FEE SCHEDULE NEWS:

• The Texas Department of Insurance, Division of Workers’ Compensation (DWC) has released the new conversion factors for the medical fee schedule effective January 1, 2019. The next update is expected in January 2020.

REGULATORY ACTIVITY:

• The Texas Department of Insurance, Division of Workers' Compensation (DWC) is withdrawing the prior amendments to 28 Texas Administrative Code (TAC) §180.26 and §180.8 published on May 18, 2018 (43 TexReg 3226) and, in response to the comments received, proposes new amendments to those rules for public comment. DWC will hold a public hearing on these amendments on November 16, 2018, at 10 a.m. in the Tippy Foster Room at the DWC Central Office located at 7551 Metro Center Drive, Suite 100, in Austin.  Written comments and public testimony presented at the hearing will be considered. The proposal was published in the November 2, 2018 issue of the Texas Register and is available at sos.state.tx.us/texreg/index.shtml once published. A courtesy copy is also available on the TDI website at www.tdi.texas.gov/wc/rules/2018rules.html.  DWC proposes these amendments to implement Senate Bill (SB) 1895, 85th Legislature, Regular Session.  SB 1895 revised Texas Labor Code §415.021(c) by requiring the commissioner to consider whether the administrative violation has negative impact on the delivery of benefits to an injured employee and the history of compliance with electronic data interchange requirements (EDI). SB 1895 also added Texas Labor Code § 415.021(c-1) which requires the commissioner to adopt rules to communicate to the person information about the penalty, including: (1) the relevant statute or rule violated; (2) the conduct that gave rise to the violation; and (3) the factors considered in determining the penalty. By including the factors considered in determining the penalty, the proposed amendments necessarily provide for the communication required by SB 1895 when assessing an administrative penalty.  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) is proposing five new forms to help insurance carriers submit requests for reimbursement from the Subsequent Injury Fund (SIF). Use of these forms will be voluntary.  The forms are designed to help meet filing requirements under 28 Texas Administrative Code §116.11 and are expected to help expedite an insurance carrier’s request for reimbursement by reducing requests from DWC for additional information.
  • DWC Form-095 can be used to file for reimbursement of unrecoupable overpayments due to the decision of a hearing officer, the appeals panel, or an interlocutory order that is reversed or modified by final arbitration, order, or decision.
  • DWC Form-096 can be used to file for reimbursement of death benefits paid to the SIF prior to identifying a legal beneficiary entitled to receive death benefits.
  • DWC Form-097 can be used to file for reimbursement of income benefits paid as a result of an injured employee’s multiple employment.
  • DWC Form-098 can be used to file for reimbursement of unrecoupable overpayments due to a designated doctor opinion that is reversed or modified by a final arbitration award, a final order, or a commissioner or court decision.
  • DWC Form-099 can be used to file for reimbursement of payments resulting from initial pharmaceutical coverage after a determination that the injury is not compensable.

These forms are available for review on the TDI website at www.tdi.texas.gov/wc/rules/drafts.html.

• The Texas Department of Insurance, Division of Workers’ Compensation (DWC) is accepting public comments on proposed amendments to the above-identified rules and proposed new 28 Texas Administrative Code (TAC) §140.9. The purpose of the proposal is to:
  • Harmonize DWC rules with legislative changes made in House Bill 2111 (85th Legislature, Regular Session) by replacing “hearing officer” and “hearings officer” with “administrative law judge.”
  • Delete obsolete rule text, replace “commission” with “division,” correct typographical errors, designate several new abbreviations, and clarify that a request for a hearing subpoena must be delivered to the parties, including any potential legal beneficiaries.
  • Create new 28 TAC §140.9, which requires carriers, carrier representatives, claimants represented by an attorney, and claimants assisted by the Office of Injured Employee Counsel (OIEC) to include with any requests to a presiding officer a signed statement that the requesting party made reasonable efforts to confer with other parties about the request.  Section 140.9 also establishes timeframes for responding to requests but provides presiding officers with latitude to consider requests or responses that are not timely filed.  Claimants neither represented by an attorney nor assisted by OIEC may request to continue a proceeding by contacting DWC in any manner.
  • Amend 28 TAC §141.2 to clarify that there is only one “first request” to reschedule a benefit review conference (BRC) that need not demonstrate good cause. The clarification is necessary to give notice that both parties do not have a “first request.”  The rule also provides that requests to cancel or reschedule a BRC must be sent to DWC and opposing parties no later than five days before the scheduled BRC. Parties opposing such requests must file written opposition with DWC within three days of receiving the cancellation or rescheduling request. Claimants neither represented by an attorney nor assisted by OIEC may request to cancel or reschedule a BRC by contacting DWC in any manner.
  • Amend 28 TAC §142.10 to require parties to comply with new §140.9 and state that claimants neither represented by an attorney nor assisted by OIEC may request to continue a hearing by contacting DWC in any manner.
  • Amend 28 TAC §142.11 to require administrative law judges (ALJs) to send notice to a party that fails to attend a scheduled contested case hearing that the non-attending party, within 10 days of receipt of the notice, must show good cause for failing to attend. Replies to the non-attending party’s response are due within three days of receipt of the response. If the ALJ does not find good cause, or the non-attending party does not respond to the notice, the ALJ shall issue a decision based on the evidence presented at the hearing and may recommend the issuance of an administrative violation.
  • Amend 28 TAC §§5, 142.7, and 142.12 to be consistent with proposed new §140.9 on the treatment of claimants neither represented by an attorney nor assisted by OIEC.
  • Amend 28 TAC §142.4 to be consistent with proposed new §140.9 as regards the delivery of copies of documents to other parties to a proceeding.

