|
Witness
Statement Form
(In Word Format)
Worker's
Compensation Interview Form
(In Word Format)
|
The Commissioner of Insurance shall develop and implement policies that
clearly separate the respective responsibilities of TDI and the Division.
The Commissioner of Insurance may also provide advice, research and comment
regarding the adoption of rules by the Commissioner of Workers’
Compensation.
TDI will provide the staff and facilities necessary to perform the
administrative duties (i.e., budget planning, purchasing, human resources,
and information systems) of the Division. HB 7 clarifies the mission of
the Division and sets out basic goals for the workers’ compensation system,
which include:
- Treating injured employees with dignity and respect;
- Providing a fair and accessible dispute resolution
process;
- Providing access to prompt, high quality medical care
within the statutory framework; and
- Providing services to facilitate an injured
employee’s return to work as soon as it is considered safe and
appropriate by the employee’s health care provider.
HB 7 removes the statutory designation of specific divisions within the
Division, allowing the Commissioner of Workers’ Compensation the flexibility
to modify the Division’s organizational structure as necessary to meet
performance goals. The Division will continue to provide current customer
service and dispute resolution services through regional offices.
To the extent determined feasible, the Division shall establish a single
point of contact for injured employees receiving services from the Division.
HB 7 requires the Division to provide incentives for overall compliance
and to link regulatory outcomes with performance-based oversight.
- At least biennially, the Division will assess the
performance of insurance
carriers and health care providers against regulatory goals established
by the Commissioner of Workers’ Compensation.
- Based on this assessment, insurance carriers and
health care providers will be placed into regulatory tiers based on
performance – poor performers, average performers, and consistently high
performers. The Division will then focus its regulatory oversight on
poor performers.
- The Commissioner of Workers’ Compensation will also
develop regulatory incentives designed to promote greater overall
compliance and performance, including modified penalties, self-audits,
or flexibility.
Creation of the Office of Injured Employee Counsel
(Chapter 404, Labor Code)
- HB 7 also creates a new state agency, the Office of
Injured Employee Counsel(OIEC), whose primary mission is to represent
the interests of injured employees in the workers’ compensation system.
- The OIEC will be administered by a Public
Counsel, appointed by the Governor no later than October 1, 2005.
- The OIEC is administratively attached to TDI and
TDI will provide the staff and facilities necessary to perform the
administrative duties (i.e.,budget planning, purchasing, human
resources, and information systems) of the OIEC.
- Duties of the OIEC include:
- Advocating on behalf of injured employees as a
class during rulemaking related to workers’ compensation;
- Providing ombudsman assistance to injured
employees during Division administrative dispute proceedings;
- Referring injured employees to local, state, and
federal financial assistance, rehabilitation and work placement
programs, and other social services;
- Identifying problems with the workers’
compensation system from the perspective of injured employees and
issuing a biennial report to the Governor, Lieutenant Governor,
Speaker of the House of Representatives and the legislature that
includes proposed legislative and regulatory recommendations to
address these problems; and
- Submitting a notice of injured employee rights
and responsibilities to TDI and the Division for adoption by both
the Commissioner of Insurance and the Commissioner of Workers’
Compensation.
- TWCC’s ombudsman program shall be transferred to the
OIEC by March 1, 2006.
- The Public Counsel shall adopt initial rules for the
OIEC by March 1, 2006.
Workers’ Compensation Research (Chapter 405, Labor
Code)
- HB 7 keeps the research function at TDI under the
direction of the Commissioner of Insurance and renames it the “Workers’
Compensation Research and Evaluation Group.”
- HB 7 also requires the Commissioner of Insurance to
adopt an annual research agenda for the Group. Under HB 7, the Group
must also produce a biennial report on the impact of networks on the
cost and quality of medical care and an annual report card comparing
workers’ compensation health care delivery networks certified by TDI.
Workers’ Compensation Health Care Networks (Chapter
1305, Insurance Code)
- Workers’ compensation insurance carriers, certified
self-insurers, groups of selfinsurers and governmental entities that
self-insure may elect to contract with or establish health care networks
certified by TDI in accordance with Chapter 1305, Insurance Code.
- The Commissioner of Insurance shall adopt rules
regarding the certification of workers’ compensation health care
networks by December 1, 2005.
