice is provided to the administrator that his case is going to be considered by the advisory committee beforehand, and so the administrator is not represented in the debate that will decide his fate. The committee reviews the case without the administrator's knowledge or presence and issues its sentence. The first inkling the administrator has of this process is when he receives a letter saying that the committee has considered his case and has recommended sanctions; he can take this punishment or be haled into court. Add an option for administrators to appeal before the advisory committee members. Response: The department does not concur and recommends adoption of the language as proposed. Senate Bill 84, at Section 242.303(d), stipulates that the committee review all complaints against administrators and make recommendations to the department regarding disciplinary actions. The advisory committee meeting is not conducted in secret, nor is it intended to provide the administrator with an opportunity to debate issues relating to a case. As mandated by Senate Bill 84, the administrator is afforded an informal review to show compliance with the law, which is conducted in accordance with the Texas Government Code, Section 2001.054. The administrator is also afforded an opportunity to be heard during the formal hearing process. Comment: Regarding sec.18.18, Informal Review, it has been advanced that the administrator is given an opportunity to provide a statement in response to survey findings. But that is in connection with the survey process at Long Term Care-Regulatory, which department is separate from the Credentialing Department. When the process at Long Term Care-Regulatory is resolved, the administrator is under the impression that all is well until he is notified by the Credentialing that action is being taken against his license. Response: The department does not concur and recommends adoption of the language as proposed. The Report of Contact that accompanies the Statement of Deficiencies that is submitted by Long Term Care-Regulatory indicates that a referral of the nursing facility administrator is being made to the licensing authority when substandard quality of care has been identified during a standard or abbreviated standard survey. The referral of the administrator for a substandard quality of care finding is required by 42 Code of Federal Regulations (CFR). The department's current procedure is to provide the standard or abbreviated standard survey findings and the administrator's statement regarding the complaint or referral for substandard quality of care to the Nursing Facility Administrator Advisory Committee for consideration. Comment: Regarding sec.18.18, Informal Reviews, the proposed language should be amended to state: "sec.18.18 Prehearing Conference (a) At any time after the filing of a complaint, the Credentialing Department Director, unilaterally or at the request of the staff or respondent/applicant, may request that the parties, their attorneys or representatives appear before the Credentialing Department Director or his designee at a specified time and place for a conference to be conducted prior to the contested case hearing for the purpose of: (1) simplifying the issues; (2) considering proposed admissions or stipulations of fact; (3) reviewing the procedure to govern the contested case hearing; (4) exchanging witness lists and agreeing to limit the number of witnesses, and/or; (5) doing any act that may simplify the proceedings and dispose of matters in controversy, including settlement of issues in dispute and preparation of an Agreed Order for presentation to the Advisory Committee and/or the Credentialing Department Director. (b) A member of the Advisory Committee may be present to participate in the prehearing conference and preparation of any Agreed Order. Any member of the Advisory Committee who so participates in a prehearing conference shall thereafter be excused from proceedings on the complaint whether disposed of by Agreed Order, or in a contested case proceeding. (c) Participation in a prehearing conference shall not be mandatory for either party, and statements made by a respondent/applicant at any prehearing conference shall not be offered as evidence at any subsequent contested case hearing on the complaint. (d) Agreed Orders - The Credentialing Department Director may negotiate a proposed Agreed Order with any person. Failing the adoption of the rule proposed above or some- thing similar, TDHS should at least provide the administrator notice of when his case is scheduled to be heard by the Advisory Committee." Response: The department does not concur with the comments. The department is, however, entitling sec.18.18 "Informal Reconsideration." This process is not a prehearing conference and does not require participation of a Nursing Facility Administrator Advisory Committee member in reaching an agreed order. Senate Bill 84, at Section 242.303(d), stipulates that the committee review all complaints against administrators and make recommendations to the department regarding disciplinary actions. The department makes the final decision regarding disciplinary actions initiated against a nursing facility administrator for a violation of Texas Health and Safety Code, Chapter 242, Subchapter I, or the department's rules adopted under this subchapter. An advisory committee member does not participate in the informal proceedings offered to an administrator by the department; nor is the advisory committee member involved in settlement agreements between the department and an administrator and his attorney. The informal reconsideration is an administrator's opportunity to show compliance with law. Any evidence or documentation that was not available to surveyors/investigators at the time the standard or abbreviated standard survey was conducted may be presented by the administrator at this time. Senate Bill 84, at Section 242.312(f), mandates that the department dispose of complaints in a timely manner. Comment: Regarding sec.18.18(b), amend the proposed rule to state: "DHS's review, which shall include the Nursing Facility Administrators Advisory Committee, as defined in SB 84, shall be limited to a review of documentation submitted by the licensee and information DHS used as the basis for its proposed action and shall not be conducted as an adversary hearing. DHS shall give the licensee a written affirmation or reversal