REGULATORY ACTIVITY:

• DWC Finalizes the Medical Quality Review CY 2018 Annual Audit Plan. To view the plan, go to: http://www.tdi.texas.gov/wc/hcprovider/medadvisor.html
• 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) §§500, 134.530, and 134.540. Proposed amendments to §134.500 will exclude all prescription drugs created through compounding.  Proposed amendments to §§134.530 and 134.540 will require preauthorization of these drugs for claims subject to and not subject to certified networks. The proposed rule change does not prohibit the use of compounded drugs for injured employees when medically necessary; however, it does require that the medical necessity be determined prior to dispensing these drugs. To view the proposed rule, go to: http://www.tdi.texas.gov/wc/rules/2018rules.html
• Published in the state register that the Texas Department of Insurance, Division of Workers' Compensation (division) proposes to amend 28 Texas Administrative Code (TAC) §134.500, Definitions; and proposes conforming amendments to 28 TAC §134.530, Requirements for Use of the Closed Formulary for Claims Not Subject to Certified Networks; and 28 TAC §134.540, Requirements for Use of the Closed Formulary for Claims Subject to Certified Networks. The proposed changes amend the definition of the closed formulary to exclude any prescription drug created through compounding, and to require preauthorization for all prescription drugs created through compounding.  The Texas Department of Insurance, Division of Workers' Compensation (division) proposes to amend 28 Texas Administrative Code (TAC) §134.500, Definitions; and proposes conforming amendments to 28 TAC §134.530, Requirements for Use of the Closed Formulary for Claims Not Subject to Certified Networks; and 28 TAC §134.540, Requirements for Use of the Closed Formulary for Claims Subject to Certified Networks. The proposed changes amend the definition of the closed formulary to exclude any prescription drug created through compounding, and to require preauthorization for all prescription drugs created through compounding.  To view the posting in the register go to http://www.sos.state.tx.us/texreg/archive/January192018/Proposed%20Rules/28.INSURANCE.html#26. 
• Posted notice of informal rule posting regarding amendments to 28 TAC §134.230, and §134.600 concerning Return to Work Rehabilitation Programs and Preauthorization, Concurrent Utilization Review, and Voluntary Certification of Health Care.  To view the notice, go to: HTTP.  To view the rule go to: file:///D:/State%20Regulations/Texas/2018%20Proposed%20Rules/Texas%20Proposed%20drcarf0118.pdf.

• The Texas Department of Insurance, Division of Workers’ Compensation (TDI‐DWC) is accepting comments on the proposed Fiscal Year 2018 Research Agenda of the Workers’ Compensation Research and Evaluation Group (REG).  Labor Code §405.0026 requires the REG to prepare and publish annually in the Texas Register a proposed research agenda for commissioner review and approval.  Under §405.0026, the commissioner  must accept public comments on the research agenda and hold a public hearing on the proposed research  agenda if a hearing is requested by interested persons.

• 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. 

  If you wish to comment on the proposed Fiscal Year 2018 research agenda or request a public hearing, you must do so in writing no later than 5 p.m. CST on Tuesday, February 20, 2018.  A hearing request must be on a separate page from any written comments.  The Texas Department  of Insurance Division of Workers’ Compensation requires two copies of your comments or hearing request.  Send one copy by mail to:  Maria Jimenez Office of General Counsel MS – 15 Texas Department of Insurance, Division of Workers’ Compensation 7551 Metro Center Drive, Suite 100 Austin, Texas 78744 – 1645 or by email to rulecomments@tdi.texas.gov.   Send the other copy by mail to:  D.C. Campbell Director of the Workers’ Compensation Research and Evaluation Group Texas Department of Insurance Mail Code 107‐WC P.O. Box 149104 Austin, Texas 78714‐9104.  To view a copy of the proposed research agenda, go to: http://www.tdi.texas.gov/wc/regulation/roc/documents/agendafy18pro.pdf

• Has published notice in the state register of proposed changes to 28 TAC Section 110.15 Requires Notices of Coverage; TAC Section 101, 112.102, 112.201, and 112,202 Scope of Liability for Compensation; TAC section 130.10, 130.101 and 130.102 Impairment and Supplemental Income Benefits; TAC 136.1 and 136.2 Benefits Vocational Rehabilitation.  To view a copy of the notices published, go to http://www.sos.state.tx.us/texreg/sos/index.html.
• Has posted notice that the division has finalized the Lumbar Spine Magnetic Resonance Imaging (MRI) Plan-Based Audit.  On November 20, 2017, The Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) solicited and received constructive input from workers’ compensation system participants on the proposed Lumbar Spine Magnetic Resonance Imaging (MRI) 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 January 23, 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. To view a copy of the notice, go to:  http://www.tdi.texas.gov/wc/hcprovider/documents/mriaudit0118m.pdf

REGULATORY ACTIVITY:

• Texas Department of Insurance, Division of Workers' Compensation (TDI-DWC) is accepting comments for a second time on an informal working draft of amendments to 28 Texas Administrative Code (TAC) §127.5, regarding scheduling designated doctor appointments.   The informal working draft is available at tdi.texas.gov/wc/rules/drafts.html and the comment period closes on November 15, 2017 at 5 p.m. Central time.  This section is part of a larger rule project, but the division is only requesting comments on §127.5 at this time.  The informal working draft is not a formal rule proposal and comments received will not be treated as formal public comments for the purposes of the Administrative Procedure Act. There will be an opportunity to formally comment once the rule is proposed and published in the Texas Register. Informal comments may be submitted by email to InformalRuleComments@tdi.texas.gov or by mail or delivery 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  On August 18, 2017, TDI-DWC began accepting comments on an informal working draft of amendments to 28 TAC §§127.1, 127.5, 127.10, 127.100, 127.110, 127.130, 127.140, and 127.220.  In response to comments, TDI-DWC made significant changes to 28 TAC §127.5, regarding scheduling designated doctor appointments, and would like to give system participants another opportunity to submit comments on that specific section.  The purpose of the proposed amendments to 28 TAC Chapter 127 is to simplify certain DD processes, retain and recruit doctors to continue to ensure the most optimally qualified doctor is selected for an examination, provide transparency, and allow for better monitoring of designated doctors.
• Published the performance based oversight 2018 assessment selection criteria.
• Posted notice of amendment to rule Title 18 Part 1 Chapter 1 Subchapter C Assessment of Maintenance Taxes and Fees including those that apply to workers' compensation insurance.  The rule is expected to become effective on December 10, 2017.
• Posted notice of an informal posting: Revisions to DWC Form -005 Notice of No Coverage or Termination of Coverage. The Texas Department of Insurance, Division of Workers' Compensation (TDI-DWC) is accepting comments on revisions to DWC Form-005, Notice of No Coverage or Termination of Coverage. The revised form is available at http://www.tdi.texas.gov/wc/rules/drafts.html. The revised form was posted to the TDI-DWC website on November 17, 2017 and the comment period closes on December 1, 2017 at 5 p.m. Central time.  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.
• The Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) seeks input on the development of a Lumbar Spine MRI Plan-Based Audit (Plan-Based Audit) to evaluate the appropriateness of a doctor’s decision and recordkeeping that supports the ordering of lumbar spine MRIs prior to one month of conservative therapy. The Plan-Based Audit sets the scope, methodology, selection criteria, and program area responsibilities as laid out in the Medical Quality Review Process. A copy of the proposed Lumbar Spine MRI Plan-Based Audit is available on the TDI website at tdi.texas.gov/wc/hcprovider/medadvisor.html.  The Medical Advisor approved a Lumbar Spine MRI Plan-Based Audit plan as part of the CY 2017 Medical Quality Review Annual Audit Plan, which is available on the TDI website at  www.tdi.texas.gov/wc/hcprovider/documents/auditplan17.pdf.  Workers’ compensation system participants can submit suggestions for this Plan-Based Audit by email to OMA@tdi.texas.gov by 5:00pm Central time on Monday, December 4, 2017.  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) seeks informal input from workers’ compensation system participants concerning potential categories for the 2018 Medical Quality Review Annual Audit Plan (Audit Plan).
  As a reminder, the Annual Plan sets the priorities for audits the Medical Quality Review Panel (MQRP) will initiate 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 Annual Plans are available on the TDI website at www.tdi.texas.gov/wc/hcprovider/medadvisor.html.  The Medical Advisor is responsible for developing the Audit Plan, which is adopted by the Commissioner of Workers’ Compensation.  The Medical Advisor evaluates Audit Plan suggestions from system participants using the following criteria: • Does the suggested audit relate to a statutory responsibility of the Medical Advisor or the Medical Quality Review Panel pursuant to Sections 413.0511 and 413.0512 of the Texas Labor Code? (e.g., the quality of health care provided by doctors or other health care providers treating injured employees; or the quality and timeliness of decisions made by utilization review agents, insurance carriers, designated doctors or independent review organizations) • Is the administrative data to select system participants for the audit available to TDI-DWC, or is it easily obtained and reasonable to complete the audit? • Does TDI-DWC have adequate resources to complete the audit within the next year?  Workers’ compensation system participants can submit suggestions for this Plan-Based Audit by email to OMA@tdi.texas.gov by 5:00pm Central time on Monday, December 4, 2017.  If you have any questions regarding this memo, contact Mary Landrum at 512-804-4814 or Mary.Landrum@tdi.texas.gov