- TDI will accept applications from networks
seeking certification beginning January 1, 2006.
- An insurance carrier may begin to offer medical
benefits through a network upon certification of the network by the
Commissioner of Insurance.
- If an employer contracts with an insurance carrier
that establishes or contracts with a certified network, the employer’s
employees will be required to obtain medical care for their work-related
injuries through the network if the employees live within the network
service area. However, the insurance carrier will be liable for approved
out-of-network referred care, emergency care, and health care for an
employee who does not live in the network service area.
- An injured employee, who lives in the network service
area, may choose a treating doctor from the list of doctors maintained
by the network. If an injured employee does not make an initial choice
within 14 days, the network will assign a treating doctor to the injured
employee. An injured employee who does not live within the network’s
service area would continue to choose a treating doctor from the
Division’s Approved Doctor’s List (ADL). However, an injured employee
may be liable for medical care that is related to the compensable injury
if that employee is required to seek care within a network and that
employee sees a nonnetwork provider without network approval.
- If an injured employee is dissatisfied with his or
her initial choice of treating doctor, the injured employee is entitled
to select another treating doctor from the network’s list of doctors. A
network cannot deny an injured employee’s initial request to change
treating doctors. However, any subsequent requests by an injured
employee to change treating doctors are subject to network approval.
- An injured employee may request that his or her
primary care provider under a group health HMO plan also serve as his
treating doctor if the primary care provider agrees to abide by the
network requirements.
- HB 7 also requires TDI to review and make
recommendations to the 80th Legislature on the possibility of allowing
injured employees to receive treatment from an employee’s primary care
provider under a Preferred Provider Organization (PPOs) plan.
- Under HB 7, a network may operate under its own
treatment guidelines and preauthorization requirements, although
treatment guidelines used by a network must meet minimum statutory
criteria. Treatment may not be denied solely because it is not
specifically addressed by the treatment guidelines used by the insurance
carrier or network.
- The network must ensure that its list of health care
providers includes an adequate number of treating doctors and
specialists, who are available and accessible to employees 24 hours a
day, seven days a week, within the network’s service area. There must be
sufficient numbers and types of health care providers to ensure choice,
access, and quality of care to injured employees.
- Pharmacy services are specifically excluded from
workers’ compensation networks. These services will continue to be
provided and paid in accordance with the closed formulary and pharmacy
fee guideline adopted by the Commissioner of Workers’ Compensation.
- An HMO or a PPO may be certified as a workers’
compensation health care network if they meet all the requirements.
- HB 7 also requires the Research Group at TDI to
publish an annual report card comparing workers’ compensation networks
on a variety of measures, including access to care, health-related
outcomes, return-to-work outcomes, employee satisfaction of care, and
health care costs and utilization of care.
Approved Doctor List (ADL) (§408.023, Labor Code)
- Retains the ADL and the associated requirements for
non-network doctors until 9/1/2007 (or an earlier date, if determined by
the Commissioner of Workers’ Compensation). Network doctors are not
required to be on the ADL.
- However, HB 7 requires doctors, including network
doctors, to comply with the Division’s financial disclosure and
impairment rating training and testing requirements.
Health Care Definitions (§401.001, Labor Code)
- “Health care reasonably required” is defined as care
that is clinically appropriate and considered effective for the
employee’s injury in accordance with evidence based medicine or practice
standards recognized in the medical community.
- “Evidenced-based medicine” is defined as the use of
current best quality scientific and medical evidence formulated from
credible scientific studies, including peer reviewed medical literature
and treatment and practice guidelines.
Medical Guidelines (§§ 408.052 and 413.011, Labor
Code)
- HB 7 allows insurance carriers to pay above or below
the Division’s fee guidelines, if the insurance carrier has a contract
with the provider and the contract contains a fee schedule.
- Under HB 7, the Commissioner of Workers’ Compensation
is required to adopt a pharmacy fee guideline as well as treatment and
return to work guidelines; however any treatment guidelines adopted must
be “evidence-based, scientifically valid and outcome-focused.”
- Medical treatment may not be denied solely because it
is not specifically addressed by the Division’s treatment guideline.
- The Commissioner of Workers’ Compensation may also
adopt disability management rules, including the use of treatment plans,
for non-network claims.
