FEE SCHEDULE NEWS:

• A new Home Health and Dental Fee Schedule have been adopted with an effective date of September 5, 2019.

REGULATORY ACTIVITY:

• The Texas Department of Insurance has issued bulletin B-0008-19 reminding health plans, pharmacy benefit managers, and utilization review agents of the utilization review and adverse determination requirements and the changes starting September 1, 2019. To view the bulletin, go to https://www.tdi.texas.gov/bulletins/2019/B-0008-19.html.
• Published notice of proposed new rules to implement Senate Bill 935 enacted this past calendar year. SB 935 requires DWC to adopt rules necessary to implement Labor Code §413.0112 no later than December 1, 2019. The rules will establish requirements for processing medical bills for services provided to an injured employee by a federal military treatment facility (FMTF), as well as a separate medical dispute resolution process to resolve charges billed directly to an injured employee by an FMTF. The change in law made by SB 935 applies to health care services provided to an injured employee on or after January 1, 2020, regardless of the date of injury. To view the notice, go to https://www.tdi.texas.gov/alert/whatsnew/index.html. To view the rules, go to https://www.tdi.texas.gov/wc/rules/2019rules.html.
• The Texas Department of Insurance issued a bulletin on August 28 reminding health plans, pharmacy benefit managers, and utilization review agents that a pharmacist cannot deny a physician’s order for a drug or treatment over questions of medical necessity or appropriateness. That bulletin has been amended to clarify specialty physician reviews. The Texas Department of Insurance reminds health plans, pharmacy benefit managers, and utilization review agents (URAs) that only appropriate physicians, doctors, or health care providers may issue adverse determinations. Under Texas law and rules, a pharmacist cannot deny a physician’s order for a drug or treatment over questions of medical necessity or appropriateness. Title 28, Section 19.1705(d) of the Texas Administrative Code requires that “adverse determinations must be referred to and may only be determined by an appropriate physician, doctor, or other health care provider … to determine medical necessity or appropriateness, or the experimental or investigational nature, of health care services.” In addition, the treating physician must be given the opportunity for a peer-to-peer discussion about the treatment plan before the URA issues an adverse determination. Title 28, Section 19.1710 of the Texas Administrative Code requires that the discussion “include, at a minimum, the clinical basis for the URA's decision and a description of documentation or evidence, if any that can be submitted by the provider of record that, on appeal, might lead to a different utilization review decision.”  Beginning September 1, 2019, Senate Bill 1742 from the 86th Texas Legislature requires that all utilization reviews for services ordered by a physician must be reviewed by a licensed physician. Specialty physicians have the option of requesting that a denial or a denial of an appeal be reviewed by a physician of the same or similar specialty. TDI will continue to review compliance with utilization review rules as part of regular audits and exams. Any health plan out of compliance faces potential disciplinary action, including administrative penalties. To view the amended bulletin, go to https://www.tdi.texas.gov/bulletins/index.html.
• The Texas Department of Insurance, Division of Workers' Compensation (DWC) has revised DWC Form-073, Work Status Report. The revised form is available at tdi.texas.gov/forms/form20numeric.html.  The revised DWC Form-073 reflects that advanced practice registered nurses (APRNs) may complete and file the form as authorized by House Bill (HB) 387 (86th Legislature, Regular Session, 2019). Other changes were made to the form to make it appear less cluttered and to update unnecessary, outdated information.   On August 7, 2019, DWC posted a proposed draft of DWC Form-073 and requested informal comments. Because the draft was not a formal rule proposal under the Administrative Procedures Act, comments were not treated as formal public comments. However, based on the comments received, DWC made further revisions to the form.  To view the notice, go to https://www.tdi.texas.gov/alert/whatsnew/index.html. 
• Issued bulletin B-009-19 regarding legislation enacted in the 86th Legislature, Regular Session 2019.This bulletin provides summaries of selected bills enacted by the 86th Legislature that affect workers’ compensation and may be relevant to individuals and entities regulated by the Texas Department of Insurance, Division of Workers’ Compensation (DWC). DWC is only providing summary information in this bulletin regarding particular provisions of the bills that may apply to the regulation of workers’ compensation. Please refer to the actual bills for the complete content of the legislation. Bills listed in this bulletin will link directly to the bill text. You may also access the bills, as well as other legislative information, at the Texas Legislature Online website at https://capitol.texas.gov/.  While DWC encourages use of this bulletin to aid in your compliance efforts, individuals and entities regulated by DWC are responsible for ensuring compliance with all enacted legislation affecting the business they conduct.
• Texas has published the statewide average weekly wage/maximum and minimum weekly benefits effective October 1, 2019 - September 30, 2020. The statewide average weekly wage is $971.71.  To view the complete listing of benefits effective October 1, 2019 go to, https://www.tdi.texas.gov/wc/employee/maxminbens.html.