of the proposed action." Response: The department does not concur with the comments and recommends adoption of the language as proposed. Senate Bill 84 does not require the Nursing Facility Administrators Advisory Committee to participate in informal proceedings provided to an administrator. Senate Bill 84, at Section 242.303(d), stipulates that the committee review all complaints against administrators and make recommendations to the department regarding disciplinary actions. Comment: Regarding sec.18.19, Standard of Conduct, nothing within Texas Health and Safety Code 242.301 et seq. provides the statutory basis for the standards of conduct listed in this section. The statute does, however, allow for the department to develop a Code of Ethics. Delete sec.18.19 and develop a Code of Ethics. Response: The department does not concur with the comments and recommends adoption of the language as proposed. Senate Bill 84, at Section 242.303(d), states that the committee shall review and recommend rules and minimum standards of conduct for the practice of nursing facility administration. Comment: Regarding sec.18.19, Standards of Conduct, delete the word "shall" and substitute the word "may." The word shall, in this context, implies that the department will automatically take action for any and all violations, regardless of circumstances. The word "may" does not diminish the department's authority, but offers flexibility. Response: The department does not concur with the comments and recommends adoption of the language as proposed. However, the department will consider all evidence submitted by an administrator regarding a violation of the Texas Health and Safety Code, Chapter 242, Subchapter I or the department's rules adopted under this subchapter. Comment: Regarding sec.18.19(1), this requirement is very subjective and will be subject to continuous debate and controversy. The department should clarify what sufficient staffing actually is. Without standardized, statewide guidelines for administrators and surveyors/investigators, we cannot hope that this rule could ever be uniformly or consistently applied. Amend the language to state: "A licensee shall employ sufficient staff to adequately meet the needs of the facility residents as determined by the staffing requirements as outlined in the standard of participation. Care outcomes will also be considered." Response: The department does not concur with the comments and recommends adoption of the language as proposed. The intent of this rule is that there be systems in place to provide for staffing and subsequent training of staff to meet resident needs. The number of personnel should be adequate to prevent negative outcomes. Comment: Regarding sec.18.19(2),(3),(4), and (6), change the wording from "ensure" to a word that focuses on specific actions an administrator must take. Response: The department does not concur with the comments and recommends adoption of the language as proposed. "Ensure" as used in this context, clearly states the department's expectation of an administrator. Comment: Regarding sec.18.19(2),(3), and (6), after the word ensure, add the following language: "to the best of their ability." Response: The department does not concur with the comments and recommends adoption of the language as proposed. "Ensure" as used in this context, clearly states the department's expectation of an administrator. Comment: Regarding sec.18.19(6), this provision assumes that all administrators have powers that they do not. This provision makes individual administrators insurers of the personal safety of residents and public members. Response: The department does not concur with the comments and recommends adoption of the language as proposed. The proposed language clearly defines the department's expectation of an administrator regarding the physical maintenance of a facility. However, an administrator's obligations shall be interpreted on a case-by-case basis. For example, the department will consider documentation of requests an administrator has made to the owner of a facility for financial support in changing the way the facility is physically maintained. Comment: Regarding sec.18.19(9)-(12), (22), and (25), the meaning of the phrase "knowingly or through negligence: is unclear. Response: The department concurs with the comments and has therefore made a change to sec.18.19, which now states: "The Texas Department of Human Services (DHS) shall impose sanctions for a violation of the Texas Health and Safety Code, Chapter 242, Subchapter I, or rules adopted under that chapter, including the standards of conduct specified in paragraphs (1) - (26) of this section. Negligence, as used in this section, shall mean failure of a licensee to use such care as a reasonably prudent and careful licensee would use in similar circumstances, or failure to act as a reasonably prudent licensee would in similar circumstances." Comment: Regarding sec.18.19(9)-(12), (15)-(17), (21), and (25), the word "allow" is used; this is too broad and it is hard to tell exactly what is required of an administrator when this word is used. Substitute "allow" with other words, such as "direct" or "knowingly acquiesce." Response: The department does not concur and will adopt the language as proposed. The department's intent is clearly stated and the word "allow," as used in sec.18.19(9)-(12), (15)-(17), (21), and (25), is within the context of the authority of a nursing facility administrator. Comment: Regarding sec.18.19(16), amend the rule to state: "A licensee shall not instruct or knowingly allow employees, contractors, or volunteers to make misrepresentations or fraudulent statements about the operation of a nursing facility." Response: The department does not concur with the comments and will adopt the language as proposed. The department's intent is clearly stated in the proposed language. Comment: Regarding sec.18.19(25), the proposed language restricts a licensee from knowingly or through negligence allowing employees or other individuals to mismanage the personal funds of residents deposited with the facility. Is the administrator supposed to monitor the spending habits of each resident to make sure they spend their money wisely? The administrator's duty in this regards is ambiguous. Response: The department does not concur with the comments and will adopt the language as proposed. The proposed language was intended to prevent theft and conversion