FEE SCHEDULE NEWS:

• The quarterly home health and dental fee schedules published by Medicaid have been updated as of October 1, 2017. The next update is expected in January 2018.

REGULATORY ACTIVITY:

• The Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) has finalized revisions to plain language notices PLN-1, PLN-2, and PLN-4 through PLN-12, as well as new PLN-3a, PLN-3b, and PLN-3c.  TDI-DWC’s goal is to improve the notices insurance carriers use to communicate with injured employees. Generally, the purpose of the finalized plain language notices is to provide consistency in language and formatting and to provide an emphasis on plain language. The revisions apply 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 in a simple and easy to understand manner. Therefore, new PLN-3a, PLN-3b and PLN-3c are also finalized.  Informal drafts of the plain language notices were posted on the TDI-DWC website on April 12, 2017, with an informal comment period ending on May 12, 2017. Based upon comments, TDI-DWC made a number of changes to the notices as posted, including clarifying whether a copy of the notice must be sent to TDI-DWC; removing the “date carrier received notice of injury”/”notice of injury date” field on most of the notices; changing the numbering of the PLN-3, PLN-13, and PLN-14 to the PLN-3a, PLN-3b, and PLN-3c in order to group the PLNs relating to impairment income benefits together into one series, as well as changing the title of each of the notices to differentiate between their purposes; and, generally reviewing and amending the carrier instructions for consistency and clarity.  The finalized notices are available on the TDI-DWC website at tdi.texas.gov/forms/form20plain.html, and are effective March 1, 2018. Insurance carriers may choose to continue using the existing plain language notices or to begin using the revised notices until the effective date. On or after March 1, 2018, insurance carriers must use the revised plain language notices.
• The Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) seeks input on the development of a Designated Doctor Plan-Based Audit (Plan-Based Audit) to review the quality of designated doctor reports and the necessity of additional testing and/or referrals ordered by the designated doctors to resolve the issue in question. The Plan-Based Audit sets the scope, methodology, selection criteria, and program area responsibilities as laid out in the Medical Quality Review Process. A copy of the proposed Designated Doctor Plan-Based Audit is available on the TDI website at www.tdi.texas.gov/wc/hcprovider/medadvisor.html.  The Medical Advisor approved a Designated Doctor Plan-Based Audit plan as part of the CY 2017 Medical Quality Review Annual Audit Plan, which is available on the TDI website at tdi.texas.gov/wc/hcprovider/documents/auditplan17.pdf.  Workers’ compensation system participants can submit suggestions for this Plan-Based Audit by email to OMA@tdi.texas.gov by 5:00 p.m. Central time on Wednesday, October 4, 2017. 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 Austin office opens at its new location October 23.  All proceedings, including benefit review conferences, contested case hearings, and appointments with the Office of Injured Employee Counsel will be at the new location starting October 23.  The new address is TDI – Division of Workers’ Compensation, Austin field office, 7551 Metro Center Drive, Suite 100, MS – 301, Austin, Texas 78744-1645. The telephone number will remain 1-800-252-7031.  The old location, 4616 W. Howard Lane, will continue to serve system participants through October 20. If you are an injured employee or workers’ compensation system participant needing help, call 1-800-252-7031.This office serves injured employees and other workers’ compensation system participants in 14 counties: Bastrop, Blanco, Burleson, Burnet, Caldwell, Fayette, Gonzales, Hays, Lavaca, Lee, Llano, Milam, Travis, and Williamson.
• The Texas Department of Insurance, Division of Workers' Compensation (TDI-DWC) is accepting comments on an informal working draft of new 28 Texas Administrative Code (TAC) §133.30, available at http://www.tdi.texas.gov/wc/rules/drafts.html. The informal working draft was posted on the TDI-DWC website on September 22, 2017 and the comment period closes on October 23, 2017 at 5 p.m. Central time. The informal working draft is not a formal rule proposal and comments received will not be treated as formal public comments for the purposes of the Administrative Procedure Act. There will be an opportunity to formally comment once the rule is proposed and published in the Texas Register. Informal comments may be submitted by email to InformalRuleComments@tdi.texas.gov or by mail or delivery 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 New §133.30 would expand the accessibility of 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.  TDI-DWC also requests stakeholders to consider and comment on the necessity of the Medicare originating site facility fees in light of the informal rule text. The current fees allow originating site facilities to bill and be reimbursed a set amount for telemedicine services provided at their facility.
• Workers’ Compensation Weekly Benefit Rates Set for October 1, 2017, Through September 30, 2018: The workers’ compensation state average weekly wage for dates of injury from October 1, 2017, through September 30, 2018, is set at $913.37. The maximum weekly benefit rates for workers’ compensation income benefits is set at $913 and the minimum weekly benefit rate is set at $137 for that period. The maximum and minimum weekly benefit rates for dates of injury from October 1, 2016, through September 30, 2017, were $913 and $137 respectively. In accordance with Texas Labor Code (TLC) §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 TLC §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 at tdi.texas.gov/wc/employee/maxminbens.html.
• The Texas Department of Insurance, Division of Workers’ Compensation has determined, pursuant to the authority and direction given under the Texas Workers’ Compensation Act (Texas Labor Code, §401.023), that any interest or discount provided for in the Act shall be at the rate of 4.80 percent.  This rate is computed by using the treasury constant maturity rate for one-year treasury bills (1.30 percent) issued by the United States Government, as published by the Federal Reserve Board on September 16, 2011 (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 October 1, 2011 through December 31, 2011.  For more information regarding calculation of the Discount Rate and Interest Rate, contact Comp Connection at 800- 252-1031, option 3. Issued in Austin, Texas, on the 25 day of September 2011.
• Released a study by the Texas Department of Insurance Workers' Compensation Research and Evaluation Group entitled Outcome Comparisons of Return to Work Rehabilitation Programs by Accreditation Status.

FEE SCHEDULE NEWS:

• The files released in July 2017 contained no updates.  The next update is expected in October 2017.