REGULATORY ACTIVITY:

• The Texas Department of Insurance, Division of Workers’ Compensation (DWC) is accepting comments on an informal working draft of rule amendments for 28 Texas Administrative Code §§2, 124.3, 180.8, and 180.26 to implement Senate Bill (SB) 2551, 86th Legislature (2019).Rule 124.2 outlines the amended process for claim notification pursuant to SB 2551.The amendments to Rule 124.3 describe an insurance carrier’s obligation to investigate when it receives notice of an injury for which a presumption may apply on a claim and the process they must follow when investigating a presumption claim under Chapter 607 of the Texas Government Code. Rule 180.8 relates to the assessment of administrative penalties in claims where the insurance carrier provided notice under Section 409.021(a-3). Rule 180.26 is amended to include the additional factors to be considered when determining sanctions.  Additional editorial corrections are made throughout to align them with current style and usage. Under SB 2551, DWC is required to adopt all rules necessary no later than January 1, 2020. The informal working draft of the rules would establish that under certain circumstances, an insurance carrier is not required to comply with the 15-day deadline to either initiate benefit payments in response to a claim or provide notice of refusal. To qualify for this exemption, the insurance carrier must send to both the claimant and DWC, within 15 days, a notice describing the steps it has taken to investigate the employee’s injury and any evidence it believes is reasonably required for it to complete its investigation of the compensability of the injury. The changes in law made by SB 2551 apply to a claim for benefits filed on or after June 10, 2019. Rule 124.2
  • Adds new Subsection (f) and (g) to establish the notice requirements provided for under Labor Code §409.021(a-3).
  • Provides additional denial notice requirements in Subsection (i) if the denial relates to a written notice of injury where a presumption under Government Code Chapter 607, Subchapter B, may be applicable.
  • Adds a new Subsection (r) to establish minimum standards for plain language notices. 2 Rule 124.3
  • Adds a new Subsection (b) to provide that if an insurance carrier receives written notice of injury where a presumption under Government Code Chapter 607, Subchapter B, may apply, the insurance carrier is required to investigate each element thoroughly in addition to investigating the compensability of the injury, the insurance carrier’s liability for the injury, and the accrual of benefits.
  • Adds a new Subsection (c) to provide for the filing of a notice of denial as required by Labor Code §409.022 (relating to Refusal to Pay Benefits; Notice; Administrative Violation) and Rule 124.2. Subsection (c) also conforms existing rule language governing an insurance carrier’s liability for any benefits that accrue and the insurance carrier’s duty to initiate benefits with changes made by SB 2551.
  • Deletes obsolete penalty provisions in what is now Subsection (c) (4) (A).
  • Deletes obsolete transition language in existing Subsection (f).Rule 180.8
  • Conforms the requirements for notices of violations with the changes made by SB 2551 by including a description of the underlying facts considered by DWC for each of the factors listed in Labor Code §415.021(c) and (c-2), if applicable in the statement of the basis for each proposed sanction. Rule 180.26
  • Adds a new Subsection (f) to establish when determining which sanction to impose against a system participant and the severity of that sanction in claims where the insurance carrier provided notice under Labor Code §409.021(a-3).
• The Texas Department of Insurance, Division of Workers’ Compensation (DWC) is accepting public comment on a proposed new form:  DWC Form-029, Request for Standard Detailed Data Reports.  Insurance carriers, including certified self-insurers, certified self-insurer groups, and governmental entities, may submit the new form to ask for claim-level data they have already submitted to DWC. The data will be made available to them or another entity on their behalf. The reports provide the detail related to the insurance carrier performance scorecards for:
  • timely payment of initial temporary income benefits (TIBs) and EDI reporting;
  • timely processing of medical bills and EDI reporting; and
  • timely processing of reconsideration medical bills and EDI reporting.

The new form will replace the current process for requesting standard detailed data reports through DWC’s open records portal. DWC will establish a secure file transfer protocol (SFTP) box to provide data to the requestor.   The proposed form is available on the TDI website at www.tdi.texas.gov/wc/rules/drafts.html. Written comments on the form may be submitted by email to RuleComments@tdi.texas.gov, or by mailing or delivering your comments to Cynthia Guillen Office of General Counsel, MS - 4D  Texas Department of Insurance, Division of Workers’ Compensation 7551 Metro Center Drive, Suite 100 Austin, Texas 78744-1645.  To view a copy of the notice, go to https://www.tdi.texas.gov/alert/whatsnew/index.html.  To view a copy of the form, go to https://www.tdi.texas.gov/wc/rules/drafts.html.