 In addition, until 5 p.m. central time on December 3, 2018, the DWC is accepting public comment on revisions to DWC Form-045, Request to Schedule, Reschedule, or Cancel a Benefit Review Conference (BRC), or to Proceed Directly to Contested Case Hearing (CCH) and DWC Form-045M, Request to Schedule, Reschedule, or Cancel a Benefit Review Conference to Appeal a Medical Fee Dispute Decision (BRC-MFD). The proposed revisions to DWC Form-045 and DWC Form-045M will make the form consistent with the proposed amendments to chapters 140 and 141, updates contact information, and conforms to current agency style. If a hearing is held, DWC will consider written comments and public testimony presented at the hearing.

• On October 23, 2018, Commissioner of Workers' Compensation Cassie Brown proposed amendments to 28 Texas Administrative Code (TAC) §148.17, Special Provisions for Sanctions. The proposed amendments were filed with the Office of the Secretary of State on October 23, 2018, and were to be published in the November 9, 2018, issue of the Texas Register. When published, the adopted amendments may be viewed on the Secretary of State’s website at www.sos.state.tx.us/texreg/index.shtml. A courtesy copy of the adoption is available on the Texas Department of Insurance website at tdi.texas.gov/wc/rules/2018rules.html.  The amendments to 28 TAC §148.17 would:
  • 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, as approved by DWC.

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

• Published the Texas Workplace Injury, Illness Rate Reported for 2017.  To view the report, go to https://www.tdi.texas.gov/wc/safety/sis/nonfatalhomepag.html#Y2017.
• New changes to the Medical Fee Guideline conversion factors established by 28 Texas Administrative Code §134.203 have been published. Under Labor Code §413.011(a), fee guidelines adopted by the Division of Workers’ Compensation (DWC) for non-network services and approved out-of-network services are based on the most current reimbursement methodologies, models, and values or weights used by the federal Centers for Medicare and Medicaid Services. DWC established a conversion factor and an annual update to provide predictability and reflect changes in medical service delivery costs to system participants. The annual update is based on the Medicare Economic Index (MEI), which is a weighted average of price changes for goods and services used to deliver physician services. The MEI for 2019 reflects an increase of 1.5 percent. For services provided in calendar year 2019, the new Medical Fee Guideline conversion factors are $59.19 and $74.29. The conversion factor of $59.19 applies to service categories of evaluation and management, general medicine, physical medicine and rehabilitation, radiology, pathology, anesthesia, and surgery when performed in an office setting. The conversion factor of $74.29 applies to surgery when performed in a facility setting. If there are any questions about the information in this bulletin, call Comp Connection for Health Care Providers at 1-800-372-7713.  To view the bulletin, go to https://www.tdi.texas.gov/bulletins/index.html.

REGULATORY ACTIVITY:

• The Texas Department of Insurance, Division of Workers’ Compensation (DWC) is accepting comment on the proposed Fiscal Year 2019 Research Agenda of the Workers’ Compensation Research and Evaluation Group (REG).  Texas Labor Code §405.0026 requires the REG to publish a proposed research agenda annually in the Texas Register for commissioner review and approval.  Under Texas Labor Code §405.0026, the commissioner must accept public comments on the proposed research agenda and hold a public hearing on the research agenda if a hearing is requested. Under Texas 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.
• Commissioner of Workers’ Compensation Cassie Brown announced Debra Knight as the new Deputy Commissioner of Compliance and Investigations.  This program area at the Division of Workers’ Compensation (DWC) monitors compliance and investigates fraud and administrative violations. It is also responsible for enforcement efforts, and criminal prosecutions through DWC’s embedded prosecutor unit in the Travis County District Attorney’s office. Knight is an accomplished attorney with 22 years of experience.  She has been with the Texas Department of Insurance since 2013 where she was director for the Policy Development Counsel, and most recently Associate Commissioner for Legal.  Knight has a Bachelor of Science degree from the University of Houston and a juris doctorate from the South Texas College of Law. During her career, Knight served in the United States Army Reserve, doing tours in Iraq and Ethiopia and retiring with the rank of Lieutenant Colonel. Knight’s new role with DWC begins November 1.
• The Texas Department of Insurance, Division of Workers' Compensation (DWC) is accepting public comments on a proposed amendment to 28 TAC §132.7, relating to duration of death benefits for eligible spouse. The proposed amendment implements House Bill (HB) 2119 of the 85th Legislature. HB 2119 amended Texas 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.  Amended 28 TAC §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 amendments do not alter the distribution of death benefits under 28 TAC §132.11 or the redistribution of death benefits under 28 TAC §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 proposal was to be published in the October 12, 2018, issue of the Texas Register and will be available at sos.state.tx.us/texreg/index.shtml once published. A courtesy copy will also be available on the TDI website at www.tdi.texas.gov/wc/rules/2018rules.html. If you want to comment on the proposal or request a public hearing, submit your written comments and or request by 5 p.m. Central time on November 12, 2018. 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 Ashley Hyten Workers' Compensation Counsel MS – 4D 7551 Metro Center Drive, Suite 100 Austin, Texas 78744-1645.  If a hearing is held, DWC will consider written comments and public testimony presented at the hearing. To view the notice, go to https://www.tdi.texas.gov/alert/whatsnew/index.html.  To view the proposed rule, go to https://www.tdi.texas.gov/wc/rules/2018rules.html.
• On July 30, 2018, the Texas Department of Insurance, Division of Workers’ Compensation (DWC) solicited and received constructive input from workers’ compensation system participants on the proposed Neuromuscular Testing 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 Cassie Brown approved the Plan-Based Audit on October 11, 2018.  All medical quality reviews initiated on or after January 1, 2018, 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.
• Posted notice in the state register regarding proposed amendments to Chapter 132 Death Benefits-Death and Burial Benefits. To view the proposed rule, go to https://www.sos.state.tx.us/texreg/sos/index.html.
• On October 11, 2018, Commissioner of Workers' Compensation Cassie Brown adopted amendments to 28 Texas Administrative Code (TAC) §134.600, Preauthorization, Concurrent Utilization Review, and Voluntary Certification of Health Care. The adopted amendments were filed with the Office of the Secretary of State on October 12, 2018, and will be published in the October 26, 2018, issue of the Texas Register. When published, 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 §134.600 remove references to the preauthorization exemption for Commission on Accreditation of Rehabilitation Facilities (CARF) accredited programs related to work conditioning (WC) and work hardening (WH) services. These amendments are in response to the amendment of Texas Labor Code §413.014, Preauthorization Requirements; Concurrent Review and Certification of Health Care, by Senate Bill 1494, 85th Legislature, Regular Session.  As amended, Labor Code §413.014(c)(2) now requires preauthorization and concurrent review of all WC and WH services and grants the commissioner discretion to exempt from preauthorization and concurrent review WC and WH services “provided by a health care facility credentialed by an organization designated by commissioner rule.” These amendments exercise that discretion by not designating a credentialing organization for preauthorization exemption.  As part of this rulemaking, DWC had also proposed amendments to 28 TAC §134.230, Return to Work Rehabilitation Program, relating to fees for WC and WH services. In response to comments, DWC is formally withdrawing those proposed amendments at this time. DWC will evaluate the fee schedule for WC and WH services in the future to ensure that the fees are fair, reasonable, and designed to not only ensure quality medical care but to also achieve medical cost control.  