REGULATORY ACTIVITY:

• The Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) has finalized revisions to the DWC Form-045, Request to Schedule, Reschedule, or Cancel a Benefit Review Conference (BRC). TDI-DWC did not amend the DWC Form-045A or the DWC Form-045M. The revisions allow system participants to use the form for an additional purpose – to request to proceed directly to a contested case hearing (CCH) pursuant to Labor Code §410.024 and 28 Texas Administrative Code (TAC) §142.5.  Generally, parties are required to participate in a BRC prior to requesting a CCH. However, under §142.5(b) parties may proceed directly to a CCH in certain instances, including when the division determines that mediation would not prove effective to resolve the dispute or that the overall policy of the Workers’ Compensation Act would be advanced by proceeding directly to CCH. With limited exceptions, a party must request to proceed directly to a CCH in writing. Revised DWC Form-045 provides an option for these requests to be made that helps ensure TDI-DWC receives the information it needs to make a determination. TDI-DWC’s goal is to focus BRC time and resources on disputes in which participation is thought to be the most productive. Both the English and Spanish versions of the form are finalized.  An informal draft of the revised DWC Form-045 was posted on the TDI-DWC website on June 8, 2017, with an informal comment period ending on June 23, 2017. Based upon comments, TDI-DWC emphasizes that, under §142.5(e), the other party or parties has an opportunity to respond if a hearing is set upon request. Additionally, §142.5(c)(1)(B) requires that a request to proceed directly to CCH identify and describe the disputed issue or issues, and 28 TAC §142.7(f) provides that a request for hearing and the other party’s response are included in the statement of disputed issues for a CCH without a prior BRC. There were no changes made to the draft DWC Form- 045 as a result of comment.  The finalized DWC Form-045 is available on the TDI-DWC website at http://www.tdi.texas.gov/forms/form20numeric.html, and is effective immediately.
• Texas Department of Insurance (TDI) issued a Request for Proposals (RFP) No. 454-18-0804 for individuals or companies to study, advise, and conduct an assessment of its enterprise claims management and dispute resolution systems, as well as several other smaller automated systems and to recommend a strategy for implementation of a comprehensive, integrated system for claims management and dispute resolution for its Division of Workers' Compensation. The results of this assessment will be used by TDI to select a solution and secure funding for implementation in the future. TDI invites all qualified individuals or companies to submit an offer for these services. To be considered for an award, Respondents submitting a Proposal to this RFP must have the knowledge, skills, abilities, and experience to carry out the services required under this RFP and Respondents must meet the following eligibility requirements to apply:
  • Minimum: Respondents must have a minimum of five (5) years' experience in the Information Technology field, with projects involving application development and/or IT systems analysis.
  • Preferred: In addition to the minimum requirements, Respondents with three (3) years of experience working in Worker's Compensation or similar industry (i.e. Insurance); with knowledge of Workers' Compensation System, specifically in assessing and developing system for Workers' Compensation regulatory programs are preferred.  If Respondent has performed similar services for governmental or public entities, in Workers' Compensations system design for other jurisdictions or related industries, this experience should be especially detailed. All responses must be received and time stamped at TDI prior to 3:00 p.m. Central Time, in Austin, Texas on Friday, September 8, 2017. Late responses will not be considered under any circumstance. Late responses properly identified will be returned to the Respondent unopened. All responses received prior to the due date and time specified in the RFP become the property of TDI after submission. Emailed and facsimile Proposals will not be accepted under any circumstance. Responses must be submitted to TDI at the following address:Texas Department of Insurance c/o Purchasing and Contract Administration Mail Code 108-1B P.O. Box 149104 Austin, TX 78701.
    • The Texas Department of Insurance, Division of Workers' Compensation (TDI-DWC) is accepting comments on an informal working draft of amended 28 Texas Administrative Code (TAC) §§1, 127.5, 127.10, 127.100, 127.110, 127.130, 127.140, and 127.220, available at www.tdi.texas.gov/wc/rules/drafts.html. The informal working draft was posted on the TDI-DWC website on August 18, 2017, and the comment period closed on September 1, 2017 at 5 p.m. Central time. The informal working draft is not a formal rule proposal and comments received will not be treated as formal public comments for the purposes of the Administrative Procedure Act. There will be an opportunity to formally comment once the rule is proposed and published in the Texas Register. Informal comments may be submitted by email to InformalRuleComments@tdi.texas.gov or by mail or delivery 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.
    • Published Commissioner's Bulletin Number B-0020-17 regarding Hurricane Harvey- an extraordinary event; Workers' Compensation issues concerning hurricane victims or evacuees.

LEGISLATIVE ACTIONS:

• House Bill 1456
  The enacted legislation amends Section 415.035, Labor Code, to delete existing Subsection (a) designation and to  delete  existing  designation  and  text  of  Subsection  (b)  (relating  to  required  actions  by  a person  charged  if  an  administrative  penalty  is  assessed),  (c)  (relating  to  failure  to  comply  with Subsection (b)  resulting  in a waiver of  all legal  rights to contest the violation or the  amount of the penalty), and (d) (relating to required actions by the Division of Workers' Compensation of the Texas Department of Insurance, if the court determines that the penalty should not have been assessed or reduces the amount of the penalty).  The legislation also makes application of Section 415.035, Labor Code, as amended by this Act, prospective.  The legislation does not expressly grant any additional rulemaking authority to a state officer, institution, or agency.   Effective Date September 1, 2017.
• House Bill 2546
  The enacted legislation amends section 408.025 of the Labor Code. The legislation authorizes a treating doctor (doctor) to delegate to a physician assistant (PA) who is licensed to practice in this state under Chapter 204 (Physician Assistants), Occupations Code, the authority to complete and sign a work status report regarding an injured employee’s ability to return to work. Provides that the delegating doctor is responsible for the acts of the PA under this subsection. Effective Date September 1, 2017.

REGULATORY ACTIVITY:

• The Division of Workers’ Compensation recently reviewed form letters it sends to injured employees and decided to modify the correspondence using nationally recognized principles to increase usability. In other words, they made them easier to read. A group of experts from across the agency looked at ways to meet legal requirements for the letters while also making them more readable and useful to injured employees. Eight letters and notices have been redone so far and will be used starting this month. “Workers’ compensation is complex, and we want to do everything we can to help injured employees get the care and benefits they’re entitled to,” said Commissioner Ryan Brannan. “A clearly written letter can help the employee better understand the process.” The project started by looking at an inventory of hundreds of letters sent to injured employees, said the division’s Melody May. The letters that are used most frequently were the first to be reviewed and improved. “We stripped the letters down and started to rebuild them with input from the subject matter experts,” May said. The wording, format, and organization of the new letters were guided by plain language writing techniques to make them easier to understand. TDI’s Fawn Escalante, who helped with the project, said the revised letters use shorter words and sentences, have clear headings, and avoid jargon. One of the notices revamped by the group is the Request for Required Medical Examination letter. The previous letter was written at a college reading level. After the revision, the letter now is at a seventh-grade level. New headings make it easy for someone skimming the letter to see what action they need to take (get an exam), the name of the doctor, and how to change the appointment time if necessary. “We know people often skim letters, and we wanted to make it easy for the reader to get the information they need quickly,” Escalante said. May said the work group had three requirements for its finished letters: The content had to be current, the format had to be compatible with records processing, and the wording had to meet legal requirements. The work group met the third condition by including legal terms on the letters in parentheses next to the more common wording.
• The division also revised notices that workers’ compensation carriers send to injured employees and is reviewing comments received on those changes. It expects improved versions of those letters to be approved this summer.
• Posted informal notice regarding to amendments to 28 TAC Section 134.500.
• The Texas Department of Insurance, Division of Workers' Compensation has determined, pursuant to the authority and direction given under the Texas Workers' Compensation Act (Texas Labor Code, §401.023), that any interest or discount provided for in the Act shall be at the rate of 4.71 percent. This rate is computed by using the treasury constant maturity rate for one-year treasury bills (1.21 percent) issued by the United States Government, as published by the Federal Reserve Board on June 16, 2017 (the 15`^h 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 July 1, 2017, through September 30, 2017. The rate in effect for the previous period of April 1, 2017, through June 30, 2017, was 4.50 percent. For more information regarding calculation of the Discount Rate and Interest Rate, contact Dylan McCoy, Texas Department of Insurance, Financial Services, at 512-676-6195. Issued in Austin, Texas, on 26th day of June 2017.