FEE SCHEDULE NEWS:

• A new Home Health and Dental Fee Schedule effective July 1, 2019 have been adopted. The next update is expected in October 2020.

REGULATORY ACTIVITY:

• The Texas Department of Insurance, Division of Workers' Compensation (DWC) is readopting all sections within the “Old Law” chapters, Chapters 41-69, of Title 28, Part 2 of the Texas Administrative Code. This re-adoption is in compliance with Texas Government Code §2001.039, which require a state agency to review each of its rules every four years and to readopt, readopt with amendment, or repeal the rule.  A notice of rule review was published in the April 5, 2019, issue of the Texas Register (44 Tex. Reg. 1719 (2019).   DWC received eight comments on the review.  The comments support readopting the rules and propose amending the medical fee guidelines.  Any repeals or suggested amendments identified during the review of these rules may be considered in future rulemaking in accordance with the Administrative Procedures Act, Texas Government Code Chapter 2001.
• The Texas Department of Insurance, Division of Workers' Compensation (DWC) will review all sections within 28 Texas Administrative Code (TAC) Chapters 102 – 116.  DWC is accepting public comments on whether rules within 28 TAC Chapters 102 – 116 still have reason to exist and whether these rules should be repealed, readopted, or readopted with amendments as required under Texas Government Code §2001.039.  To comment on this rule review project, submit written comments by 5 p.m., Central time, on August 8, 2019. Comments received after that date will not be considered. Send written comments or hearing requests by email to rulecomments@tdi.texas.gov or by mail to Texas Department of Insurance, Division of Workers' Compensation Cynthia Guillen Office of General Counsel, MS – 4D 7551 Metro Center Drive, Suite 100 Austin, Texas 78744-1645. Any repeals or suggested amendments identified during the review of these rules may be considered in future rulemaking in accordance with the Administrative Procedures Act, Texas Government Code Chapter 2001.  To view this notice, go to https://www.tdi.texas.gov/alert/whatsnew/index.html.

LEGISLATIVE ACTIONS:

• House Bill 29

The enacted legislation gives patients the right to receive direct access to treatment from a physical therapist for a maximum of 30 consecutive calendar days. After 30 days, the therapist could only continue treatment with a referral from a primary care physician. Multiple studies show giving patients direct access to physical therapy treatment increases access to care, decreases patient costs and wait times, and correlates with a much lower risk of being prescribed opioids. Effective Date September 1, 2019. 

• House Bill 387

It has been noted that, although the workers' compensation system allows advance practice registered nurses (APRNs) to treat injured workers, APRNs are not currently authorized to complete and sign work status reports, which may create unnecessary delays for patients and additional paperwork burdens for delegating physicians. H.B. 387 seeks to make the documentation process more efficient by authorizing a licensed APRN to complete and sign such a report. The enacted legislation amends current law relating to submission of reports by an advanced practice registered nurse under the workers' compensation system. Effective Date September 1, 2019.  

• House Bill 1665

The enacted legislation eliminates unnecessary reporting requirements to DWC. DWC accepts and stores the DWC Form-84 but does not use it to make decisions or prove claims. Eliminating this reporting requirement will help clarify DWC's statutory responsibilities and allow system stakeholders and DWC to reallocate resources to more meaningful obligations.  Effective Date May 23, 2019. 

• House Bill 2143

The enacted legislation provides that post-traumatic stress disorder suffered by a first responder is a compensable injury. Effective Date September 1, 2019.  

• House Bill 2503

The enacted legislation provides benefits for life to a surviving spouse of a first responder who died in the course and scope of employment even if the spouse remarries.  This applies regardless of date of injury.  Effective Date September 1, 2019. 

• Senate Bill 612

The enacted legislation provides for the continuation of the funding and operation of the State Office of Risk Management. Effective Date September 1, 2019. 

• Senate Bill 619

The enacted legislation adjusts when sunset review will occur on state agencies to 12 to 14 years. The legislation adjusts when the Division of Workers’ Compensation Commission is to be reviewed from September 1, 2021 to September 1, 2023. Effective Date June 10, 2019. 

• Senate Bill 935

The enacted legislation remedies a situation whereby a federal military treatment facility is balance billing an injured worker because the insurer is limited to payment not to exceed the state fee schedule. The enacted legislation  remedies this situation from occurring in the future by providing a definition of "federal military treatment facility" and clarifying that medical care provided in these facilities is exempt from certain workers' compensation statutory requirements related to network participation, medical billing, and reimbursements. It would also set the reimbursement rates at these facilities as the same as provided by federal law. Effective Date September 1, 2019. 