FEE SCHEDULE NEWS:

• A new update to Texas Home Health and Dental Codes has been adopted with an effective date of September 1, 2018.

REGULATORY ACTIVITY:

• The Texas Department of Insurance, Division of Workers' Compensation (DWC) is accepting public comments on proposed amendments to 28 TAC and the proposed adoption of 28 TAC §114.16. The proposed amendments to and new rule in Chapter 114 implement House Bill (HB) 1989 of the 85th legislative session. HB 1989 amended Texas Labor Code §407.045 to add §407.045(a-1) which provides that an adequate program required for withdrawal from certified self-insurance includes a program in which all workers’ compensation obligations have been insured or reinsured with an authorized insurer. Proposed 28 TAC §114.2(b)(3) amends the definition of certified self-insurer (CSI) to exclude CSIs that have withdrawn with an insuring agreement pursuant to Labor Code §407.045(a-1). New rule 28 TAC §114.16, regarding withdrawals from self-insurance, defines the elements of an insuring agreement and the standards required of an insurance carrier seeking to assume workers’ compensation liabilities from a CSI withdrawing with an insuring agreement; and, allows the commissioner to review and approve modifications of previously approved withdrawals from self-insurance, including security deposit modifications. There are also non-substantive amendments throughout Chapter 114 to enhance clarity and to update the rule to reflect current regulatory structure, and agency drafting style.  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/2018rules.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 6.06 percent. The rate shall be effective October 1, 2018, through December 31, 2018.  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 September 16, 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 September 21, 2018.
• The workers’ compensation state average weekly wage for dates of injury from October 1, 2018, through September 30, 2019, is set at $937.70. The maximum weekly benefit rates for workers’ compensation income benefits is set at $938 and the minimum weekly benefit rate is set at $141 for that period. The maximum and minimum weekly benefit rates for dates of injury from October 1, 2017, through September 30, 2018, were $913 and $137 respectively. In accordance with Texas Labor Code §408.047, the workers’ compensation state average weekly wage is equal to 88 percent of the average weekly wage in covered employment as computed each year by the Texas Workforce Commission under Labor Code §207.002(c). A table showing maximum and minimum weekly benefit amounts for injuries that occurred on or after January 1, 1991, is available on the Texas Department of Insurance website.

REGULATORY ACTIVITY:

• The Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) asks for input on the development of a Neuromuscular Testing Referrals Plan-Based Audit.  The audit will assess if a health care provider’s decision to order neuromuscular testing was appropriate, medically necessary, and supported by recordkeeping. The audit sets the scope, methodology, selection standards, and program area duties as laid out in the Medical Quality Review Process. A copy of the proposed audit is available on the TDI website at tdi.texas.gov/wc/hcprovider/medadvisor.html.  The Medical Advisor approved a Neuromuscular Testing Referrals Plan-Based Audit plan as part of the CY 2018 Medical Quality Review Annual Audit Plan, which is available on the TDI website at http://www.tdi.texas.gov/wc/hcprovider/documents/auditplan18.pdf.
• On July 26, 2018, Commissioner of Workers’ Compensation Cassie Brown adopted the repeal of 28 TAC §108.1, Charges for Copies of Public Information. The adoption was filed with the Office of the Secretary of State on August 13, 2018. The adoption was published in the August 24, 2018, issue of the Texas Register and may be viewed on the Secretary of State 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 repeal of 28 TAC §108.1 is necessary because other statutes and rules currently govern charges for public information.   To view notice as published in the Texas Register, go to http://www.sos.state.tx.us/texreg/archive/August242018/Adopted%20Rules/28.INSURANCE.html#95

REGULATORY ACTIVITY:

• The Texas Department of Insurance, Division of Workers’ Compensation (DWC) reminds attorneys of the requirements to claim a fee for representing a party in the Texas workers’ compensation system.  Requirements: To claim a fee, an attorney representing any party must submit to the division a complete and accurate application for attorney fees in the form and manner prescribed by the division.  28 TAC §152.3(a).  The attorney must provide an itemized list of each legal service performed and expense incurred representing the claimant or insurance carrier that identifies the attorney or legal assistant who provided the service, the date the service was provided, and the hours or amount requested.  28 TAC §152.3(b)(7).  Each attorney must bill for hours using that attorney’s state bar card number.  28 TAC §152.4(e). In certifying an application for attorneys’ fees, the attorney certifies that every statement, numerical figure, and calculation is within the attorney’s personal knowledge, is true and correct, and represents the services, charges, and expenses provided by the attorney or a legal assistant under the attorney’s supervision.  28 TAC §152.3(b)(8).  Enforcement: DWC emphasizes that attorneys are subject to review for compliance with commissioner rules, the Texas Workers’ Compensation Act, and other laws under Labor Code Chapter 414. An order approving, partially approving, or denying an application for attorney fees does not limit the commissioner's authority to enforce a sanction, administrative penalty, or other remedy authorized by the Act. DWC may take appropriate enforcement action for failing to file an application for attorney fees in the form and manner prescribed by the division.  To view a copy of this notice, go to http://www.tdi.texas.gov/alert/whatsnew/index.html.
• The Texas Department of Insurance, Division of Workers’ Compensation (DWC) will hold a public hearing on Thursday, August 2, 2018, in the Tippy Foster Room at the DWC Central Office, 7551 Metro Center Drive, Suite 100 in Austin, Texas.  Streaming audio of the public hearing will be available at http://tdimss.tdi.texas.gov/tdi/tdi.asx.  The meeting will begin at 10 a.m. and DWC will receive comments on the following rules:
  • Amended 28 TAC §180.8.  Notices of Violations; Notices of Hearing; Default Judgments.
  • Amended 28 TAC §180.26.  Criteria for Imposing, Recommending and Determining Sanctions; Other Remedies.  The rule proposal was published in the May 18, 2018, issue of the Texas Register.  DWC has extended the comment period, which closes on August 2, 2018, at 5 p.m. CST.  DWC offers reasonable accommodations for persons attending meetings, hearings, or educational events, as required by the Americans with Disabilities Act.  If you require special accommodations, contact Maria Jimenez at (512) 8044703.

FEE SCHEDULE NEWS:

• The Texas Department of Insurance, Division of Workers' Compensation (TDI-DWC) adopted amendments to §134.500, 134.530 and 134.540 requiring preauthorization for drugs created through compounding with an effective date of July 1, 2018.

REGULATORY ACTIVITY:

• Just published regarding the publication of a new report by the Research and Evaluation Group of the Texas Department of Insurance entitled "Injured Employees with Multiple Injuries and Claims in the Texas Workers' Compensation System".  To view a copy, go to http://www.tdi.texas.gov/alert/whatsnew/index.html.
• The Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) held a public hearing on Monday, June 18, 2018 in the Tippy Foster Room at the TDI-DWC Central Office, 7551 Metro Center Drive, Suite 100 in Austin, Texas.  The purpose of the meeting was to receive comments on the following rules: Amended 28 TAC §127.1.  Requesting Designated Doctor Examinations. Amended 28 TAC §127.5.  Scheduling Designated Doctor Appointments. Amended 28 TAC §127.10.  General Procedures for Designated Doctor Examinations. Amended 28 TAC §127.100.  Designated Doctor Certification. Amended 28 TAC §127.110.  Designated Doctor Re-certification. Amended 28 TAC §127.130.  Qualifications Standards for Designated Doctor Examinations. Amended 28 TAC §127.140.  Disqualifying Associations. Amended 28 TAC §127.220.  Designated Doctor Reports.  To view the notice of public hearing, go to http://www.tdi.texas.gov/alert/whatsnew/index.html.
• Governor Greg Abbott has appointed Cassie Brown as Commissioner of Workers' Compensation at the Texas Department of Insurance (TDI) for a term set to expire on February 1, 2019. TDI's Division of Workers' Compensation regulates the workers' compensation system in Texas, ensuring injured workers receive the necessary benefits to quickly return to work, and that workers' compensation costs are kept at a reasonable level for Texas employers. Cassie Brown of Austin is deputy commissioner for Regulatory Policy at the Texas Department of Insurance, where she has served since 2011. Previously, she served as a policy advisor to Governor Rick Perry. Brown received a Bachelor of Arts in political science from St. Edward’s University and attended the Governor’s Executive Development Program at The University of Texas LBJ School of Public Affairs.
• Texas posted notice of proposed amendments t 28 TAC 180.26 and 180.8.  The Texas Department of Insurance, Division of Workers' Compensation (TDI-DWC) is accepting public comments on the proposed amended 28 Texas Administrative Code (TAC) §180.26 and §180.8. The public comment deadline has been extended to July 18, 2018.  If you want to comment on the proposal, submit your written comments by 5:00 p.m. Central time on July 18, 2018. A request for a public hearing must be sent separately from your written comments. 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 Maria Jimenez Workers' Compensation Counsel MS – 4D 7551 Metro Center Drive, Suite 100 Austin, Texas 78744-1645.  The proposal was published in the May 18, 2018 issue of the Texas Register and is available at sos.state.tx.us/texreg/index.shtml. A courtesy copy is also available on the TDI website at www.tdi.texas.gov/wc/rules/2018rules.html. The TDI-DWC proposes amendments to 28 TAC §180.26 and §180.8 to implement Senate Bill (SB) 1895, 85th Legislature, Regular Session.  SB 1895 revised Texas Labor Code §415.021(c) by requiring the commissioner to consider whether the administrative violation has negative impact on the delivery of benefits to an injured employee and the history of compliance with electronic data interchange requirements. SB 1895 also added Texas Labor Code § 415.021(c-1) which requires the commissioner to adopt rules to communicate to the person the subject of a penalty information about the penalty, including: (1) the relevant statute or rule violated; (2) the conduct that gave rise to the violation; and (3) the factors considered in determining the penalty. By including the factors considered in determining the penalty, the proposed amendments necessarily incorporate the additional factors required by SB 1895 when assessing an administrative penalty.  To view a copy of the notice, go to http://www.tdi.texas.gov/alert/whatsnew/index.html.  To view a copy of the rule, go to http://www.tdi.texas.gov/wc/rules/2018rules.html.