of resident funds by employees or other individuals. The department is not concerned about how a resident spends his own money. The department's intent is clearly stated in the proposed language. Comment: Regarding sec.18.20(c)(3), the proposed language allows DHS to consider an administrator's "history of previous violations" when deciding the amount of an administrative penalty. What is meant by this phrase? Does this allow DHS to view any previous allegation of wrongdoing or mismanagement as a violation? Response: Senate Bill 84, at Section 242.315(c)(3), states that the amount of the penalty shall be based on the history of previous violation. Any sanction that the department initiates against an administrator is based on standard or abbreviated standard survey findings that indicate a violation of Texas Health and Safety Code, Chapter 242, Subchapter I, or the department's rules adopted under this subchapter. The department does not initiate sanctions based on allegations. Comment: Regarding sec.18.20, create a new section to read as follows: "sec.18.20. Performance Review (a) Before the institution of proceedings to revoke or suspend a license or deny an application for the renewal of a license, the Texas Department of Human services (DHS) will examine the performance of a licensee, over a twenty four month period, starting with the first of the month following approval of these rules. (b) In determining the status of the licensee, DHS will utilize documentation that relates to sec.18.19 Standards of Conduct, paragraphs (1)-(26) in addition to any other relevant documentation. (c) At the end of each twenty-four month review cycle, if the licensee has not had his license suspended nor been guilty of a Level I violation, a new review cycle will begin by utilizing the latest twelve-month performance period. (Example: Say the review period is March 1, 1998 through February 28, 1999 and March 1, 1999 through February 28, 2000. The new cycle would begin using only data between March 1, 1999 and February 28, 2000.) (d) DHS may categorize violations in one of the following severity levels: (1) Level I - violations that have or had an adverse impact on resident health and/or safety that includes serious harm, permanent injury, or death to a resident. (2) Level II - violations that have or had a potential or adverse impact on the health and safety of a resident, but less than Level I; or (3) Level III - violations that have minimal or no significant impact on resident health and/or safety. (e) The licensee will have access to hearing procedures under sec.18.17(b) and sec.18.18. (f) The licensee shall be able to petition for judicial review as provided for in the Health and Safety Code 242.316 and the Government Code, 2001.176; or any other level of judicial review available under the laws of the State of Texas." Response: This was not the department's proposed language and the department has no response to this newly created section other than that the scheme, as established in sec.18.20, is adequate. The department recommends adoption of the language as proposed. Comment: Regarding sec.18.20(g), amend the rule to state: "The hearing shall be conducted in accordance with the provisions of the APA, Government Code Section 2001 et seq." Response: The department acknowledges that your comments are correct; however, the proposed language at sec.18.20(g) is being changed to state: "If the person requests a hearing or fails to respond timely to the notice, DHS shall set a hearing and give notice of the hearing to the person. The hearing shall be held in accordance with Chapter 79, Subchapter Q of this title (relating to Formal Hearings) and in accordance with the Government Code, Chapter 2001." 40 TAC sec.sec.18.17-18.20 The repeals are adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs, and under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs. The repeals implement the Texas Health and Safety Code, Chapter 242.302, as added by Acts 1997, 75th Legislature, Chapter 1280, sec.1.01, and the Human Resources Code, sec.sec.22.001-22.030. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 5, 1998. TRD-9809094 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: July 1, 1998 Proposal publication date: February 27, 1998 For further information, please call: (512) 438-3765 40 TAC sec.sec.18.17-18.20 The new sections are adopted under the Texas Health and Safety Code, Chapter 242, Subchapter I, (Nursing Facility Administration, sec.sec.242.301, added by Acts 1997, 75th Legislature, Chapter 1280, sec.1.01), which authorizes the department to license nurse facility administrators. The new sections implement the Texas Health and Safety Code, sec.sec.242.301- 242.322 , (Nursing Facility Administration, sec.sec.242.301, added by Acts 1997, 75th Legislature, Chapter 1280, sec.1.01), and the Human Resources Code, sec.sec.22.001- 22.030, and under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs. sec.18.17.Formal Hearing Procedures. (a) This section covers the formal hearing procedures and practices that shall be used by the Texas Department of Human Services (DHS) if imposing one or more of the sanctions specified in paragraphs (1)-(6) of this subsection: (1) revocation of a license; (2) suspension of a license; (3) denial of an application to renew a license; (4) issuance of a written reprimand to a licensee; (5) requirement of a licensee to participate in additional continuing education programs; or (6) placement of a licensee on probation. (b) Formal hearings shall be conducted under the provisions of the APA, Government Code, sec.2001 and hearing procedures in Chapter 79 of this title (relating to Legal Services). sec.18.18.Informal Reconsideration. (a) Before the institution of proceedings to revoke or suspend a license or deny an application for the renewal of a license, the Texas Department of Human Services (DHS) gives the licensee: (1) notice of the facts or conduct alleged to warrant the proposed action; and (2) an opportunity to demonstrate compliance with all requirements of law for the retention of the license by sending the Credentialing Department Director or designee a written request for an informal review. The request must: (A) be received within ten calendar days of the date of receipt of DHS's notice; and (B) contain specific documentation refuting DHS's allegations. (b) DHS's review shall be limited to a review of documentation submitted by the