- The Division must study access to surgically
implanted, inserted, or otherwise applied devices and the reimbursement
rates. The Division is required to recommend any statutory changes
necessary to ensure appropriate access to these medical needs.
- HB 7 also gives the Commissioner of Workers’
Compensation the authority to identify areas of this state in which
access to health care providers is less available and to adopt
appropriate standards, guidelines, and rules regarding the delivery of
health care in those areas.
Preauthorization (§§408.0042 and 413.014, Labor Code)
- HB 7 adds physical and occupational therapy to the
list of medical services requiring preauthorization by statute.
- Upon request by an insurance carrier, an injured
employee must submit to a medical examination by the treating doctor to
define the compensable injury. Treatment for an injury or diagnosis that
is not accepted by the insurance carrier after the examination must be
preauthorized before treatment is rendered.
- HB 7 also clarifies that preauthorized treatments and
services are not subject to retrospective review of medical necessity.
- Workers’ compensation networks certified by TDI,
however, are not required to abide by the list of services required to
be preauthorized in the Labor Code or Division rules.
Pharmacy-Related Provisions (§§408.028 and 413.0111)
- HB 7 requires the Commissioner of Workers’
Compensation to adopt a closed formulary for prescription medications by
rule. The formulary must include an appeal process for treating doctors
to use if a determination is made and documented that a drug not on the
formulary is medically necessary.
- HB 7 also requires the Commissioner of Workers’
Compensation to adopt a fee schedule for pharmaceutical services. The
rules adopted must authorize pharmacies to use agents or assignees to
process claims and act on behalf of pharmacies.
- Since pharmacy services are specifically excluded
from WC networks under HB 7, the closed formulary and pharmacy fee
guideline adopted by the Commissioner of Workers’ Compensation would
also apply to network claims.
Pain Management (§408.032, Labor Code)
- HB 7 requires the Division to study the issue of
requiring accreditation of interdisciplinary pain rehabilitation
programs and facilities and report the findings to the legislature.
Peer Review Doctors (§408.0231, Labor Code)
- The Commissioner of Workers’ Compensation shall adopt
rules establishing quality standards and sanctions for peer review
doctors.
- HB 7 also requires peer review doctors to be
Texas-licensed.
Payment for Health Care (§408.027, Labor Code)
- Payments by an insurance carrier must be in
accordance with the Division’s established fee guidelines if the
treatment is not provided through a health care network and or at some
other contracted rate.
- A health care provider waives any right to payment
unless a medical bill is submitted to the insurance carrier on or before
the 95th day after the date of service.
- The insurance carrier must pay, reduce, deny or
determine to audit the health care provider’s claim not later than the
45th day after receipt.
- If there is to be an audit, the insurance carrier
must within 45 days of receipt, pay 85 percent of the fee guideline
amount or the contracted rate. The audit and any remaining payment must
be completed within 160 days of receipt. An insurance carrier’s failure
to meet these deadlines is an administrative violation. These provisions
are applicable to health care networks.
- If an injury is found to not be compensable, a
workers’ compensation insurance carrier may recover medical costs paid
from an accident or health benefit plan or other responsible person.
Likewise, if an injury is found to be compensable, an accident or health
benefit plan or other responsible person may recoup the amount paid for
health care services from the workers’ compensation carrier.
Electronic Medical Billing (§ 408.0251, Labor Code)
- The Commissioner of Workers’ Compensation shall adopt
rules requiring insurance carriers to accept medical bills from
providers electronically by January 1, 2006.
- On or after January 1, 2008, the Commissioner of
Workers’ Compensation may adopt rules requiring insurance carriers to
pay medical bills to providers electronically.
Medical Dispute Resolution (§413.031, Labor Code)
- A party to a medical dispute wanting to appeal a
review by an independent review organization (IRO) or by the Division
must seek judicial review directly rather than appeal the IRO decision
to the State Office of Administrative Hearings (SOAH).
- Effective September 1, 2005, SOAH may not accept
a medical dispute that remains unresolved for a hearing. A medical
dispute that is not pending for a hearing by SOAH on or before
August 31, 2005, is not subject to a SOAH hearing but may be
appealed to court for judicial review.