LEGISLATIVE ACTIONS:

• House Bill 451
  The enacted legislation amends Chapter 451, Labor Code, to authorize a first responder who alleges a violation of employment discrimination by a state or local governmental entity that employs the first responder based on the responder's pursuit of a workers' compensation claim to sue the governmental entity for relief. H.B. 451 waives and abolishes sovereign or governmental immunity from suit to the extent of liability created by statutory provisions prohibiting such discrimination. The bill establishes that its provisions do not affect the immunity of a person who has official or individual immunity from a claim for damages. The bill amends Chapter 504, Labor Code, to limit the liability of a political subdivision under statutory provisions prohibiting employment discrimination based on an employee's pursuit of a workers' compensation claim to money damages capped at $100,000 for each person aggrieved by a violation of those provisions and at $300,000 for each single occurrence of such a violation. The bill establishes that a single occurrence is considered to be a single employment policy or employment action that results in discrimination against or discharge of one or more employees concurrently. Effective Date September 1, 2017.

• House Bill 919
  Interested parties assert that there is no mechanism for the state to provide workers’ compensation insurance benefits for non-state-employee members of Incident Management Teams or Texas Intrastate Fire Mutual Aid System teams while on state-activated deployments or training. These parties contend that no state coverage exists for these personnel in the event participants are injured or killed during state-activated deployments and that the state could maximize the effectiveness of its emergency response if it appropriately covered these first responders. The enacted legislation addresses this issue by providing appropriate coverage for non-state-employee task force members while deployed on state authorized training activities. It amends current law relating to workers' compensation insurance coverage for certain intrastate fire mutual aid system team members and regional incident management team members. Effective Date September 1, 2017.

• House Bill 1983
  Interested parties note that under current law, post-traumatic stress disorder (PTSD) is not recognized as a compensable injury under the Texas' workers' compensation system like many physical wounds. To receive care for this disorder, a first responder must show a physical condition such as sleep deprivation that could be remedied with treatment for PTSD or receive a diagnosis of a mental impairment or mental illness that has a treatment similar to PTSD. Under the current system mental illness or mental impairment diagnosis could result in a claim that a first responder was unfit for duty when a small amount of counseling was all they required. Furthermore, delays in receiving diagnoses or treatment leave first responders at higher risk for self-harm and self-destructive behavior resulting from this disorder. The enacted legislation seeks to remedy these issues with the current system by amending Subchapter B, Chapter 504, Labor Code, to make PTSD, as diagnosed according to the American Psychiatric Association, a compensable injury under workers' compensation.  It gives a firefighter or police officer the option to apply for benefits under workers' compensation for PTSD without declaring a mental impairment, providing they meet the diagnostic criteria and the condition was caused by an event occurring within the scope of their employment as a firefighter or police officer. The legislation amends current law relating to the eligibility of a first responder for workers' compensation benefits for post-traumatic stress disorder.  Effective Date September 1, 2017.

• House Bill 1989
  Current law allows a certified self-insurer to withdraw from self-insurance with the approval of the commissioner of workers' compensation (commissioner) if it shows to the satisfaction of the commissioner that it has established an adequate program to pay all incurred losses, including unreported losses, that arise out of accidents or occupational diseases first distinctly manifested during the period of operation as a certified self-insurer. To add clarity to current law and to reduce compliance burdens on self-insurers choosing to withdraw. The legislation will provide that, for purposes of withdrawal, an "adequate program" includes one in which the self-insurer has insured or reinsured all of its incurred workers' compensation obligations with an authorized insurer under an agreement that is filled with and approved in writing by the commissioner.  The enacted legislation amends current law relating to the requirements for withdrawal by a certified self-insurer from workers' compensation self-insurance.  Effective Date September 1, 2017.

• House Bill 1990
  The Texas Certified Self-Insurer Guaranty Association (TCSIGA) was established by the workers' compensation reforms of 1989 and is composed of large employers in Texas who have elected to self-insure. Different from non-subscribers, these employers serve as their own carriers and contribute to the Texas certified self-insurer guaranty trust fund, which is fully funded by the member companies. Currently the trust fund is capped at $2,000,000. Members believe that this amount is too low and that capping with a dollar amount rather than a rate makes the fund insufficiently sensitive to fluctuating risks. The enacted legislation addresses these issues by replacing the dollar cap with a risk-sensitive cap of three percent of the combined value of the security deposits of all certified self-insured employers. It also directs the TCSIGA board of directors to submit a recommended balance of the trust fund to the commissioner of workers' compensation for approval and conditions the requirement for the board to adopt a year-by-year schedule of assessments fund on the commissioner's approval.  The enacted legislation amends current law relating to the administration of the Texas certified self-insurer guaranty trust fund.  Effective Date September 1, 2017.

• House Bill 2053
  Workers' compensation fraud occurs when a person knowingly or intentionally conspires to commit, misrepresents, or makes a false statement to either deny or obtain workers' compensation benefits, or profits from the deceit. In an effort to focus more attention on identifying, investigating and prosecuting premium and provider workers' compensation fraud, the Texas Department of Insurance, Division of Workers' Compensation (TDI; DWC) leadership established a dedicated DWC fraud unit in 2016. This allows experienced DWC staff to better monitor and investigate fraud specific to the workers' compensation system. Along with this centralization of workers' compensation fraud investigations, current statutes authorizing the investigation of fraud were re-evaluated and it was determined that it is necessary to clarify existing authority to ensure that criminal workers' compensation fraud investigations are conducted in an effective and transparent manner. The legislation seeks to clarify DWC's existing authority to conduct workers' compensation fraud investigations. The legislation amends current law relating to the enforcement of workers' compensation compliance and practice requirements.  Effective Date June 9, 2017.

• House Bill 2056
  The Division of Workers' Compensation (DWC) contracts with designated doctors to provide independent medical opinions at the request of an injured employee or insurance carrier. Those doctors in turn contract with scheduling companies to which they delegate various administrative responsibilities. DWC has expressed concern that it is not always clear what responsibilities have been delegated to a scheduling company, making it difficult to ensure that only authorized agents have access to confidential claims information. To address this issue, the legislation requires a designated doctor, upon request by DWC, to provide the division with a copy of any contract between the doctor and an authorized agent providing services related to the doctor's duties, including scheduling, billing, and organizing medical records. As a result, the legislation would ensure that DWC is able to compel production of documents currently shielded from open records law, thus enhancing DWC's ability to determine that doctors are not sharing confidential claims information with scheduling companies.  The enacted legislation amends current law relating to access by the division of workers' compensation to certain designated doctor contracts under the workers' compensation system. Effective Date September 1, 2017.

• House Bill 2060
  The Office of Injured Employee Counsel (OIEC), an office within the Texas Department of Insurance's Division of Workers' Compensation, staffs its field offices with "ombudsmen," personnel whose role in the agency is to assist claimants in filing claims. Section 404.152(b), Labor Code, provides that, to be eligible for designation as an OIEC ombudsman, a person must, among other requirements, "have at least one year of demonstrated experience in the field of workers' compensation." The OIEC finds this requirement to be an onerous impediment to staffing its 21 field offices throughout the state. Filling an ombudsman vacancy, the agency reports, takes 15 months at minimum, and, with an already limited applicant pool, it becomes increasingly difficult to find a person who is located near where the vacancy exists and who also possesses the requisite year of experience. The enacted legislation addresses this issue and enhances the ability of OIEC to staff its ombudsman offices by eliminating the one-year experience requirement.  The legislation amends current law relating to the eligibility requirements for employment as an ombudsman of the Office of Injured Employee Counsel under the Texas Workers' Compensation Act. Effective Date June 9, 2017.