REGULATORY ACTIVITY:

• The Texas Department of Insurance, Division of Workers' Compensation (TDI-DWC) is accepting public comments on the proposed repeal of 28 Texas Administrative Code (TAC) §108.1.  If you want to comment on the proposal, submit your written comments by 5:00 p.m. Central time on June 04, 2018. A request for a public hearing must be sent separately from your written comments. 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 Maria Jimenez Workers' Compensation Counsel MS – 4D 7551 Metro Center Drive, Suite 100 Austin, Texas 78744-1645. If a hearing is held, TDI-DWC will consider written comments and public testimony presented at the hearing.
  The proposal was to be published in the May 4, 2018 issue of the Texas Register and would be available at sos.state.tx.us/texreg/index.shtml once published. A courtesy copy will also be available on the TDI website at www.tdi.texas.gov/wc/rules/proposedrules/index.html.
  The TDI-DWC proposes the repeal of 28 TAC §108.1 because the rule is outdated. Other statutes and rules currently govern charges for copies for public information.  To view the notice, go to http://www.tdi.texas.gov/alert/whatsnew/index.html.
• DWC has finalized the Opioids Plan -Based Audits.  On April 2, 2018, The Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) solicited and received constructive input from workers’ compensation system participants on the proposed Opioids Plan-Based Audit (Plan-Based Audit).  TDI-DWC appreciates the input provided by system participants.  All comments were carefully considered and discussed.  The Commissioner of Workers’ Compensation W. Ryan Brannan approved the Plan-Based Audit on April 30, 2018.  All medical quality reviews initiated on or after January 1, 2018, 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.
• The Texas Department of Insurance, Division of Workers' Compensation (TDI-DWC) is accepting public comments on proposed rules to amend 28 Texas Administrative Code (TAC) §134.230, regarding return to work rehabilitation programs and 28 TAC §134.600, regarding preauthorization, concurrent utilization review, and voluntary certification of health care.  Proposed amendments to 28 TAC §134.600 implement Senate Bill 1494 of the 85th Regular Legislative Session that amended Labor Code §413.014 regarding preauthorization and concurrent utilization review of work conditioning (WC) and work hardening (WH) services.  SB 1494 added subsection (c-1), which gives the commissioner discretion to exempt from preauthorization and concurrent review WC and WH services “provided by a health care facility credentialed by an organization designated by commissioner rule.”  Additionally, in September 2017, the Workers’ Compensation Research and Evaluation Group published an analysis of return to work rehabilitation programs by accreditation status and found that work conditioning utilization was significantly higher for CARF accredited claims and there was no statistical difference in the disability duration, measured by the length of Temporary Income Benefits, between CARF accredited and non-CARF accredited programs for WC and WH programs. The proposed amendment to §134.600 reflects the commissioner’s decision to exercise his discretion to not designate a credentialing organization for preauthorization exemption.  The proposed amendments would make it so that all WC and WH services must be per-authorized.  Proposed amendments to 28 TAC §134.230 set a single reimbursement rate for WC services and WH services, regardless of a program’s accreditation status.  The amendments to 28 TAC §134.230 are necessary to set a single reimbursement rate for WH or WC services.  Amendments to 28 TAC §134.230 also include several non-substantive changes for readability.  If you want to comment on the proposal, submit your written comments by 5:00 p.m. Central time on June 4, 2018.  A request for public hearing must be sent separately from your written comments. 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 Maria Jimenez Workers' Compensation Counsel MS – 4D 7551 Metro Center Drive, Suite 100 Austin, Texas 78744-16  To view the proposed rules, go to http://www.tdi.texas.gov/wc/rules/2018rules.html.
• Published in the state register proposed rules Designated Doctor Procedures and Requirements 28 TAC 127.1; 127.5; 127.10; 127.100; 127.110; 127.130; 127.140; and 127.220.  The division also posted proposed rules regarding Monitoring and Enforcement TAC 180.8 and 180.26.  To view the rules proposed at the state register site, go to http://www.sos.state.tx.us/texreg/sos/index.html.
• The department of Insurance has adopted amendments to rules regarding the licensing and regulation of insurance professionals.  The Texas Department of Insurance adopts amendments to 28 TAC §§801, 19.1003, 19.1004, 19.1010, 19.1013, 19.1016, 19.1019, 19.1310, and new §§19.803 - 19.810, concerning licensing and continuing education requirements of insurance professionals, including agents, adjusters, public insurance adjusters, managing general agents, risk managers, and home office salaried employees. The amendments and new sections are adopted with changes to the proposed text published in the March 9, 2018, issue of the Texas Register (43 TexReg 1391). TDI adopts amended §§19.1003, 19.1010, 19.1013, 19.1016, 19.1019, 19.1310, and new §§19.805 - 19.809 without changes to the proposed text. TDI revised §§19.801, 19.804, and 19.810 in response to public comments. TDI revised typographical errors in §19.803 and §19.1004.  The rules become effective May 31, 2018.  To view a copy of the adopted rules, go to  http://www.sos.state.tx.us/texreg/archive/May252018/Adopted%20Rules/28.INSURANCE.html#111