• Senate Bill 1336

The enacted legislation amends the Insurance Code to remove the requirement for the Texas Department of Insurance (TDI) to establish classification relativities, for purposes of the workers' compensation classification system for workers' compensation insurance rate filings, applicable to an employer's payroll in each of the classes of hazards at levels adequate to the risks to which the relativities apply. The bill repeals the requirement for TDI to develop and publish classification relativities specifically designed for the risks insured by an insurer of last resort. The bill changes the frequency at which TDI is required to revise the workers' compensation classification system from at least once every five years to as necessary to carry out the purposes of provisions relating to rates for workers' compensation insurance.  The legislation applies only to an insurance policy that is delivered, issued for delivery, or renewed on or after July 1, 2020.  Effective Date September 1, 2019. 

• Senate Bill 1588

The enacted legislation amends the Government Code to extend the applicability of provisions relating to a determination of whether the disability or death of an applicable firefighter or emergency medical technician resulted from a disease or illness contracted by the firefighter or emergency medical technician in the course and scope of employment for purposes of certain benefits to peace officers who satisfy the same conditions as an applicable firefighter or emergency medical technician. The bill extends to peace officers the entitlement of a firefighter or other governmental employee who operates an ambulance or responds to emergency medical calls to preventative immunization for a disease to which the employee may be exposed in performing official duties and for which immunization is possible. Effective Date September 1, 2019. 

• Senate Bill 1742

The enacted legislation amends multiple sections of the labor code and the insurance code affecting utilization review for workers’ compensation in the state of Texas. In regards to the labor code it amends 408.003 by requiring a person described by Subsection (a)(1), (2), or (3), (relating to doctors performing certain reviews) who reviews the service with respect to a specific workers' compensation case, notwithstanding Subsection (b) (relating to requiring a reviewer to hold appropriate certifications), if a health care service is requested, ordered, provided, or to be provided by a physician, to be of the same or a similar specialty as that physician. Amends insurance code 1305.351 by authorizing a utilization review agent or an insurance carrier that uses doctors to perform reviews of health care services provided under this chapter (Workers' Compensation Health Care Networks), including utilization review, or peer reviews under Section 408.0231(g) (relating to requiring the commissioner of insurance to adopt rules regarding doctors who perform peer review functions for insurance carriers), Labor Code, to only use doctors licensed to practice in this state, rather than authorizing, notwithstanding Section 4201.152 (Utilization Review Under Direction of Physician), a utilization review agent or an insurance carrier that uses doctors to perform reviews of health care services provided under this chapter, including utilization review, or peer reviews under Section 408.0231(g), Labor Code, to only use doctors licensed to practice in this state.  Amends insurance code 1305.355 by authorizing Authorizes an independent review organization that uses doctors to perform reviews of health care services under this chapter, rather than authorizing, notwithstanding Section 4202.002 (Adoption of Standards For Independent Review Organizations), an independent review organization that uses doctors to perform reviews of health care services under this chapter, to only use doctors licensed to practice in this state. Amends labor code 408.023 by authorizing a utilization review agent or an insurance carrier that uses doctors to perform reviews of health care services provided under this subtitle (Texas Workers' Compensation Act), including utilization review, rather than authorizing, notwithstanding Section 4201.152, Insurance Code, a utilization review agent or an insurance carrier that uses doctors to perform reviews of health care services provided under this subtitle, including utilization review, to only use doctors licensed to practice in this state.  Amends labor code 413.031 by authorizing an independent review organization that uses doctors to perform reviews of health care services provided under this title (Workers' Compensation), rather than authorizing, notwithstanding Section 4202.002, Insurance Code, an independent review organization that uses doctors to perform reviews of health care services provided under this title, to only use doctors licensed to practice in this state.  Effective Date September 1, 2019.