licensee and information DHS used as the basis for its proposed action and shall not be conducted as an adversary hearing. DHS shall give the licensee a written affirmation or reversal of the proposed action. sec.18.19.Standards of Conduct. The Texas Department of Human Services (DHS) shall impose sanctions for a violation of the Texas Health and Safety Code, Chapter 242, Subchapter I, or rules adopted under that chapter, including the standards of conduct specified in paragraphs (1)-(26) of this section. Negligence, as used in this section, shall mean failure of a licensee to use such care as a reasonably prudent and careful licensee would use in similar circumstances, or failure to act as a reasonably prudent licensee would in similar circumstances. (1) A licensee shall employ sufficient staff to adequately meet the needs of facility residents as determined by care outcomes. (2) A licensee shall ensure that sufficient resources are present to provide adequate nutrition, medications and treatments to facility residents in accordance with physician orders as determined by care outcomes. (3) A licensee shall promote and protect the rights of facility residents and ensure that employees, contractors, and others respect the rights of residents. (4) A licensee shall ensure that residents remain free of chemical and physical restraints unless required by a physician's order to protect a resident's health and safety. (5) A licensee shall report and direct facility staff to report any suspected case of abuse, neglect, or misappropriation of resident property as defined in sec.18.1(b) of this title (relating to Introduction), to the appropriate government agency. (6) A licensee shall ensure that the nursing facility is physically maintained in a manner that protects the health and safety of residents and the public. (7) A licensee shall notify and direct employees to notify an appropriate governmental agency of any suspected cases of criminal activity as defined by state and federal laws. (8) A licensee shall post in a conspicuous place and in clearly legible type, in the facility where employed, the notice provided by DHS which gives the Credentialing Department's address and telephone number for reporting complaints against an administrator. (9) A licensee shall not knowingly or through negligence, commit, direct, or allow actions which result or could result in inadequate care, harm, or injury to a resident. (10) A licensee shall not knowingly or through negligence allow nursing facility employees to harm facility residents by coercion, threat, intimidation, solicitation, harassment, theft of personal property, or cruelty. (11) A licensee shall not knowingly or through negligence allow or direct employees to contradict or alter in any manner, the orders of a physician regarding a resident's medical or therapeutic care. (12) A licensee shall not knowingly commit or through negligence allow another individual to commit an act of abuse, neglect, or misappropriation of resident property as defined in sec.18.1(b) of this title (relating to Introduction). (13) A licensee shall not permit another individual to use his or her license or allow a facility to falsely post his or her license. (14) A licensee shall not advertise or knowingly participate in the advertisement of nursing facility services in a manner which is fraudulent, false, deceptive, or misleading in form or content. (15) A licensee shall not knowingly allow, aid, abet, sanction, or condone a violation by another licensed nursing facility administrator of the Texas Health and Safety Code, Chapter 242, Subchapter I or the department's rules adopted under that section and shall report such violations to DHS. (16) A licensee shall not make or allow employees, contractors, or volunteers to make misrepresentations or fraudulent statements about the operation of a nursing facility. (17) A licensee shall not allow or direct facility employees, contractors, or others in a manner which results in the harassment or intimidation of any person for purposes of coercing that person to use the services or equipment of a particular health agency or facility. (18) A licensee shall not falsely bill for goods or services or allow another person to bill for goods or services other than those that have actually been rendered. (19) A licensee shall not make or file false reports or allow an employee, contractor, or volunteer to make or file a report that the licensee knows to be false. (20) A licensee shall not intentionally fail to file a report or record required by state or federal law; impede or obstruct such filings; or induce another person to impede or obstruct such filings. (21) A licensee shall not use or knowingly allow employees or others to use alcohol, narcotics, or other drugs in a manner which interferes with the performance of the administrator's or other person's duties. (22) A licensee shall not knowingly or through negligence violate any confidentiality provisions as prescribed by state or federal law concerning a resident. (23) A licensee shall not interfere or impede an investigation by withholding or misrepresenting fact to DHS representatives, or by using threats or harassment against any person involved or participating in the investigation. (24) A licensee shall not display a license issued by DHS which has been reproduced, altered, expired, suspended, or revoked. (25) A licensee shall not knowingly or through negligence allow employees or other individuals to mismanage the personal funds of residents deposited with the facility. (26) A licensee shall not bribe, attempt to bribe, harass or intimidate employees of DHS or other governmental agencies or its representatives in regard to the administration of the nursing facility. sec.18.20.Administrative Penalties. (a) The Texas Department of Human Services (DHS) may impose an administrative penalty against a person licensed or regulated under the Texas Health and Safety Code, Chapter 242, Subchapter I. (b) The penalty for a violation may be in an amount not to exceed $1,000. Each day a violation occurs or continues is a separate violation for purposes of imposing a penalty. (c) The amount of the penalty shall be based on: (1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of any prohibited acts, and the hazard or potential hazard created to the health, safety, or economic welfare of the public; (2) the economic harm to property or the environment caused by