REGULATORY ACTIVITY:

• The Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) seeks input on the development of an Opioids Plan-Based Audit (Plan-Based Audit) to evaluate the appropriateness of a health care provider’s decision-making and record-keeping that supports prescribing opioids for each treatment plan tailored to a specific injured employee. The Plan-Based Audit sets the scope, methodology, selection criteria, and program area responsibilities according to the Medical Quality Review Process. A copy of the proposed Opioid Plan-Based Audit is available on the TDI website at tdi.texas.gov/wc/hcprovider/medadvisor.html. The Opioid Plan-Based Audit is a part of the approved CY 2018 Medical Quality Review Annual Audit Plan, which is available on the TDI website at www.tdi.texas.gov/wc/hcprovider/documents/auditplan18.pdf .  If you have any questions, contact Mary Landrum at 512-804-4814 or Mary.Landrum@tdi.texas.gov.
• Commissioner of Workers' Compensation Ryan Brannan adopted amended 28 Texas Administrative Code (TAC) §§ 105, 112.101, 112.102, 112.201, 112.202, 130.101, 130.102, and 136.1, and repealed 28 TAC §130.10 and §136.2 to align the Texas Department of Insurance, Division of Workers’ Compensation (division) rules with recent statutory amendments in House Bill 2112, 85th Legislative Session, Regular Session, which became effective on June 9, 2017.  The adoptions will be published in the April 6, 2018, issue of the Texas Register and available at www.sos.state.tx.us/texreg/index.shtml once published. A courtesy copy of the adopted rules will also be available on the division website at www.tdi.texas.gov/wc/rules/2018rules.html.  The division is posting finalized versions of several forms simultaneously with this rule, including the DWC Form081, Agreement Between General Contractor and Subcontractor to Provide Workers’ Compensation Insurance; the DWC Form-082, Agreement for Motor Carriers and Owner Operators; the DWC Form-083, Agreement for Certain Building and Construction Workers; the DWC Form-084, Exception to Application of Joint Agreement for Certain Building and Construction Workers; and, the DWC Form-085, Agreement Between General Contractor and Subcontractor to Establish Independent Relationship.  In addition, in response to public comment, the division is posting a new Spanish version of DWC Form-084.  Also, the division is removing the DWC Form-065, Application for Inclusion on Registry of Private Providers of Vocational Rehabilitation Services, and the DWC Form-020, Insurance Carrier’s Notice of Coverage/Cancellation/non-Renewal of Coverage, from the division website. Additional information and the forms are available on the division website at: www.tdi.texas.gov/forms/form20.html.  To view the entire notice, go to http://www.tdi.texas.gov/alert/whatsnew/index.html. To view the rules, go to http://www.tdi.texas.gov/wc/rules/2018rules.html.
• Texas Workers' Compensation Commissioner Ryan Brannan has informed Gov. Greg Abbott that he will step down from his position effective May 1. Commissioner Brannan was appointed to the Texas Department of Insurance’s, Division of Workers’ Compensation (DWC) in August 2014 by Governor Rick Perry and reappointed twice by Governor Abbott. Governor Abbott may appoint an individual to fulfill the existing term, which expires February 1, 2019.
• Posted notice of an informal posting regarding amendments to 28 Texas Administrative Code (TAC) §§7, 116.11, 133.308, 140.1, 140.8, 141.2, 142.2, 142.3, 142.7, 142.8, 142.10, 142.11, 142.12, 142.13, 142.14, 142.16, 142.18, 142.20, 143.1, 143.2, 143.3, 143.4, 143.5, 152.3, 152.6 and new §140.9.  To view the notice, go to http://www.tdi.texas.gov/alert/whatsnew/index.html.  To view the rules, to http://www.tdi.texas.gov/wc/rules/drafts.html.
• The Commissioner of Workers’ Compensation has adopted the procedure for evaluating designated doctor performance effective immediately. The evaluation procedure provides for a review of the quality of designated doctor decisions, as required by law. The Texas Department of Insurance, 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. For media inquiries, contact DWC Communications at 512-804-4208 or DWCCommunications@tdi.texas.gov.   To view additional information regarding the review, go to www.tdi.texas.gov/wc/hcprovider/medadvisor.html#ddpr.
• On March 29, 2018, Commissioner of Workers’ Compensation Ryan Brannan adopted amended 28 Texas Administrative Code §§134.500, regarding Definitions; 134.530, regarding Requirements for Use of the Closed Formulary for Claims Not Subject to Certified Networks; and 134.540, regarding Requirements for Use of the Closed Formulary for Claims Subject to Certified Networks.  The adoption was filed with the Office of the Secretary of State on April 2, 2018.  The adoption will be published in the April 13, 2018 issue of the Texas Register and may be viewed on the on the Secretary of State 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 adopted amendments to §134.500 will exclude from the closed formulary all prescription drugs created through compounding prescribed and dispensed on or after July 1, 2018.  The adopted amendments to §§134.530 and 134.540 will require preauthorization of these drugs for claims subject to and not subject to certified networks.  The rule change does not prohibit the use of compounded drugs for injured employees when medically necessary; however, it does require that medical necessity be determined prior to prescribing and dispensing these drugs on or after July 1, 2018.  Prescriptions for compounded drugs not requiring preauthorization that are written before July 1, 2018, and refills for those prescriptions, will not be impacted by this rule change.
• The Texas Department of Insurance, Division of Workers' Compensation (division) is accepting public comments on a proposed rule to amend 28 Texas Administrative Code (TAC) §129.5.   If you want to comment on the proposal, submit your written comments by 5:00 p.m. Central time on May 21, 2018. A request for a public hearing must be sent separately from your written comments. 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 Maria Jimenez Workers' Compensation Counsel MS – 4D 7551 Metro Center Drive, Suite 100 Austin, Texas 78744-1645.  If a hearing is held, TDI-DWC will consider written comments and public testimony presented at the hearing.  The proposal will be published in the April 20, 2018 issue of the Texas Register and will be available at sos.state.tx.us/texreg/index.shtml once published. A courtesy copy will also be available on the TDI website at www.tdi.texas.gov/wc/rules/2018rules.html.  The amendment conforms the division’s rules to legislation passed during the 85th legislative session (House Bill 2546, effective June 9, 2017). Amended §129.5 allows a delegated health care practitioner authorized under Labor Code §408.025 to complete, sign, and file a work status report.  Amended §129.5 also allows an injured employee to receive a work status report by electronic transmission, if the injured employee agrees to receive the report by electronic transmission. In accordance with §133.20(e)(2), a medical bill must be submitted in the name of the licensed health care provider that provided the health care or that provided direct supervision of an unlicensed individual who provided the health care.  If an authorized physician assistant completes and signs a work status report in accordance with proposed Rule §129.5, the physician assistant should be listed as the rendering provider on the medical bill. To view the proposed rule, go to http://www.tdi.texas.gov/wc/rules/2018rules.html.
• Posted notice of adoption of rule 133.30 regarding telemedicine and telehealth services.  Commissioner of Workers' Compensation Ryan Brannan adopted new 28 Texas Administrative Code §133.30, regarding Telemedicine Services and Telehealth Services. The adoption will be published in the April 27, 2018 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 once published. A courtesy copy of the adoption is available on the division’s website at https://www.tdi.texas.gov/wc/rules/2018rules.html.
  New §133.30 expands access to telemedicine services in the Texas workers’ compensation system by allowing health care providers to bill and be reimbursed for telemedicine or telehealth services regardless of where the injured employee is located at the time the services are delivered. Health care providers must follow applicable Medicare payment policies and billing provisions found throughout Chapter 133 and 134 of division rules when billing for telemedicine or telehealth services.  New §133.30 is applicable to telemedicine and telehealth services provided on or after September 1, 2018. A list of services billable under Medicare payment policies may be found at https://www.cms.gov/Medicare/Medicare-General-Information/Telehealth/Telehealth-Codes.html.  To view the rule, go to https://www.tdi.texas.gov/wc/rules/2018rules.html.