REGULATORY ACTIVITY:

• On May 8, 2019, the Texas Department of Insurance, Division of Workers’ Compensation (DWC) solicited and received constructive input from workers’ compensation system participants on the proposed Physical Medicine and Rehabilitation Services Plan-Based Audit (Plan-Based Audit). DWC appreciates the input provided by system participants. All comments were carefully considered and discussed. The commissioner of workers’ compensation approved the Plan-Based Audit on May 29, 2019.  All medical quality reviews initiated on or after January 1, 2019, will follow the approved Medical Quality Review Process (Process) in effect. The Process and Plan-Based Audit are posted on the TDI website at:  tdi.texas.gov/wc/hcprovider/medadvisor.html.  If you have any questions regarding this memo, contact Mary Landrum at 512-804-4814 or Mary.Landrum@tdi.texas.gov.  A copy of this announcement can be viewed at https://www.tdi.texas.gov/alert/whatsnew/index.html.
• The Texas Department of Insurance, Division of Workers’ Compensation (DWC) is accepting comments on an informal working draft of rules for 28 Texas Administrative Code §134.150 and §134.155 to implement Senate Bill (SB) 935, 86th Legislature (2019). Rule 134.150 describes the process for reimbursement of services provided by a federal military treatment facility (FMTF), and Rule 134.155 describes procedures for resolving disputes over charges by an FMTF.  SB 935 requires DWC to adopt rules necessary to implement Labor Code §413.0112 no later than December 1, 2019. The rules will establish requirements for processing medical bills for services provided to an injured employee by an FMTF, as well as a separate medical dispute resolution process to resolve charges billed directly to an injured employee by an FMTF. The change in law made by SB 935 applies to health care services provided to an injured employee on or after January 1, 2020, regardless of the date of injury.  To view this notice, go to https://tdi.texas.gov/wc/rules/drafts.html.

REGULATORY ACTIVITY:

• TDI has approved changes in requirements for withdrawal by a certified self-insurer from workers' compensation self-insurance in these National Council on Compensation Insurance (NCCI) publications: Basic Manual for Workers’ Compensation and Employers Liability Insurance; Experience Rating Plan Manual for Workers’ Compensation and Employers Liability Insurance; and Statistical Plan for Workers’ Compensation and Employers Liability Insurance The changes apply to new and renewal workers' compensation policies effective on and after May 1, 2019. For more information, please contact the Office of the Chief Clerk by email or call 512-676-6585.
• TDI has adopted a 15 percent overall reduction in the workers' compensation classification relativities for all policies with an effective date on or after July 1, 2019, unless the insurer files an alternative rate basis. Please visit the TDI website for more information and filing instructions. The announcement was contained in Bullet B-0001-19 issued April 26, 2019.  To view the bulletin, go to https://www.tdi.texas.gov/bulletins/index.html.
• Published a request for input for Development of Physical Medicine and Rehabilitation Services Plan - Based Audit.  To view the notice, go to https://www.tdi.texas.gov/alert/whatsnew/index.html.  To view a copy of the proposed plan, go to https://www.tdi.texas.gov/wc/hcprovider/medadvisor.html#comprev.

REGULATORY ACTIVITY:

• The Texas Department of Insurance, Division of Workers' Compensation (DWC) will review all sections within the “Old Law” chapters, Chapters 41-69, of Title 28, Part 2 of the Texas Administrative Code (TAC), in accordance with Texas Government Code § 2001.039. Accordingly, DWC is accepting public comments on whether the rules within the “Old Law” chapters, 28 TAC Chapters 41 – 69, still have reason to exist and whether these rules should be repealed, readopted, or readopted with amendments as required for rule review under Texas Government Code § 2001.039. DWC is specifically requesting comments as to whether 28 TAC § 42.105 (DWC, Medical Fee Guideline) should be updated to reference the current requirements of 28 TAC § 134.201 (DWC, Medical Fee Guideline for Medical Treatments and Services Provided under the Texas Workers' Compensation Act).  To comment on this rule review project, you must submit written comments by 5 p.m., Central time, on May 6, 2019. Comments received after that date will not be considered. Send written comments or hearing requests by email to rulecomments@tdi.texas.gov or by mail to: Texas Department of Insurance, Division of Workers' Compensation Cynthia Guillen Office of Workers' Compensation Counsel MS – 4D 7551 Metro Center Drive, Suite 100 Austin, Texas 78744-1645 Any repeals or necessary amendments identified during the review of these rules will be proposed and published in the Texas Register in accordance with the Administrative Procedures Act, Texas Government Code Chapter 2001.  To view this notice, go to https://www.tdi.texas.gov/alert/whatsnew/index.html.

FEE SCHEDULE NEWS:

• New Home Health and Dental modules have been published with an effective date of April 1, 2019. The next update is expected in July 2019.