the violation; (3) the history of previous violations; (4) the amount necessary to deter future violations; (5) efforts to correct the violations; and (6) any other matter that justice may require. (d) If DHS determines a violation has occurred, then DHS shall give written notice by certified mail to the person alleged to have committed the violation. The notice shall include a: (1) brief summary of the alleged violation; (2) statement of the amount of the recommended penalty; and (3) statement informing the person of the right to a hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty. (e) Within 20 calendar days after the date the person receives the notice, the person may accept, in writing, the determination and the penalty recommended by DHS or may make a written request for a hearing. (f) If the person accepts DHS's determination and the penalty that is recommended, DHS shall impose the recommended penalty. (g) If the person requests a hearing or fails to respond timely to the notice, DHS shall set a hearing and give notice of the hearing to the person. The hearing shall be held in accordance with Chapter 79, Subchapter Q of this title (relating to Formal Hearings) and in accordance with the Government Code, Chapter 2001. (h) The notice of the hearing decision given to the person under Chapter 2001, Government Code, must include a statement of the right of the person to judicial review of the decision. (i) Within 30 calendar days after the date DHS's decision is final as provided by sec.2001.144, Government Code, the person shall: (1) pay the amount of the penalty; or (2) petition for judicial review as provided for in the Health and Safety Code, sec.242.316 and the Government Code, sec.2001.176; or (3) do both actions stated in paragraphs (1) and (2) of this subsection. (j) The proceedings under this section are subject to Chapter 2001, Government Code. (k) DHS shall categorize violations in one of the following severity levels: (1) Level I - violations that have or had an adverse impact on resident health and/or safety that includes serious harm, permanent injury, or death to a resident. (2) Level II - violations that have or had a potential or adverse impact on the health and safety of a resident, but less than Level I; or (3) Level III - violations that have minimal or no significant impact on resident health and/or safety. (l) DHS shall impose an administrative penalty based on the severity level of the violation as follows: (1) Level I - $500 - $1,000; (2) Level II - $250 - $500; and (3) Level III - $250 or less. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 5, 1998. TRD-9809093 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: July 1, 1998 Proposal publication date: February 27, 1998 For further information, please call: (512) 438-3765 PART II. Texas Rehabilitation Commission CHAPTER 101.General Rules The Texas Rehabilitation Commission adopts amendments to sec.sec.101.1, 101.2, 101.8-101.10, 101.13 and the repeal of sec.101.6 and sec.101.7, concerning general rules. Section 101.1 is adopted with changes to the proposed text as published in the May 8, 1998, issue of the Texas Register (23 TexReg 4535). Sections 101.2, 101.8, 101.9, 101.10, 101.13 and the repeal of sec.101.6 and sec.101.7 are adopted without changes and will not be republished. In accordance with the Appropriations Act, sec.167, the Commission has reviewed these sections and has determined that sec.101.6 and sec.101.7 should be repealed and that sec.sec.101.1, 101.2, 101.8, 101.9, 101.10, and 101.13 should be readopted. The sections are being amended and repealed in order to conform to the language of the Rehabilitation Act Amendments of 1994. No comments were received regarding adoption of the amendments and repeals. 40 TAC sec.sec.101.1, 101.2, 101.8-101.10, 101.13 The amendments are adopted under the Texas Human Resources Code, Title 7, Chapter 111, sec.111.018 and sec.111.023, House Bill Number 1, Article IX, sec.167, which provides the Texas Rehabilitation Commission with the authority to promulgate rules consistent with Title 7, Texas Human Resources Code. sec.101.1. Definitions. Words and terms are used as defined in the Rehabilitation Act of 1973, as amended, and implemented by 34 Code of Federal Regulations and the Human Resources Code, Title 7, unless the context clearly indicates another meaning. Words and terms defined in such federal and state laws and regulations are applicable to this part. (1) Applicant-An individual who applies to the Texas Rehabilitation Commission for vocational rehabilitation services, extended rehabilitation services, or independent living services. (2) Board-Board of the Texas Rehabilitation Commission appointed under the provision of the Human Resources Code, Title 7. (3) Client-An individual with a disability who is determined eligible by the Texas Rehabilitation Commission for vocational rehabilitation services or other commission services. (4) Commission-The Texas Rehabilitation Commission. (5) Counselor-An employee of the commission who is trained to provide vocational guidance and counseling and meets the minimum qualifications designated in a functional job description. (6) Sheltered workshop-An occupation-oriented facility operated by a not-for- profit agency, public or private, which, except for its staff, employs only individuals with mental or physical disabilities. (7) State plan-The plan for vocational rehabilitation services submitted by this commission in compliance with the Rehabilitation Act of 1973, as amended, Title I. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809134 Charles Schiesser Chief of Staff Texas Rehabilitation Commission Effective date: June 28, 1998 Proposal publication date: May 8, 1998 For further information, please call: (512) 424-4050 40 TAC sec.101.6, sec.101.7 The repeals are adopted under the Texas Human Resources Code, Title 7, Chapter 111, sec.111.018 and sec.111.023, House Bill Number 1, Article IX, sec.167, which provides the Texas Rehabilitation Commission with the authority to promulgate rules consistent with Title 7, Texas Human Resources Code. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809135 Charles Schiesser Chief of Staff Texas Rehabilitation Commission Effective date: June 28, 1998 Proposal publication date: May 8, 1998 For further information, please call: (512) 424-4050 CHAPTER 103.Vocational Rehabilitation Services Program SUBCHAPTER A.Provision of Vocational Rehabilitation Services 40 TAC sec.sec.103.1, 103.4, 103.9, 103.11-103.13, 103.15-103.17, 103.19 The Texas Rehabilitation Commission adopts amendments to sec.sec.103.1, 103.4, 103.9, 103.11-103.13, 103.15-103.17, 103.19, 103.21, 103.31, 103.32, 103.41, 103.42, 103.44, and 103.51-103.55, concerning vocational rehabilitation services program. Section 103.4 is adopted with changes to the proposed text as published in the May 8, 1998, issue of the Texas Register (23 TexReg 4537). Sections 103.1, 103.9, 103.11-103.13, 103.15-103.17, 103.19, 103.21, 103.31, 103.32, 103.41, 103.42, 103.44, and 103.51-103.55 are adopted without changes and will not be republished. In accordance with the Appropriations Act, sec.167, the Commission has reviewed these sections and has determined that they should be readopted. Sections 103.1, 103.4, 103.9, 103.13, 103.15-103.17, 103.19, 103.21, 103.31, 103.32, 103.41, 103.42, 103.44, and 103.51-103.55 are being amended to make the rules consistent with Federal Regulations. Section 103.11 and sec.103.12 are being amended in order to conform to the language of the Rehabilitation Act Amendments of 1994. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Human Resources Code, Title 7, Chapter 111, sec.111.018 and sec.111.023, House Bill Number 1, Article IX, sec.167, which provides the Texas Rehabilitation Commission with the authority to promulgate rules consistent with Title 7, Texas Human Resources Code. sec.103.4. Preliminary and Comprehensive Assessment. (a) Preliminary assessment. To determine whether an individual is eligible for vocational rehabilitation services, the commission conducts a preliminary assessment sufficient to determine: (1) whether the individual has a physical or mental impairment; (2) whether the physical of mental impairment constitutes or results in a substantial impediment to employment for the individual; (3) whether the individual can benefit in terms of achieving an employment outcome, after receiving vocational rehabilitation services; and (4) whether the individual requires VR services to prepare for, enter into, engage in, or retain gainful employment consistent with the individuals strengths, resources, priorities, concerns, abilities, capabilities and informed choice. (b) Comprehensive assessment. The commission, as appropriate in each case, shall conduct a comprehensive assessment of the unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and needs, including the need for supported employment services, of an eligible individual, in the most integrated setting possible, consistent with the informed choice of the individual. The comprehensive assessment is limited to information that is necessary to identify the rehabilitation needs of the individual and develop the IWRP and may, to the extent needed, include: (1) an analysis of pertinent medical, psychological, vocational, educational, and other related factors which bear on the individual's impediment to employment and rehabilitation needs. Additional examinations are authorized after services are initiated when conditions arise that jeopardize the individual's written rehabilitation program; (2) an analysis of the individual's personality, career interest, interpersonal skills, intelligence and related functional capacities, educational achievement work experience, vocational aptitudes, personal and social adjustments, and employment opportunities; (3) an appraisal of the individual's patterns of work behavior and services needed to acquire occupational skills and to develop work attitudes, work habits, work tolerance, and social and behavioral patterns suitable for successful job performance; and (4) an assessment, through provision of rehabilitation technology services, of the individual's capacities to perform in a work environment, including in an integrated setting, to the maximum extent feasible and consistent with the individual's informed choice. (c) Existing information. The commission shall use, to the maximum extent possible and appropriate and in accordance with confidentiality requirements, existing information, including information that is provided by the individual, the family of the individual, and education agencies. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809136 Charles Schiesser Chief of Staff Texas Rehabilitation Commission Effective date: June 28, 1998 Proposal publication date: May 8, 1998 For further information, please call: (512) 424-4050 SUBCHAPTER B.Client Participation 40 TAC sec.103.21 The amendment is adopted under the Texas Human Resources Code, Title 7, Chapter 111, sec.111.018 and sec.111.023, House Bill Number 1, Article IX, sec.167, which provides the Texas Rehabilitation Commission with the authority to promulgate rules consistent with Title 7, Texas Human Resources Code. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809137 Charles Schiesser Chief of Staff Texas Rehabilitation Commission Effective date: June 28, 1998 Proposal publication date: May 8, 1998 For further information, please call: (512) 424-4050 SUBCHAPTER C.Comparable Benefits 40 TAC sec.103.31, sec.103.32 The amendments are adopted under the Texas Human Resources Code, Title 7, Chapter 111, sec.111.018 and sec.111.023, House Bill Number 1, Article IX, sec.167, which provides the Texas Rehabilitation Commission with the authority to promulgate rules consistent with Title 7, Texas Human Resources Code. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809138 Charles Schiesser Chief of Staff Texas Rehabilitation Commission Effective date: June 28, 1998 Proposal publication date: May 8, 1998 For further information, please call: (512) 424-4050 SUBCHAPTER D.Eligibility, Ineligibility, and Certification 40 TAC sec.sec.103.41, 103.42, 103.44 The amendments are adopted under the Texas Human Resources Code, Title 7, Chapter 111, sec.111.018 and sec.111.023, House Bill Number 1, Article IX, sec.167, which provides the Texas Rehabilitation Commission with the authority to promulgate rules consistent with Title 7, Texas Human Resources Code. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809139 Charles Schiesser Chief of Staff Texas Rehabilitation Commission Effective date: June 28, 1998 Proposal publication date: May 8, 1998 For further information, please call: (512) 424-4050 SUBCHAPTER E.Methods of Administration of Vocational Rehabilitation 40 TAC sec.sec.103.51-103.55 The amendments are adopted under the Texas Human Resources Code, Title 7, Chapter 111, sec.111.018 and sec.111.023, House Bill Number 1, Article IX, sec.167, which provides the Texas Rehabilitation Commission with the authority to promulgate rules consistent with Title 7, Texas Human Resources Code. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809140 Charles Schiesser Chief of Staff Texas Rehabilitation Commission Effective date: June 28, 1998 Proposal publication date: May 8, 1998 For further information, please call: (512) 424-4050 CHAPTER 105.Extended Rehabilitation Services Program The Texas Rehabilitation Commission adopts amendments to sec.sec.105.1, 105.3- 105.5 and the repeal of sec.105.6, concerning extended rehabilitation services program, without changes to the proposed text as published in the May 8, 1998, issue of the Texas Register (23 TexReg 4543). In accordance with the Appropriations Act, sec.167, the Commission has reviewed these sections and has determined that sec.105.6 should be repealed and that sec.sec.105.1, 105.3-105.5 should be readopted. The sections are being amended and repealed in order to conform to the language of the Rehabilitation Act Amendments of 1994. No comments were received regarding adoption of the amendments and repeal. 40 TAC sec.sec.105.1, 105.3-105.5 The amendments are adopted under the Texas Human Resources Code, Title 7, Chapter 111, sec.111.018 and sec.111.023, House Bill Number 1, Article IX, sec.167, which provides the Texas Rehabilitation Commission with the authority to promulgate rules consistent with Title 7, Texas Human Resources Code. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809141 Charles Schiesser Chief of Staff Texas Rehabilitation Commission Effective date: June 28, 1998 Proposal publication date: May 8, 1998 For further information, please call: (512) 424-4050 40 TAC sec.105.6 The repeal is adopted under the Texas Human Resources Code, Title 7, Chapter 111, sec.111.018 and sec.111.023, House Bill Number 1, Article IX, sec.167, which provides the Texas Rehabilitation Commission with the authority to promulgate rules consistent with Title 7, Texas Human Resources Code. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809142 Charles Schiesser Chief of Staff Texas Rehabilitation Commission Effective date: June 28, 1998 Proposal publication date: May 8, 1998 For further information, please call: (512) 424-4050 CHAPTER 107.Independent Living Services Program 40 TAC sec.sec.107.1, 107.2, 107.5 The Texas Rehabilitation Commission adopts amendments to sec.sec.107.1, 107.2, and 107.5, concerning independent living services program, without changes to the proposed text as published in the May 8, 1998, issue of the Texas Register (23 TexReg 4544). In accordance with the Appropriations Act, sec.167, the Commission has reviewed these sections and has determined that they should be readopted. Section 107.1 and sec.107.2 are being amended in order to conform to the language of the Rehabilitation Act Amendments of 1994. Section 107.5 is being amended to give a more detailed explanation of the availability of independent living services. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Human Resources Code, Title 7, Chapter 111, sec.111.018 and sec.111.023, House Bill Number 1, Article IX, sec.167, which provides the Texas Rehabilitation Commission with the authority to promulgate rules consistent with Title 7, Texas Human Resources Code. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809143 Charles Schiesser Chief of Staff Texas Rehabilitation Commission Effective date: June 28, 1998 Proposal publication date: May 8, 1998 For further information, please call: (512) 424-4050 CHAPTER 111.Medicaid Waiver Program for People who are Deaf-Blind with Multiple Disabilities 40 TAC sec.sec.111.1-111.4 The Texas Rehabilitation Commission adopts amendments to sec.sec.111.1-111.4, concerning Medicaid waiver program for people who are deaf-blind with multiple disabilities, without changes to the proposed text as published in the May 8, 1998, issue of the Texas Register (23 TexReg 4545). In accordance with the Appropriations Act, sec.167, the Commission has reviewed these sections and has determined that they should be readopted. The sections are being amended in order to conform to the language of the Rehabilitation Act Amendments of 1994. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Human Resources Code, Title 7, Chapter 111, sec.111.018 and sec.111.023, House Bill Number 1, Article IX, sec.167, which provides the Texas Rehabilitation Commission with the authority to promulgate rules consistent with Title 7, Texas Human Resources Code. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809144 Charles Schiesser Chief of Staff Texas Rehabilitation Commission Effective date: June 28, 1998 Proposal publication date: May 8, 1998 For further information, please call: (512) 424-4050 CHAPTER 113.Comprehensive Rehabilitation Services 40 TAC sec.sec.113.1, 113.2, 113.4, 113.5 The Texas Rehabilitation Commission adopts amendments to sec.sec.113.1, 113.2, 113.4, and 113.5, concerning comprehensive rehabilitation services, without changes to the proposed text as published in the May 8, 1998, issue of the Texas Register (23 TexReg 4546). In accordance with the Appropriations Act, sec.167, the Commission has reviewed these sections and has determined that they should be readopted. The sections are being amended to more closely align the language of these rules with the current Rehabilitation Services Manual. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Human Resources Code, Title 7, Chapter 111, sec.111.018 and sec.111.023, House Bill Number 1, Article IX, sec.167, which provides the Texas Rehabilitation Commission with the authority to promulgate rules consistent with Title 7, Texas Human Resources Code. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809145 Charles Schiesser Chief of Staff Texas Rehabilitation Commission Effective date: June 28, 1998 Proposal publication date: May 8, 1998 For further information, please call: (512) 424-4050 CHAPTER 115.Memoranda of Understanding With Other State Agencies The Texas Rehabilitation Commission adopts the repeal of sec.115.6 and an amendment to sec.115.8, concerning memoranda of understanding with other state agencies, without changes to the proposed text as published in the May 8, 1998, issue of the Texas Register (23 TexReg 4547). In accordance with the Appropriations Act, sec.167, the Commission has reviewed these sections and has determined that sec.115.6 should be repealed and that sec.115.8 should be readopted. Section 115.8 is being amended to reflect changes in the names of various state agencies. No comments were received regarding adoption of the repeal and amendment. 