- An IRO decision must meet minimum standards
established by the Commissioner of Workers’ Compensation.
- The IRO decision is binding during the pendency of a
dispute.
- Insurance carriers will be required to pay for all
IRO reviews relating to preauthorization and retrospective medical
necessity disputes within a network. For medical disputes relating to
care provided outside of a network, the insurance carrier will continue
to pay for the IRO review in the case of a preauthorization dispute and
the non-prevailing party will continue to pay for the IRO review in the
case of retrospective medical necessity disputes.
- The Division has authority to monitor IROs and report
the results of monitoring activities to TDI quarterly.
- For in-network medical care, fee disputes will be
handled by the network’s internal complaint process, while fee disputes
for out-of-network medical care will continue to be resolved by the
Division. Any appeal of a Division fee dispute decision must be made
directly to district court rather than to SOAH. Medical Advisory
Committee
- HB 7 abolishes the Medical Advisory Committee (MAC)
effective September 1, 2005.
Return-to-Work Information and Assistance (§§413.023 –
413.025, Labor Code)
- The Division will provide information to employers
and employees about the benefits of early return to work and methods for
enhancing the ability to return to work.
- The Division will assist injured employees receiving
income benefits to return to work, including referring injured employees
to other employment assistance programs and initiating post-referral
contacts with injured employees.
- The Division will ensure return-to-work outcome data
is tracked by using data from the Division, the Texas Workforce
Commission (TWC), the Department of Assistive and Rehabilitative
Services (DARS), and insurance carriers.
Return-to-Work Pilot Program (§413.022, Labor Code)
- HB 7 creates a pilot return-to-work program for small
employers with workers’ compensation insurance, which provides grants
for up to $2,500 per employer to pay for workplace modification
initiatives that facilitate early return to work. This pilot, which
begins January 1, 2006 and expires September 1, 2009, is funded by
administrative penalties (up to $100,000 a year) collected by the
Division.
Case Management (§413.021, Labor Code)
- The insurance carrier must evaluate every compensable
injury that could result in lost time as early as practical to determine
if skilled case management is necessary to address return to work
issues. Case managers who are appropriately licensed to practice in this
State must be used to perform these evaluations. A claims adjuster may
not be used as a case manager.
Vocational Rehabilitation (§409.012, Labor Code)
- HB 7 requires the Division and the Department of
Assistive and Rehabilitative Services (DARS) to report to the
legislature by 8/1/2006 on cooperative actions
taken to improve access to and effectiveness of vocational
rehabilitation
programs.
Determination of Compensable Injury (§408.0042, Labor
Code)
- Upon request by an insurance carrier, the Division
shall require an injured employee to submit to a single examination with
the treating doctor to define the scope of the compensable injury. The
report will define the compensable injury after which the insurance
carrier will either accept the injuries and diagnoses listed in the
treating doctor’s report or dispute the specific injuries and diagnoses.
Treatment for an accepted diagnosis/injury may not be reviewed later for
compensability, but may be reviewed for medical necessity. Treatment for
an injury or diagnosis that is not accepted by the insurance carrier
must be preauthorized before treatment is rendered.
- For in-network medical care, HB 7 also requires
insurance carriers to notify a health care provider in writing if the
carrier decides to dispute the compensability of a claim. An
insurance carrier is prohibited from denying a medical bill on the basis
of compensability for services that were provided prior to the carrier’s
written notification to the provider. However, if the carrier
successfully contests the compensability of the claim, the carrier is
liable for a maximum of $7,000 in medical services.
Maximum Medical Improvement (MMI) and Impairment
Ratings (§§408.123-124, Labor Code)
- Once a treating doctor certifies MMI and assigns an
impairment rating, an injured employee shall receive written notice
about the employee’s entitlement to dispute the report.
- The Commissioner of Workers’ Compensation may adopt
subsequent editions of the AMA Guidelines by rule (currently the statute
requires the use of the fourth edition of the AMA Guidelines).
Required Medical Examinations (RMEs) (§408.004-.0041,
Labor Code)
- Insurance carriers may only request an RME prior to a
designated doctor examination in order to examine the appropriateness of
the health care received outside of a network. However, an insurance
carrier may continue to request an RME to examine issues relating to the
employee’s impairment rating or date of maximum medical improvement (MMI)
after a designated doctor’s examination, regardless of whether the
injured employee is receiving medical care in- or outside of a network.