FEE SCHEDULE NEWS:

• The Division has adopted a new Home Health and Dental fee schedule for April 2018. The next update is expected in July 2018.

REGULATORY ACTIVITY:

• The Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) has made an additional amendment to new plain language notice PLN-3b.  The amendment provides insurance carriers with an option to communicate to injured employees when they are making a reasonable assessment of impairment rating pursuant to Labor Code §408.121(c).  This additional language does not need to be included on the PLN-3b when an insurance carrier is not making a reasonable assessment.   TDI-DWC notes that Labor Code §408.0041(f) requires an insurance carrier to pay benefits based on the designated doctor’s opinion during the pendency of any dispute, unless otherwise ordered by the commissioner. Insurance carriers must begin using revised plain language notices PLN-1, PLN-2, and PLN-4 through PLN-12 on March 1, 2018.  To allow time for system participants to implement the latest amendment, insurance carriers must begin using the PLN-3a, PLN-3b, and PLN-3c on April 1, 2018. The finalized PLNs are available on the TDI-DWC website at tdi.texas.gov/forms/form20plain.html.  Insurance carriers may choose to continue using the existing plain language notices or to begin using the revised notices until the effective date. If you have any questions, please contact Emily McCoy at Emily.McCoy@tdi.texas.gov.
• Posted notice of proposed Telemedicine Rules in the state register.  To view the posting in the register, go to http://www.sos.state.tx.us/texreg/archive/March22018/Proposed%20Rules/28.INSURANCE.html#35.
• Published the Workers' Compensation Research and Evaluation Group FY 2018 Research Agenda.  To view the agenda, go to http://www.tdi.texas.gov/wc/rules/documents/regagenda18m.pdf.
• The Texas Department of Insurance, Division of Workers' Compensation, pursuant to the authority and direction given under the Texas Workers' Compensation Act (Texas Labor Code, §401.023), has determined that any interest or discount provided for in the Act shall be at the rate of 5.58 percent. This rate is computed by using the treasury constant maturity rate for one-year treasury bills {2.08 percent) issued by the United States Government, as published by the Federal Reserve Board for March 171 2018 {the 15th day preceding the first day of the calendar quarter for which the rate is to be effective), plus 3.5 percent as required by Texas Labor Code, §401.023. The rate shall be effective April 1, 2018 through June 30, 2018.