REGULATORY ACTIVITY:

• Posted the Designated Doctor Performance Review Procedure on the state's web site. The Commissioner of Workers’ Compensation has adopted a revised procedure for evaluating designated doctor performance effective immediately.   The evaluation procedure provides for the review of the quality of designated doctor decisions, as required by law. The Division of Workers’ Compensation (DWC) may take necessary action to deny renewal of a designated doctor's certification based on the integrity of these decisions. The evaluation procedure will also help DWC increase training and testing quality by identifying areas for designated doctor performance improvement.  Information about the evaluation procedure, including selection criteria, is available at tdi.texas.gov/wc/hcprovider/medadvisor.html.   If you have questions, contact Mary Landrum at 512-804-4814 or Mary.Landrum@tdi.texas.gov.  To view the notice and procedure, go to https://www.tdi.texas.gov/wc/hcprovider/medadvisor.html.
• The Texas Department of Insurance, Division of Workers' Compensation has determined that any interest or discount provided for in the Texas Workers' Compensation Act shall be at the rate of 6.02 percent. The rate shall be effective April 1, 2019, through June 30, 2019. The rate is computed by using the treasury constant maturity rate for one-year treasury bills issued by the United States Government, as published by the Federal Reserve Board for March 17, 2019, plus 3.5 percent. For more information regarding calculation of the Discount Rate and Interest Rate, contact CompConnection at 800-252-7031, option 3. Issued in Austin, Texas, on March 19, 2019. To view this notice, go to https://www.tdi.texas.gov/alert/whatsnew/index.html.

REGULATORY ACTIVITY:

• The Texas Department of Insurance, Division of Workers’ Compensation (DWC) seeks informal input about revisions to the designated doctor performance review process. The purpose of the evaluation process is to ensure the quality of designated doctor decisions as required by Texas Labor Code §413.002. Changes to the process include:
  • modifying the threshold for the performance review factor “reports not adopted at a contested  case    hearing”;
  • reducing the number of randomly selected reports included in a performance review; and
  • other non-substantive changes to conform to new style standards.

DWC may take necessary action to deny renewal of a designated doctor's certification based on the outcome of the review, as provided by Texas Labor Code §408.1225(b) and DWC rule 28 Texas Administrative Code §127.110.  These proposed changes will not affect the procedural rights of a designated doctor. The results of the review process helps DWC improve the quality of training and testing by identifying areas for improvement in the designated doctor program.

• Proposed revisions to the process can be seen at tdi.texas.gov/wc/hcprovider/medadvisor.html. The Commissioner of Workers’ Compensation will evaluate any informal input provided. Workers’ compensation system participants may submit input to OMA@tdi.texas.gov by 5 p.m. Central time on Tuesday, February 26, 2019. If you have any questions, contact Mary Landrum at 512-804-4814 or Mary.Landrum@tdi.texas.gov.   To view this announcement, go to https://www.tdi.texas.gov/alert/whatsnew/index.html.
• TDI has posted notice of a filing by the National Council on Compensation Insurance (NCCI) related to proposed changes in NCCI’s Basic Manual for Workers’ Compensation and Employers Liability Insurance. The filing proposes that the changes in Item 01-TX-2018 apply to new and renewal workers’ compensation policies effective on and after March 1, 2019.  For more information, please contact the Office of the Chief Clerk by email or call 512-676-6585.  To view the manual changes, go to https://www.tdi.texas.gov/rules/2018/nccimanual.html.

FEE SCHEDULE NEWS:

• New Home Health and Dental modules have been adopted with an effective date of January 1, 2019. The next update is expected in April 2019.

REGULATORY ACTIVITY:

• The Texas Department of Insurance, Division of Workers' Compensation has determined that any interest or discount provided for in the Texas Workers' Compensation Act shall be at the rate of 6.16 percent. The rate shall be effective January 1, 2019, through March 31, 2019.  The rate is computed by using the treasury constant maturity rate for one-year treasury bills issued by the United States Government, as published by the Federal Reserve Board for December 17, 2018, plus 3.5 percent. Texas Labor Code §401.023. For more information regarding calculation of the Discount Rate and Interest Rate, contact CompConnection at 800-252-7031, option 3. Issued in Austin, Texas, on December 20, 2018.
• Texas adoption amendments to 28 TAC §§7, 116.11, 133.308, 140.1, 140.8, 141.2, 142.2 - 142.5, 142.7, 142.8, 142.10 - 142.16, 142.18, 142.20, 143.1 - 143.5, 152.3, 152.6, and new §140. On December 17, 2018, Commissioner of Workers’ Compensation Cassie Brown adopted amendments to the above-referenced sections of Title 28, Part 2 of the Texas Administrative Code (TAC).  The commissioner also adopted new 28 TAC §140.9.  The adoption was filed with the Office of the Secretary of State on December 18, 2018.  These rules took effect on January 7, 2019.  The rules will apply to all activity in a proceeding that occurs on or after the effective date.  The adoption was published in the January 4, 2019, issue of the Texas Register and may be viewed on the Secretary of State website at http://www.sos.state.tx.us/texreg/index.shtml.  A courtesy copy of the adoption is available on the Texas Department of Insurance website at https://www.tdi.texas.gov/wc/rules/2018rules.html.  To view a copy of the notice, go to https://www.tdi.texas.gov/alert/whatsnew/index.html.
• On December 14, 2018, Commissioner of Workers' Compensation Cassie Brown adopted amendments to 28 Texas Administrative Code (TAC) Chapter 114, Self-Insurance. The adopted amendments to 28 TAC §§1-114.15 and a new §114.16 were filed with the Office of the Secretary of State on December 17, 2018, and were published in the January 4, 2019, issue of the Texas Register. The adopted amendments may be viewed on the Secretary of State’s website at ww.sos.state.tx.us/texreg/index.shtml. A courtesy copy of the adoption is available on the Texas Department of Insurance (TDI) website at www.tdi.texas.gov/wc/rules/2018rules.html. The amendments to 28 TAC Chapter 114 implement House Bill (HB) 1989, 85th Legislature, Regular Session, by amending the definition of certified self-insurer, describing the TDI endorsement of the standard workers’ compensation policy required to withdraw from self-insurance with an insuring agreement, and providing the standards required of an insurance carrier seeking to assume workers’ compensation liabilities from a certified self-insurer withdrawing with an insuring agreement. The adopted new section also includes an affirmation of the commissioner’s discretion to review previously approved certified self-insurer withdrawals and, notwithstanding 28 TAC §114.4, modify the security deposit obligations.   To view the notice, go to https://www.tdi.texas.gov/alert/whatsnew/index.html.
• On December 20, 2018, Commissioner of Workers' Compensation Cassie Brown adopted amendments to 28 Texas Administrative Code (TAC) §148.17, Special Provisions for Sanctions. The amendments were filed with the Office of the Secretary of State on December 20, 2018, and were published in the January 11, 2019, issue of the Texas Register. The adopted amendments may be viewed on the Secretary of State’s website at sos.state.tx.us/texreg/index.shtml. A courtesy copy of the adoption is available on the Texas Department of Insurance website at www.tdi.texas.gov/wc/rules/2018rules.html. The amendments to 28 TAC §148.17:
  • Retitle and amend the rule to apply to all administrative sanctions, including monetary penalties.
  • Delete the requirement for paying the penalty or posting a bond in order to seek judicial review.
  • Provide for other forms of payment of penalties, as approved by DWC.

These went into effect January 9, 2019.  To view the notice, go to https://www.tdi.texas.gov/alert/whatsnew/index.html.

• On December 20, 2018, Commissioner of Workers’ Compensation Cassie Brown adopted with changes amendments to 28 Texas Administrative Code (TAC) §180.8, Notices of Violation; Notices of Hearing; Default Judgments and 28 TAC §180.26, Criteria for Imposing, Recommending and Determining Sanctions; Other Remedies. The adopted amendments were filed with the Office of the Secretary of State on December 27, 2018, and were published in the January 11, 2019, issue of the Texas Register at sos.state.tx.us/texreg/index.shtml. A courtesy copy is available on the TDI website at www.tdi.texas.gov/wc/rules/2018rules.html.  To view the notice, go to https://www.tdi.texas.gov/alert/whatsnew/index.html.
• On November 16, 2018, the Texas Department of Insurance, Division of Workers’ Compensation (DWC) solicited input from workers’ compensation system participants regarding a potential category for the 2019 Medical Quality Review Annual Audit Plan (Annual Plan). DWC appreciates the input provided by system participants. All comments were carefully considered and discussed. The Commissioner of Workers’ Compensation Cassie Brown approved the Annual Audit Plan on January 11, 2019, as proposed. The Annual Plan sets the priorities for the Medical Quality Review Panel (MQRP) audits during the upcoming year per Section IV of the Annual Plan. This includes the scope, methodology, selection criteria, and program area responsibilities described in the Medical Quality Review Process (Process).  Information about the Process and the Annual Plan is available on the TDI website at tdi.texas.gov/wc/hcprovider/medadvisor.html. All medical quality reviews initiated on or after January 1, 2019, will be performed in accordance with the approved Process.
  If you have any questions regarding this memo, contact Mary Landrum at 512-804-4814 or mary.landrum@tdi.texas.gov.   To view the notice, go to https://www.tdi.texas.gov/alert/whatsnew/index.html.  To view the audit plan, go to https://www.tdi.texas.gov/wc/hcprovider/medadvisor.html.