- An injured employee may have a doctor of the
employee’s choice at an RME examination if the RME examination relates
to the employee’s impairment rating or MMI date. If the injured employee
is subject to a workers’ compensation health care network, the doctor
who attends the RME examination with the employee must be the employee’s
treating doctor.
Designated Doctor (§408.0041, Labor Code)
- HB 7 expands the list of issues that a designated
doctor may examine, including issues relating to the extent of the
employee’s injury, whether the employee’s disability is a direct result
of the compensable injury, the ability of the employee to return to
work, and similar issues.
- The report of the designated doctor still has
presumptive weight during Division benefit disputes and the Division
will base its determination on the designated doctor’s report unless the
preponderance (as opposed to the “great weight”) of other medical
evidence is to the contrary.
- Additionally, HB 7 requires that the insurance
carrier continue to pay benefits based on the designated doctor’s
opinion during the pendency of a dispute. However, the insurance carrier
may still unilaterally suspend Temporary Income Benefits (TIBs) if the
injured employee fails to attend a designated doctor exam without good
cause.
- A network doctor may not serve as a designated doctor
or perform an RME examination for an employee receiving medical care
through a network with which the doctor contracts or is employed.
- Rules regarding the changes in the Designated Doctor
and RME processes must be adopted on or before February 1, 2006.
State Average Weekly Wage (§408.047, Labor Code)
- The state average weekly wage (SAWW) from September
1, 2005 through September 30, 2006 is set at $540.
- On and after October 1, 2006 the state average wage
will be 88% of the average weekly wage in covered employment as computed
by the Texas Workforce Commission (TWC). By rule, the Commissioner of
Workers’ Compensation may increase this percentage up to 100%.
- As a result, the change in the SAWW will result in an
increase in the maximum and minimum income benefit amounts paid to
employees injured after October 1, 2006 by approximately 12 percent.
Income Benefit Retroactive Period (§408.082, Labor
Code)
- HB 7 reduces the amount of time an injured employee
must be off work before that employee may recoup income benefits for the
initial waiting period (i.e., the first 7 days of disability) from four
weeks to two weeks. The two-week period applies only to an injury that
occurs on or after September 1, 2005.
Supplemental Income Benefits (§408.1415, Labor Code)
- HB 7 clarifies the eligibility requirements for
Supplemental Income Benefits (SIBs) and requires the Commissioner of
Workers’ Compensation to adopt rules regarding the level of activity an
injured employee must have with the Texas Workforce Commission (TWC) and
the Department of Assistive and Rehabilitative Services (DARS), as well
as the number of job applications that must be submitted by an injured
employee each quarter to meet minimum worksearch requirements.
Benefit Dispute Resolution (Chapter 410, Labor Code)
- HB 7 requires that information that the Division
determines to be useful to parties in resolving disputes will be
published by the Division and made available to the parties when a
Benefit Review Conference (BRC) or Contested Case Hearing (CCH) is
scheduled.
- The Division may also hold BRCs telephonically by
agreement of the injured employee.
- HB 7 also requires any party requesting a BRC to
demonstrate to the Division any previous efforts that party made to
resolve the disputed issues before a BRC is scheduled by the Division.
- A Benefit Review Officer (BRO) must complete at least
40 hours of training in dispute resolution/mediation techniques.
- BRCs are limited to two per disputed issue, and the
BRC will become more of a true mediation session, wherein the BRO will
not make recommendations on the disputed issues nor issue interlocutory
orders to pay benefits; however, an interlocutory order can be issued by
other division staff.
- HB 7 also makes the Appeals Panel a single
three-member tribunal that can either reverse or remand a CCH decision
instead of several panels of administrative law judges. HB 7 also
requires the Appeals Panel to issue and maintain a precedent manual
composed of precedent-establishing benefit dispute decisions.
- The record of the CCH is admissible during judicial
review in accordance with Texas Rules of Evidence, as decided in
National Liability v. Allen, 15 S.W.3d 525.