• House Bill 2061
  Workers' compensation claim disputes are first addressed through the Texas Department of Insurance, Division of Workers' Compensation (DWC) dispute resolution process, which consists of a benefit review conference, a contested case hearing, and a review, by the appeals panel. If a party disagrees with the agency's decision, it may seek judicial review in district court. Section 410.253, Labor Code, requires a party to provide "written notice of the suit or notice of appeal" to DWC and authorizes DWC to intervene in any judicial review proceeding (Section 410.254, Labor Code). However, the form and substance of the required written notice is not defined. This leads to DWC often having no opportunity, or only a limited opportunity, to discern why the petitioner disagrees with DWC's appeals panel decision.  Once a petition for judicial review has been filed in district court there are several possible outcomes, including settlement, a default judgment, a summary judgment, an agreed judgment, or judgment after trial on the merits. Current statute (Section 410.258, Labor Code), requires that any proposed judgment or settlement made by the parties be filed with DWC thirty days prior to the date the court is scheduled to enter the judgment or approve the settlement. This allows DWC to review proposed judgments to ensure that they comply with the law. However, some proposed settlements or judgments filed with DWC contain generic language that describes what is being resolved at a high level, but the terms and conditions of the agreement or settlement appear to be intentionally ambiguous or remain undisclosed. As a result, it is often extremely difficult for DWC to review proposed judgments and settlements for compliance with the law and to monitor the quality of appeals panel decisions by tracking the outcome of those appeals. The enacted legislation amends Section 410.253, Labor Code, to clarify that a party seeking judicial review of a DWC appeals panel decision shall provide DWC with a copy of the party's petition that has been filed with district court. This clarification will ensure that DWC does not receive a generic notice of appeal. The legislation also amends Section 410.258, Labor Code, to clarify that a party's duty to file any proposed judgment or settlement with DWC includes all proposed judgments and settlements to be entered after summary proceedings, hearings or trial, and any other judgments on the merits, and that any proposed judgments filed with DWC set forth the precise terms of the settlement or agreement. The enacted legislation amends current law relating to service and filing requirements for a party seeking judicial review in certain workers' compensation cases.  Effective Date September 1, 2017.

• House Bill 2082
  Interested parties contend that first responders seeking treatment for on-the-job injuries should not be left to navigate the complex process of resolving workers' compensation insurance claims on their own. The enacted legislation seeks to assist injured first responders in obtaining benefits, care, and dispute resolution under the workers' compensation system by providing for the designation and training of an employee of the office of injured employee counsel as a first responder liaison to provide such assistance. The legislation amends current law relating to the designation of a liaison to assist first responders with workers' compensation claims.  Effective Date September 1, 2017.

• House Bill 2111
  Under current law, when a dispute arises regarding a workers' compensation claim, the dispute may be resolved through a quasi-judicial process involving a hearing. The Division of Workers' Compensation (DWC) personnel who preside at these hearings are referred to in current law as "hearing officers." DWC's leadership believes that this title does not accurately reflect those employees' role. Hearing officers must be licensed attorneys, and, for purposes of the state employee classification titles established by the State Auditor's Office, they already are classified as administrative law judges. What's more, personnel discharging similar duties in other states' workers' compensation systems and in other agencies in Texas typically are referred to as administrative law judges. For clarity and consistency, Texas DWC hearing officers should be so called as well. The enacted legislation amends the Division of Worker's Compensation statute to change references in that statute from "hearing officer" to "administrative law judge."  The enacted legislation amends current law relating to changing statutory references to hearing officer and hearings officer to administrative law judge under the workers' compensation system.  Effective Date September 9, 2017.

• House Bill 2112
  The purpose of the enacted legislation is to promote efficiency by eliminating completed or obsolete reporting requirements from the statute that governs the Division of Workers' Compensation (DWC) and to authorize the division to send and receive various notices electronically. Current statute requires DWC to produce a number of one-time legislative reports or perform reporting functions that are no longer necessary. Some of these reports have been completed; other reporting functions are obsolete and create inefficiencies for system stakeholders. Current statute also requires that many notices sent to and provided by DWC be physically mailed or personally delivered, which creates system inefficiencies and does not allow DWC the flexibility to determine the best method for delivering or receiving notices.  The enacted legislation strikes the obsolete reporting requirements and would allow electronic transmission of statutorily required communications.  Effective Date June 9, 2017.

• House Bill 2119
  Interested parties contend that, although the workers' compensation system allows for the treatment of injured workers by a physician assistant, such an assistant is not currently authorized to complete and sign work status reports regarding an injured employee's ability to return to work. The enacted legislation increases efficiency within the workers' compensation system by authorizing a licensed physician assistant to complete and sign such reports. The legislation amends current law relating to completion of work status reports by a physician assistant under the workers' compensation system. Effective Date June 9, 2017.

• Senate Bill 877
  Under Chapter 417, Labor Code, an injured employee/beneficiary may pursue a third-party action, seek damages and may also pursue workers’ compensation benefits under the Texas Workers’ Compensation Act. These third-party actions may be initiated in situations where persons or company’s other than the employer for the injured employee caused the work-related injury or fatality (for example, pursuing the manufacturer of a machine that was not properly designed and caused an injury or pursuing a third-party who caused an automobile accident that involved the injured employee).  In these situations, if the injured employee/beneficiary recovers any damages under the third-party action, then Chapter 417, Labor Code, clarifies that the workers’ compensation insurance carrier may recover any payments made by the carrier as a result of the workers’ compensation claim (such as medical and/or indemnity benefits) from the net recovery amount received by the injured employee/beneficiary. Additionally, Chapter 417, Labor Code, provides for the payment of attorney fees to a claimant attorney in certain situations where the claimant attorney is also representing the interest of the workers’ compensation insurance carrier in a third-party action. The 79th Legislature, Regular Session, 2005, added Section 504.053, Labor Code, to allow political subdivisions the option of either establishing/contracting with a certified workers’ compensation health care network under Chapter 1305, Insurance Code, or directly contracting with health care providers for health care services. New Section 504.053(e), Labor Code, also included the following language, "Nothing in this chapter waives sovereign immunity or creates a new cause of action." Prior to the addition of Section 504.053(e), Labor Code, political subdivisions that subrogate and recover workers’ compensation benefit payments made to the injured employee/beneficiary could not assert sovereign immunity to shield themselves from attorney fees. However, in recent years, some governmental entities may have begun to claim sovereign immunity from the payment of injured employee/beneficiary attorney fees, including attorney fees as a result of third-party actions on a workers’ compensation claim. This could create inequity between injured employees/beneficiaries who have a workers’ compensation claim administered by a political subdivision, compared to a certified self-insured employer or commercial workers’ compensation insurance carrier.  Effective Date September 1, 2017.

• Senate Bill 1494
  Under current law, work-hardening and work-conditioning treatments require pre-authorization and concurrent review unless provided by an organization credentialed by the commissioner of workers’ compensation (commissioner) by rule. The Texas Department of Insurance believes the credentialing requirement has not been sufficient to deter overutilization of these costly treatments, often with no better outcomes than would be expected from non-credentialed providers. The enacted legislation addresses the ineffective overutilization of work-hardening and work-conditioning therapies by amending Section 413.014(c), Labor Code, to give the commissioner discretion to require preauthorization and concurrent review of such therapies even when performed by credentialed providers.  Effective Date September 1, 2017.

• Senate Bill 1895
  Currently, under Section 415.021, Labor Code, in cases of an administrative penalty, the commissioner of workers' compensation considers the seriousness of the violation, the history and extent of previous administrative violations, the demonstrated good faith of the violator, the penalty necessary to deter future violations, and the economic benefit resulting from the prohibited act. The enacted legislation gives the commissioner of workers compensation additional relevant facts when reviewing technical compliance issues in order to rationalize penalties for purely technical violations where there is no adverse impact to injured workers. Effective Date September 1, 2019.

FEE SCHEDULE NEWS:

• The quarterly home health and dental fee schedules published by Medicaid have been updated as of April 1, 2017. Next update is scheduled for July 1, 2017.