REGULATORY ACTIVITY:

• Issued the Biennial Report of the Texas Department of Insurance to the 86th Legislature - Division of Workers' Compensation. To view this notice, go to https://www.tdi.texas.gov/alert/whatsnew/index.html.
• Issued notice regarding adoption of the 28 Texas Administrative Code Section 132.7.The Texas Department of Insurance, Division of Workers' Compensation (DWC) has adopted an amendment to 28 TAC §132.7, relating to duration of death benefits for an eligible spouse. The amendment aligns §132.7 with Texas Labor Code §408.183, as amended by House Bill (HB) 2119 of the 85th Legislature. HB 2119 amended Labor Code §408.183 to allow eligible spouses of first responders to remain eligible for death benefits for life after remarrying, if the first responder died as a result of an injury in the course and scope of employment or while providing services as a volunteer, regardless of the date on which the death of the first responder occurred.  The change to §408.183 applies only to eligible spouses who remarried on or after September 1, 2017.  Amended §132.7(f) deletes the words, “This subsection only applies to claims based on a compensable injury that occurs on or after September 1, 2015,” and adds the following words and new language, “This subsection applies to: (1) eligible spouses who remarry on or after September 1, 2017; and (2) eligible spouses who remarried between September 1, 2015, and August 31, 2017, if the claim is based on a compensable injury that occurred on or after September 1, 2015.”   The amendment does not alter the distribution of death benefits under §132.11 or the redistribution of death benefits under §132.12. If there is an eligible child or grandchild and an eligible spouse, death benefits continue to be divided between the beneficiaries, with half paid to the eligible spouse and half paid in equal shares to the eligible children.  The adoption was published in the December 14, 2018, issue of the Texas Register and will be available at www.sos.state.tx.us/texreg/index.shtml once published. A courtesy copy will also be available on the TDI website at tdi.texas.gov/wc/rules/2018rules.html.
• The commissioner of workers’ compensation adopts the following Fiscal Year 2019 Research Agenda for the Workers’ Compensation Research and Evaluation Group (REG):
  • Completion and publication of the thirteenth edition of the Workers’ Compensation Health Care Network Report Card (required in 2019 under Texas Insurance Code §1305.502(a)-(d) and Texas Labor Code §405.0025(b)).
  • An update of return-to-work outcomes for injured employees in the Texas workers’ compensation system (Labor Code §405.0025(a)(4)).
  • An annual update of medical costs and utilization in the Texas workers’ compensation system, including an analysis on the impact of the Texas pharmacy closed formulary on compounded drugs (Labor Code §405.0025(a)(5)).
  • A baseline evaluation of medical services provided through telemedicine in the Texas workers’ compensation system, including medical utilization and costs of Medicare-approved services (Labor Code §405.0025(a)(5)).
• Under Labor Code §405.0025, the REG is charged with conducting professional studies and research related to:
  • 1) the delivery of benefits;
  • 2) litigation and controversy related to workers’ compensation;
  • 3) insurance rates and ratemaking procedures;
  • 4) rehabilitation and reemployment of injured employees;
  • 5) the quality and cost of medical benefits;
  • 6) employer participation in the workers’ compensation system;
  • 7) employment health and safety issues; and
  • 8) other matters relevant to the cost, quality, and operational effectiveness of the workers’ compensation system.

To view the notice, go to  https://www.tdi.texas.gov/alert/whatsnew/index.html.  

• The Texas Department of Insurance, Division of Workers' Compensation (DWC) has released the 2018 Insurance Carrier Performance Based Oversight (PBO) assessment. For 2018, insurance carriers were assessed on their performance for timeliness in the following categories: paying initial temporary income benefits; processing initial medical bills; processing requests for reconsideration of medical bills; submitting initial payment data by electronic data interchange (EDI); and submitting medical bill processing data by EDI. DWC reviewed 121 insurance carriers with the following results: 55 had scores placing them in the high performer tier, 65 were in the average performer tier, and one had a score placing them in the poor performer tier. The 2018 PBO assessment results and a list of the insurance carriers that were reviewed are posted on the Texas Department of Insurance (TDI) website at: tdi.texas.gov/wc/pbo/pboresults.html. If an insurance carrier is not listed, it was not assessed in 2018; however, no insurance carrier in the Texas workers' compensation system is exempt from compliance with the Texas Labor Code and DWC rules.  More information on PBO and the 2018 assessment is available on the TDI website at www.tdi.texas.gov/wc/pbo/icpbo.html. DWC will assess health care providers separately in 2019. To view the above information, go to https://www.tdi.texas.gov/news/2018/dwc12122018.html.