Intoxication Presumption (§401.013, Labor Code)
- HB 7 sets up a rebuttable presumption that an
employee is intoxicated if the employee tests positive for a controlled
substance as defined by Section 481.002, Health and Safety Code, through
a blood test or urinalysis.
Carrier Single Point of Contact (§409.021, Labor Code)
- Each insurance carrier is required to establish a
single point of contact in the carrier’s office for an injured employee.
Exclusive Remedy (§408.001, Labor Code)
- A determination that an injury is not compensable
under Sections 406.032, 409.002, or 409.004 of the Labor Code (for
reasons such as the employee’s: intoxication or willful attempt to
injure himself; untimely notice to employer; or untimely filing of a
claim, etc.) does not adversely affect the exclusive remedy requirements
in the Labor Code.
Use of Post-Injury Liability Waivers by Nonsubscribing
Employers (§406.033, Labor Code)
- HB 7 places certain statutory limitations on the
validity of post-injury waivers signed by employees of nonsubscribers,
including prohibiting the signing of a waiver before the 10th business
day after the employee was injured; ensuring that an employee has
received a medical evaluation from a nonemergency doctor; and ensuring
that the waiver is voluntary and is clearly identifiable in any written
agreement.
Enforcement (Chapter 415, Labor Code)
- HB 7 removes the requirement that the state show that
a party committed a violation of the Act or rules “willfully or
intentionally” in order to assess administrative penalties. HB 7 also
removes the current classification system for administrative penalties
in the Act and aligns the enforcement structure of the Division with the
current enforcement structure of TDI by authorizing the Commissioner of
Workers’ Compensation to assess administrative penalties up to $25,000
per day per occurrence.
- HB 7 also makes it clear that an insurance carrier
commits an administrative violation if that carrier makes a statement
denying all future medical care for a compensable injury.
- Finally, HB 7 establishes civil and administrative
penalties for the deceptive use of words and symbols resembling the
Division’s, TDI’s, or a state agency’s name.
Fraud (§409.092, Labor Code)
- Allows the Division to share investigative material
that relates to a felony regarding workers’ compensation or involves
restitution with insurance carriers.
Health and Safety (Chapter 411, Labor Code)
- Inspection of insurance carriers for the adequacy of
accident prevention services is discretionary rather than being required
every two years.
- The hazardous employer and drug-free workplace
programs are eliminated, as is the requirement for carriers and the
agency to use “qualified” field safety representatives in providing
accident prevention services.
- The Division is to provide educational materials for
employees and employers relating to safe working conditions and
prohibited retaliation and on best practices for return-to-work programs
and workplace safety.
The University of Texas System (UT), Texas A&M
University System (A&M), and Political Subdivisions (Chapters 501-505, Labor
Code)
- HB 7 aligns the sick and annual leave provisions for
UT and A&M employees with similar provisions for other state employees
by clarifying that a employee in each of these programs may use their
accrued sick or annual leave in lieu of receiving Temporary Income
Benefits (TIBs). If an employee chooses to use sick leave, that employee
must first exhaust this leave before receiving TIBs. Once an employee’s
sick leave has been exhausted, that employee may then choose to use one
or more weeks of annual leave in lieu of receiving TIBs.
- HB 7 also requires political subdivisions to evaluate
whether it is feasible to establish or contract with a WC network that
is certified by TDI and, if feasible, to do so. If not feasible,
political subdivisions can exercise other options laid out in Chapter
504, Labor Code, including direct contracting with health care
providers. However, political subdivisions will still be subject to the
same data reporting and report card requirements as other workers’
compensation health care delivery networks certified by TDI.
Insurance Rates and Premiums (Articles 5.55-5.60A,
Insurance Code)
- The Commissioner of Insurance shall report (not later
than December 1, 2006) to the Governor, Lieutenant Governor, Speaker of
the House of Representatives and members of the legislature each
even-numbered year regarding the effect HB 7 has had on the
affordability and availability of workers’ compensation insurance for
employers.
- Insurance carriers are required to file their
underwriting guidelines with TDI.
- The Commissioner of Insurance will conduct a public
hearing biennially (beginning not later than December 1, 2008) to review
workers’ compensation insurance rates. The Commissioner of Insurance by
rule may mandate rate or premium changes if a determination is made that
rates or premiums charged do not meet established rating standards.
|