REGULATORY ACTIVITY:

• The Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) finalized revisions to DWC Form-005, Notice of No Coverage or Termination of Coverage. Revisions to DWC Form-005 change the way that required information is arranged to make it easier for employers to know what is needed on the form.  The information requested on the form is the same information that was requested in the previous form.  The frequently asked questions portion is updated to include questions that are currently on the division’s website, but not currently on the form. Specifically, the FAQs being incorporated into the form are: “How do I determine my filing period start date?”; “How do I determine my filing period end date?”; “What is a NAICS code?”; and “Are any fields on the DWC Form-005 optional?”.  The proposed version of the DWC Form-005 also removes the requirement that an employer file a Termination of Coverage notice by certified mail to align with HB 2112 (85th Legislature, Regular Session, 2017), which amended Texas Labor Code § 406.007(a) and removed that requirement.  Finally, the notice at the bottom of the form that is required by Texas Govt. Code § 559.003 is updated to include the current approved language and provide a link to the procedure to correct information.  An informal working draft of DWC Form-005 was posted on the TDI-DWC website on November 17, 2017, and the informal comment period ended on December 1, 2017. The finalized DWC Form-005 is available on the TDI-DWC website at: tdi.texas.gov/forms/form20employer.html#dwc005, and is effective February 1, 2018.
• On March 1, 2018, Texas workers’ compensation insurance carriers must use the new and revised plain language notices. The Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) recently revised plain language notices PLN-1, PLN-2, and PLN-4 through PLN-12; and created new notices PLN-3a, PLN3b, and PLN-3c.   Insurance carriers may not use older versions of the plain language notices on or after March 1, 2018. TDI-DWC will remove all previous versions from its website. The new and revised plain language notices are available at tdi.texas.gov/forms/form20plain.html.  TDI-DWC’s goal is to improve the notices insurance carriers use to communicate with injured employees. Generally, the purpose of the new and revised plain language notices is to provide consistency in language and formatting and to provide an emphasis on plain language. The revisions were made to both the English and Spanish versions of the forms.  In addition, the PLN-3, which has historically been used to report up to five different benefit scenarios, has been divided into three different notices. After review, TDI-DWC determined that the separation of different benefit scenarios helps ensure only necessary information is being relayed to the injured employee, and that it is provided in a simple, easy to understand manner.  If you have any questions, please contact Emily McCoy at Emily.McCoy@tdi.texas.gov. For more information, visit www.tdi.texas.gov/wc/forms/documents/plns0917m.pdf.
• Texas has updated their home health and dental fee schedules effective February 7, 2018.  To view the updated fee schedules, go to http://public.tmhp.com/FeeSchedules/StaticFeeSchedule/FeeSchedules.aspx.
• Texas has posted notice of the division's informal rule process regarding Amending 28 TAC § 180.26, regarding criteria for imposing, recommending and determining sanctions; other remedies, and amending §180.8, regarding notices of violation; notices of hearing; default judgments.  To view the notice, go to http://www.tdi.texas.gov/wc/rules/documents/dr1800218m.pdf.  To view the draft of the proposed rule amendments, go to http://www.tdi.texas.gov/wc/rules/documents/dr1800218.pdf.  Comments on the proposed rules must be received by March 7, 2018.
• The Texas Department of Insurance, Division of Workers’ Compensation (DWC) seeks informal input from workers’ compensation system participants on a new procedure for evaluating designated doctor performance. The evaluation procedure provides for a review of the quality of designated doctor decisions, as required by law. 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 proposed evaluation procedure, including selection criteria, is available at tdi.texas.gov/wc/hcprovider/medadvisor.html.  The Medical Advisor is responsible for developing the performance review procedure, which is adopted by the Commissioner of Workers’ Compensation. The Medical Advisor will evaluate system participant suggestions.   You may submit suggestions for this procedure to OMA@tdi.texas.gov by 5 p.m. Central Time on, March 8, 2018.  To view the draft procedure, go to http://www.tdi.texas.gov/wc/hcprovider/documents/ddreview0218.pdf.
• The Texas Department of Insurance, Division of Workers' Compensation (TDI-DWC) is accepting public comments on proposed new 28 Texas Administrative Code (TAC) §133.30. The proposal will be published in the March 2, 2018, issue of the Texas Register and available at sos.state.tx.us/texreg/index.shtml, once published. A courtesy copy of the proposal will also be available on the TDI-DWC website at www.tdi.texas.gov/wc/rules/2018rules.html. If you want to comment on the proposal, submit your written comments by 5:00 p.m. Central time on April 2, 2018. A request for a public hearing must be sent separately from your written comments. 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 Maria Jimenez Workers’ Compensation Counsel MS - 4D 7551 Metro Center Drive, Suite 100 Austin, Texas 78744 -1645. If a hearing is held, TDI-DWC will consider written comments and public testimony presented at the hearing.   New §133.30 expands access to telemedicine services in the Texas workers’ compensation system by allowing health care providers to bill and be reimbursed for telemedicine services regardless of where the injured employee is located at the time the services are delivered. Health care providers must follow applicable Medicare payment policies and billing provisions found throughout Chapter 133 and 134 of TDI-DWC rules when billing for telemedicine services. Under the new rule, an exception would remove any limitation on the geographic area or location of the injured employee outlined by Medicare. Instead, a health care provider would be able to bill and be reimbursed for telemedicine services with no restriction on where the injured employee is at the time the services are delivered.  To view a copy of the notice, go to http://www.tdi.texas.gov/wc/rules/proposedrules/documents/pr133tmed0218m.pdf.  To view a copy of the proposed rule,  go to http://www.tdi.texas.gov/wc/rules/proposedrules/documents/pr133tmed0218.pdf.