REGULATORY ACTIVITY:

• The Texas Department of Insurance Division of Workers' Compensation has determined, pursuant to the authority and direction given under the Texas Workers' Compensation Act (Texas Labor Code, §401.023), that any interest or discount provided for in the Act shall be at the rate of 4.50 percent. This rate is computed by using the treasury constant maturity rate for one-year treasury bills (1.00 percent) issued by the United States Government, as published by the Federal Reserve Board on March 17, 2017 (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, 2017, through June 30, 2017. The rate in effect for the previous period of January 1, 2017, through March 31, 2017, was 4.41 percent.   For more information regarding calculation of the discount rate and interest rate, contact Dylan McCoy, Texas Department of Insurance, financial services at 512-676-6195.
• The Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) is accepting public comments on revisions to plain language notices PLN01 through PLN12, as well as new PLN13 and PLN14. To help establish a possible effective date for the new and revised notices, TDI-DWC specifically requests that stakeholders consider and comment on how much time may be necessary for implementation.  TDI-DWC’s goal is to improve the notices insurance carriers use to communicate with injured employees. Generally, the purpose of the revisions is to provide consistency in language and formatting and to provide an emphasis on plain language. The revisions apply to both the English and Spanish versions of the forms. In addition, the PLN03, 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 in a simple and easy to understand manner. Therefore, new PLN13 and PLN14 are also available for comment.  If you want to comment on the proposed revisions to the forms, submit your written comments by 5:00 p.m. Central time on May 12, 2017. Send written comments 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 draft plain language notices are available on the TDI-DWC website at tdi.texas.gov/wc/rules/drafts.html. A current version of each plain language notice is also available on the TDI-DWC website at www.tdi.texas.gov/forms/form20numeric.html.

REGULATORY ACTIVITY:

• Texas has revised four forms effective immediately. Two of the revised forms dwc045mbrc and dwc045msbrc are forms in English and Spanish regarding a request for schedule, reschedule, or cancel a benefit review conference to appeal a medical fee dispute decision.  Two of the revised forms dwc049mcch and dwc049smcch are forms in English and Spanish regarding a request to schedule a medical contested case hearing.
• The Texas Department of Insurance, Division of Workers’ Compensation (DWC) has finalized its revision of several workers’ compensation forms by removing or limiting social security numbers. In an effort to better protect confidential information and streamline processes, DWC evaluated the need for social security numbers on various workers’ compensation forms and ultimately determined to either: (1) remove the social security number field completely, or (2) request only the last four digits of the social security number. The revisions apply to English and Spanish versions of the forms.
• The Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) is accepting comment on the proposed Fiscal Year 2017 Research Agenda of the Workers’ Compensation Research and Evaluation Group (REG).  Labor Code § 405.0026 requires the REG to prepare and publish annually in the Texas Register a proposed research agenda for commissioner review and approval.  Under section 405.0026, the commissioner must accept public comments on the research agenda and hold a public hearing on the proposed research agenda if a hearing is requested by interested persons.
• On December 21, 2016, the Division of Workers’ Compensation (DWC) solicited and received input from workers’ compensation system participants regarding two potential categories for the CY 2017 Medical Quality Review Annual Audit Plan (Annual Plan).  The Division appreciates the input provided by system participants.  All comments were carefully considered and discussed.  The Commissioner of Workers’ Compensation W. Ryan Brannan approved the CY 2017 Annual Audit Plan on March 3, 2017. The Annual Plan sets priorities for the types of audits the Medical Quality Review Panel (MQRP) will initiate during the year as laid out in Section IV of Annual Plan.  At a future date, the DWC will obtain stakeholder input on the development of each individual plan-based audit proposal for categories within the Annual Plan.  At that time the DWC will post a plan-based audit that includes:
  • inclusion and exclusion criteria;
  • service time frame to be audited;
  • same size; and
  • subject and case file selection.
• All medical quality reviews initiated on or after January 1, 2017 will be performed in accordance with the approved medical quality review process (Process).  The Process and Annual Plan, including any changes, are posted on the TDI website at www.tdi.texas.gov/wc/hcprovider/medadvisor.html.
  • The Texas Department of Insurance’s Division of Workers’ Compensation (DWC) re-certified seven employers to self-insure workers’ compensation claims. Together, the companies employ about 30,000 people in Texas.

    DWC renewed:

    •    Bradford Holding Company, Inc.
    •    Textron, Inc.
    •    Weyerhaeuser Company
    •    Jacobs Engineering Group Inc.
    •    PACCAR Inc
    •    Ascension Health Alliance
    •    ABF Freight System, Inc.

    To be certified to self-insure, a company must meet state requirements and have a minimum workers’ compensation insurance unmodified manual premium of $500,000. For more information on applying to the Self-Insurance Regulation program, visit the TDI website at www.tdi.texas.gov/wc/si/index.html.

• As part of the agency’s paper reduction initiative, the Division of Workers’ Compensation (DWC) is offering insurance carriers and injured employee representatives two services for submitting claim documents electronically.
• Secure File Transfer Protocol (SFTP)
• The SFTP service allows external participants a secure electronic location where they can save documents. DWC can then retrieve those documents and place them in our system. This service is for the exchange of certain files related to Benefit Review Conferences (BRC). Examples of these filings include BRC Exchange Packets, BRC Exchange Supplemental Packets and Scheduling Order Status Reports. This service is currently a one-way exchange and is only available for an external participant to drop these specific files for DWC processing.
• Fax Back Receipt
• The Fax Back Receipt service allows our external participants to fax any single document for a single claim or dispute to a designated fax number that will then return a page-for-page fax with a DWC date stamp. This can be used for all claim related filings requiring a DWC date stamp.
• The benefits of these services include:

• • • More secure – reduced risk of losing printed copies or receipts with sensitive information.
    • Save printing costs and paper – no need to print filings for submission.
    • Save delivery costs – electronic delivery means no trip to DWC or paying postage for mailing.
    • Instant delivery – get filings to DWC more quickly.
    • Expedited processing – DWC does not have to sort, distribute and scan documents prior to processing.
    • Reduced customer scanning –the Fax Back Receipt files can be saved and stored electronically (this requires the participant to have electronic fax receipt and electronic storage.)

• The Texas Division of Workers’ Compensation rolled out a statewide program in October 2016 that has helped speed up the resolution of some disputes. The program splits up related claim issues so that a hearing officer can decide the most far-reaching issue first. This can clear the way for secondary issues to be resolved sooner. In the pilot program, the approach helped speed resolution of many workers’ compensation disputes. “We’re always looking for ways to stay on the cutting edge of workers’ compensation, and this process is a great example of finding a way to improve efficiency in the system,” said Workers’ Compensation Commissioner Ryan Brannan. “From what we’ve seen in the pilot project and in the statewide roll-out, the two-step approach to deciding some of the most complex issues in a dispute is a good option for system participants in many cases.” When an injured employee has a dispute about a claim, it often involves three issues: extent of the injury, the date that the employee reached maximum medical improvement and the impairment rating for the injury. According to Deputy Commissioner for Hearings Kerry Sullivan, even though extent of injury is a “threshold issue” that can affect the other issues, it’s often addressed at the same time as the other issues in the dispute process. “It can be challenging to come into a hearing and know there are so many alternatives for the hearing officer to address,” Sullivan said. Parties in a dispute may base their arguments about impairment ratings and dates of maximum medical improvement on what they think the extent of injury should be. If the hearing officer decides a different extent of injury, then parties will often have to request more time to adjust those recommendations. The new two-step program is voluntary, and the existing system is still used in many cases. The option to participate is presented by the presiding officer at the initial benefit review conference for cases that may benefit from the approach. The two-step approach is used only if both parties agree to it. “The presiding officer usually knows going into the dispute whether a decision on extent of injury will move things along,” Sullivan said. “Deciding the extent of injury issue first can lead to a better outcome, a more efficient hearing, and more agreements. We’re pleased it’s been working out so well.” The two-step program started at DWC’s Weslaco office in May 2015 and soon was expanded to Dallas. It’s now available at all 20 offices statewide.
• The Texas Department of Insurance, Division of Workers' Compensation has determined, pursuant to the authority and direction given under the Texas Workers' Compensation Act (Texas Labor Code, §401.023), that any interest or discount provided for in the Act shall be at the rate of 4.50 percent. This rate is computed by using the treasury constant maturity rate for one-year treasury bills (1.00 percent) issued by the United States Government, as published by the Federal Reserve Board on March 17, 2017 (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, 2017, through June 30, 2017. The rate in effect or the previous period of January 1, 2017 through March 31, 2017 was 4.41 percent. For more information regarding calculation of the Discount Rate and Interest Rate, contact Dylan McCoy, Texas Department of Insurance, Financial Services at 512-676-6195.