40 TAC sec.115.6 The repeal is adopted under the Texas Human Resources Code, Title 7, Chapter 111, sec.111.018 and sec.111.023, House Bill Number 1, Article IX, sec.167, which provides the Texas Rehabilitation Commission with the authority to promulgate rules consistent with Title 7, Texas Human Resources Code. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809146 Charles Schiesser Chief of Staff Texas Rehabilitation Commission Effective date: June 28, 1998 Proposal publication date: May 8, 1998 For further information, please call: (512) 424-4050 40 TAC sec.115.8 The amendment is adopted under the Texas Human Resources Code, Title 7, Chapter 111, sec.111.018 and sec.111.023, House Bill Number 1, Article IX, sec.167, which provides the Texas Rehabilitation Commission with the authority to promulgate rules consistent with Title 7, Texas Human Resources Code. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809147 Charles Schiesser Chief of Staff Texas Rehabilitation Commission Effective date: June 28, 1998 Proposal publication date: May 8, 1998 For further information, please call: (512) 424-4050 CHAPTER 116.Advisory Committees/Councils The Texas Rehabilitation Commission adopts an amendment to sec.116.5 and the repeal of sec.116.6 and sec.116.7, concerning advisory committees/councils, without changes to the proposed text as published in the May 8, 1998, issue of the Texas Register (23 TexReg 4548). In accordance with the Appropriations Act, sec.167, the Commission has reviewed these sections and has determined that sec.116.6 and sec.116.7 should be repealed and that sec.116.5 should be readopted. The sections are being amended and repealed to reflect the language of TRC's Administrative Policy and Procedures Manual. No comments were received regarding adoption of the repeals and amendment. 40 TAC sec.116.5 The amendment is adopted under the Texas Human Resources Code, Title 7, Chapter 111, sec.111.018 and sec.111.023, House Bill Number 1, Article IX, sec.167, which provides the Texas Rehabilitation Commission with the authority to promulgate rules consistent with Title 7, Texas Human Resources Code. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809148 Charles Schiesser Chief of Staff Texas Rehabilitation Commission Effective date: June 28, 1998 Proposal publication date: May 8, 1998 For further information, please call: (512) 424-4050 40 TAC sec.116.6, sec.116.7 The repeals are adopted under the Texas Human Resources Code, Title 7, Chapter 111, sec.111.018 and sec.111.023, House Bill Number 1, Article IX, sec.167, which provides the Texas Rehabilitation Commission with the authority to promulgate rules consistent with Title 7, Texas Human Resources Code. 116.6. Increased Client Choice Advisory Committee. sec.116.7. Regional Consumer Advisory Committee. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 8, 1998. TRD-9809149 Charles Schiesser Chief of Staff Texas Rehabilitation Commission Effective date: June 28, 1998 Proposal publication date: May 8, 1998 For further information, please call: (512) 424-4050 PART VI. Texas Commission for the Deaf and Hard of Hearing CHAPTER 181.General Rules of Practice and Procedures SUBCHAPTER A.General Provisions 40 TAC sec.181.41 The Texas Commission for the Deaf and Hard of Hearing is adopting the repeal of sec.181.41. Services for Deaf and Hearing-Impaired Individuals, concerning the placement of TDDs in selected state agencies and in emergency dispatch communication centers in selected units of local governments without changes as published in the April 17, 1998, issue of the Texas Register (23 TexReg 3812). Justification for the repeal will be the elimination of a rule which no longer authorizes placements. No comments were received regarding adoption of the repeal. This repeal is adopted under the Human Resources Code, sec.81.006(b)(3), which provides the Texas Commission for the Deaf and Hard of Hearing with the authority to adopt rules for administration and programs. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 5, 1998. TRD-9809056 David W. Myers Executive Director Texas Commission for the Deaf and Hard of Hearing Effective date: June 25, 1998 Proposal publication date: April 17, 1998 For further information, please call: (512) 407-3250 SUBCHAPTER F.Fees 40 TAC sec.181.810 The Texas Commission for the Deaf and Hard of Hearing is adopting the repeal of sec.181.810, concerning establishing prices for TCDHH publications without changes as published in the April 17, 1998, issue of the Texas Register (23 TexReg 3812). Justification for the repeal will be the elimination of duplicate rules. No comments were received regarding adoption of the repeal. This repeal is adopted under the Human Resources Code, sec.81.006(b) (3), which provides the Texas Commission for the Deaf and Hard of Hearing with the authority to adopt rules for administration and programs. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 5, 1998. TRD-9809057 David W. Myers Executive Director Texas Commission for the Deaf and Hard of Hearing Effective date: June 25, 1998 Proposal publication date: April 17, 1998 For further information, please call: (512) 407-3250 40 TAC sec.181.840 The Texas Commission for the Deaf and Hard of Hearing is adopting the repeal of sec.181.840, concerning the establishment of a sliding fee scale used for interpreter services that are provided in non-governmental settings and that are reimbursed by the Commission without changes as published in the April 17, 1998, issue of the Texas Register (23 TexReg 3813). Justification for the repeal will be the elimination of a rule which no longer has authority. No comments were received regarding adoption of the repeal. This repeal is adopted under the Human Resources Code, sec.81.006(b)(3), which provides the Texas Commission for the Deaf and Hard of Hearing with the authority to adopt rules for administration and programs. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on June 5, 1998. TRD-9809058 David W. Myers Executive Director Texas Commission for the Deaf and Hard of Hearing Effective date: June 25, 1998 Proposal publication date: April 17, 1998 For further information, please call: (512) 407-3250