REGULATORY ACTIVITY:

• The Texas Department of Insurance, Division of Workers’ Compensation (DWC) is offering a grace period for employers without workers’ compensation insurance coverage (non-subscribers) to provide any late required reports to DWC without penalty.  By law, non-subscribers must annually notify DWC of their decision not to obtain workers’ compensation insurance coverage by submitting the DWC Form-005, Employer Notice of No Coverage or Termination of Coverage.  Non- subscribers must also report each on-the-job injury, occupational illness, or fatality resulting in more than one day of lost time to DWC by filing DWC Form-007, Employer’s Report of Non-Covered Employee’s Occupational Injury or Disease.  This grace period allows non-subscribers that have not reported their non-coverage status for prior years to submit the DWC Form-005 without an administrative penalty during the current February 1, 2017, through April 30, 2017 reporting period. Additionally, this grace period allows non-subscribers that have not previously reported their injuries, illnesses, and fatalities for prior years to submit the DWC Form-007 without an administrative penalty until April 30, 2017.  Non-subscribers can file the DWC Form-005 with DWC online, by fax, or by mail. The DWC Form-007 may be filed by fax or by mail. Non-subscriber Reporting Requirements:
  • A non-subscriber must file the DWC Form-005, Employer Notice of No Coverage or Termination of Coverage to DWC:
    • between February 1 and April 30 each year;
    • within 30 days of hiring its first employee;
    • within 10 days of DWC’s request.
  • Non-subscribers with five or more employees must report each fatality, occupational disease, and on-the-job injury that results in more than one day of lost time to the DWC.
  • Non-subscribers must submit the DWC Form-007, Employer’s Report of Non-Covered Employee’s Occupational Injury or Disease to the DWC within the seventh day of the month following the month in which:
    • the death occurred;
    • the employee was absent from work for more than one day because of the on-the-job injury;
    • the employer acquired knowledge of the occupational disease.
  • Additional information on non-subscriber reporting requirements is available on the TDI website at tdi.texas.gov/wc/employer/cb007.html.
• On January 11, 2017, Commissioner of Workers’ Compensation Ryan Brannan adopted the repeal of 28 TAC Chapter 57, Request for Case Folders and Certification of Actions of the Board.  Title 28 TAC Chapter 57 includes 28 TAC §57.5, concerning request for copies or statistical information; 28 TAC §57.10, concerning written request for public information; and 28 TAC §57.15, concerning telephone request for public information. The adoption was filed with the Office of the Secretary of State on January 19, 2017. The adoption will be published in the February 03, 2017, 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 order is available on the TDI-DWC website at www.tdi.texas.gov/wc/rules/2017rules.html.
• The TDI-DWC adopts the repeal of 28 TAC Chapter 57 because the rules are outdated and no longer necessary since other statutes and rules currently govern access to TDI-DWC records and requests for public information. The adopted repeal is a result of the TDI-DWC reviewing its rules pursuant to Government Code §2001.039.  Texas Government Code §2001.039 requires TDI-DWC to review and consider re-adopting, amending, or repealing its rules no later than the fourth anniversary of the rule’s effective date and every four years after that date.
• The Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) recently adopted the repeal and re-enactment of §152.3 and §152.4, as well as new §152.6.  New §152.4 increases the maximum hourly rates that may be charged by attorneys and legal assistants in the workers’ compensation system. Effective January 30, 2017, the maximum hourly rates increased from $150 an hour to $200 for attorneys, and from $50 an hour to $65 for legal assistants.  New §152.4 also includes the following increases in the guidelines for legal services: the service maximum for communications per month increased from two hours to three hours, the service maximum for direct dispute resolution negotiation with the other party increased from three hours to three and a half hours, and the service maximum for preparation and submission of an agreement or settlement increased from one hour to two hours, effective January 30, 2017.
• The insurance commissioner in Texas has issued bulletin number B-0001-17 regarding revised workers' compensation classification relativities and instructions on making rate filings.

REGULATORY ACTIVITY:

• The Texas Department of Insurance’s Division of Workers’ Compensation (DWC) re-certified 10 employers to self-insure workers’ compensation claims. Together, the companies employ about 15,000 people in Texas.  DWC renewed: Associated Wholesale Grocers, Inc.; E.I. du Pont de Nemours and Company; The Sherwin-Williams Company; Space Exploration Technologies Corp.; FedEx Freight, Inc.; Guardian Industries Corp.; International Paper Company; James Construction Group, LLC; Louisiana-Pacific Corporation; The Procter & Gamble Company. To be certified to self-insure, a company must meet state requirements and have a minimum workers’ compensation insurance unmodified manual premium of $500,000. For more information on applying to the Self-Insurance Regulation program, visit the TDI website at tdi.texas.gov/wc/si/index.html.
• On December 9, 2016, Commissioner of Workers' Compensation Ryan Brannan adopted the repeal of existing 28 Texas Administrative Code (TAC) §152.3 and §152.4. Commissioner Brannan also adopted new §152.3, §152.4, and §152.6. The adoption was filed with the Office of the Secretary of State on December 16, 2016. The adoption will be published in the December 30, 2016 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 (TDI) website at http://www.tdi.texas.gov/wc/rules/2016rules.html.  The repeal and re-enactment of §152.3, Approval or Denial of a Fee by the Division, and §152.4, Guidelines for Legal Services Provided to Claimants and Carriers, is necessary to update the attorney fee rules for the first time since 1991.  The  new  rules  reflect  changes  in  the  industry  since  152.3  and  §152.4  were  originally  adopted,  and are designed to ensure there is quality representation available within the workers’ compensation system. Additionally, they allow more time at the beginning of a dispute for preparation and case management in order to encourage early resolution of claim disputes. New §152.6, Attorney Withdrawal, requires attorneys to comply with the Texas Disciplinary  Rules  of  Professional  Conduct  when  withdrawing  from  a  claim  and  to  obtain  an  order  granting  the attorney’s withdrawal prior to withdrawing after notice of a benefit review conference or contested case hearing is received. These requirements will help prevent an attorney’s withdrawal from having a material adverse effect on the client and will assist the division in tracking representation within the workers’ compensation system.  New §152.3, §152.4, and §152.6 have a delayed effective date of January 30, 2017. Attorney and legal assistant services rendered prior to January 30, 2017 must be billed in accordance with the rules in effect on the date the services were provided. Due to system processing requirements, an application for attorney fees may not contain dates of legal services that span across the effective date.  Therefore,  one  application  must  be  submitted  for services  rendered  on  or  after  January  30,  2017,  and  a  separate  application  must  be  submitted  for  services provided prior to and including January 29, 2017.  The  Texas  Department  of  Insurance,  Division  of  Workers  Compensation  (TDI-DWC)  is  posting  the  finalized  DWC Form-150,  Notice  of  Representation;  DWC  Form-150a,  Notice  of  Withdrawal  of  Representation;  DWC  Form-151, Attorney Application for Web Access; and DWC Form-152, Application for Attorney Fees, simultaneously with these rules.  Additional  information  and  the  forms  are  available  on  the  TDI  website  at http://tdi.texas.gov/wc/forms/documents/afeeforms1216.pdf.
• The Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) has finalized revisions to amended DWC Form-150, Notice of Representation; DWC Form-151, Attorney Application For Web Access; and DWC Form-152, Application for Attorney Fees; as well as new DWC Form-150a, Notice of Withdrawal of Representation. The revisions to DWC Form-150 split the notice of representation and notice of withdrawal of representation into two separate forms, creating the DWC Form-150a. The new DWC Form-150a is provided as a means of compliance with the requirements of new 28 Texas Administrative Code (TAC) §152.6, regarding attorney withdrawal. The revisions to the DWC Form-151 are non-substantive in nature and primarily amend the form for clarity and to conform to current agency style. The DWC Form- 152 is amended to mirror the requirements of new 28 TAC §152.3, regarding approval or denial of fee by the division, and ensure TDI-DWC is receiving the necessary information to fulfill its statutory duty to approve attorney fees in the workers’ compensation system.    Informal drafts of the forms were posted on the TDI-DWC website on August 17, 2016, with an informal comment period ending September 19, 2016.   The finalized forms are available on the TDI-DWC website at http://www.tdi.texas.gov//forms/form20numeric.html, and are effective January 30, 2017. Attorneys should use the updated forms beginning January 30, 2017, to ensure compliance with the new rules. Additionally, attorneys should note that applications for attorney fees submitted on previous versions of the DWC Form-152 may not be accepted by the division.   TDI-DWC is posting the finalized forms simultaneously with the adopted repeal and re-enactment of 28 TAC §152.3 and §152.4, as well as new §152.6. Additional information about the adopted rules is available on the TDI website at: http://www.tdi.texas.gov/wc/rules/2016rules.html.
• The Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) recently adopted the repeal and re-enactment of §152.3 and §152.4, as well as new §152.6.  New §152.4 increases the maximum hourly rates that may be charged by attorneys and legal assistants in the workers’ compensation system. Effective January 30, 2017, the maximum hourly rates increased from $150 an hour to $200 for attorneys and from $50 an hour to $65 for legal assistants.  New §152.4 also includes the following increases in the guidelines for legal services: the service maximum for communications per month increased from two hours to three hours, the service maximum for direct dispute resolution negotiation with the other party increased from three hours to three and a half hours, and the service maximum for preparation and submission of an agreement or settlement increased from one hour to two hours, effective January 30, 2017.  Here is what you need to know about these changes:
  • Attorneys may continue to submit the DWC Form-152, Application for Attorney Fees, through the Web- Enabled Attorney Fee Processing System (WAFPS), fax, or mail.
  • The new rules have a delayed effective date of January 30, 2017. Attorney and legal assistant services must be billed per the rules in effect on the date the services were provided. Thus, applications requesting fees for services provided prior to January 30, 2017, may not exceed a maximum hourly rate of $150 an hour for attorneys and $50 an hour for legal assistants, and the hours must comply with the guidelines for legal services in effect at that time.
  • Due to system processing requirements, an application may not contain dates of legal services that span across the effective date. If services include dates in both time periods, separate applications must be submitted requesting the appropriate maximum hourly rates: $150/$50 for services provided prior to January 30, 2017, and $200/$65 for applications requesting fees for services provided on or after January 30, 2017.
  • Under the new rules, attorneys must use their own bar card number when requesting attorney fees and must notify the division when withdrawing representation at any point during the claim. In some instances, the attorney must first provide good cause and receive a division order granting the withdrawal before withdrawing from a claim.
  • Along with the rules, the division amended DWC Form-150, Notice of Representation; DWC Form-151, Attorney Application for Web Access; and DWC Form-152, Application for Attorney Fees; as well as created new DWC Form-150a, Notice of Withdrawal of Representation. The finalized forms will be effective January 30, 2017, and are available on the TDI website at tdi.texas.gov/forms/form20numeric.html.  Attorneys should use the updated forms beginning January 30, 2017, to ensure compliance with the new rules. Additionally, attorneys should note that applications for attorney fees submitted on a previous version of the DWC Form-152 may not be accepted by the division.  Please also note that WAFPS will be unavailable January 28–29, 2017, so that the system can be updated to reflect the new requirements of adopted §152.3 and §152.4. Attorneys using WAFPS will need to submit applications for attorney fees before January 28, 2017, or after January 29, 2017, at the appropriate maximum rates for the time period that the services were provided. If you have any questions about the new rules, please contact Emily McCoy at Emily.McCoy@tdi.texas.gov. For more information, visit the TDI website at www.tdi.texas.gov/alert/whatsnew/2016/index.html.
• Texas has disciplined two physicians treating injured workers.
• The Division ordered the following for DR. Prtichett:
  • Gary L Pritchett, D.C. is ordered to not apply for certification of the division's designated doctor list for a period of three years from the date this order is signed by the Commissioner of Workers' Compensation.  If Gary L.  Pritchett, D.C. applies for certification of the division's designated doctor list during the three-year period the division will deny the application.  The order was effective September 23, 2016
• The division ordered the following for Dr. Carter:
  • It is  ORDERED that  from  the  date  of this  order, Jerome Oliver Carter,  M.D.,  shall  be removed from the  Texas  workers’  compensation system and  will  no longer participate  in the Texas workers’  compensation  system,  network  or  non-network,  as a  health care provider.  Dr.  Carter will not participate in treating, examining, and/or consulting with other physicians regarding injured employees who are covered under the Texas workers’ compensation system.  Additionally, Dr.  Carter will not receive direct or indirect remuneration from the Texas workers’ compensation system.  This order does not apply to emergency cases, as defined by 28 TEX.  ADMIN.  CODE § 133.2.  This order was effective September 20, 2016.
• The order for Dr. Pritchett primarily pertains to actions by the Division.  The division has barred Dr. Pritchett from serving as a designated doctor for a 3-year period.
• The order for Dr. Carter applies across the board.  The Division has barred Dr. Carter from treating injured workers or receiving remuneration for treating injured workers except in the case of an emergency.  This is a total ban barring Dr. Carter for life from participating in the workers' compensation system in Texas.

FEE SCHEDULE NEWS:

• New conversion factors have been adopted as of January 1, 2017. The next update is scheduled for January 1, 2018.
• The state of Texas adopts the quarterly Medicare modules update. Please refer to the Medicare modules section for more information.
• The quarterly Home Health and Dental fee schedules published by Medicaid have been updated as of January 1, 2017. Next update is scheduled for April 1, 2017.

REGULATORY ACTIVITY:

• The Texas Department of Insurance, Division of Workers' Compensation (TDI-DWC) is accepting comments on the proposed repeal of 28 TAC Chapter 57, Request for Case Folders and Certification of Actions of the Board.  Title 28 TAC Chapter 57 includes 28 TAC §57.5, concerning request for copies or statistical information; 28 TAC §57.10, concerning written request for public information; and 28 TAC §57.15, concerning telephone request for public information. The TDI-DWC proposes to repeal 28 TAC Chapter 57 because the rules are outdated and no longer necessary since other statutes and rules currently govern access to TDI-DWC records and requests for public information. The proposed repeal is a result of TDI-DWC reviewing its rules pursuant to Government Code §2001.039. Texas Government Code §2001.039 requires TDI-DWC to review and consider re-adopting, amending, or repealing its rules no later than the fourth anniversary of the rule’s effective date. If you want to comment on the proposal, submit your written comments by 5:00 p.m. Central time on January 02, 2017. 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 Office of General Counsel MS – 40 7551 Metro Center Drive, Suite 100   Austin, Texas 78744 -1645.  The proposal will be published in the December 2, 2016 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-DWC website at www.tdi.texas.gov/wc/rules/2016rules.html.
• To provide predictability and reflect changes in medical service delivery costs to system participants, DWC established a conversion factor and an annual update as part of 28 TAC §134.203(c).  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 2017 reflects an increase of 1.2 percent. For services provided in calendar year 2017, the new Medical Fee Guideline conversion factors are $57.50 and $72.18.  The conversion factor of $57.50 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 $72.18 applies to surgery when performed in a facility setting.
• The Texas Department of Insurance issued a mandatory data call under Texas Insurance Code, Sections 003, 2251.008, and 38.001. This data call is the basis for a report that TDI is required to submit annually to the governor, lieutenant governor, the speaker, the Legislature, and the public. You must respond to this data call using the instructions linked to this bulletin no later than February 10, 2017. You also must retain underlying data, individual source documents, and other information used to develop your response until at least February 10, 2019.