It is springtime and an exciting time for Texas workers’ compensation! The Texas Department of Insurance, Division of Workers’ Compensation (DWC) has adopted amendments to the designated doctor rules and more are planned. The Division continues to focus on compliance. The Texas Legislature is still in session and it appears employer participation in the workers’ compensation system continues to increase. BAJB is proud and privileged to provide this workers’ compensation update. As always, if we can be of any assistance, please let us know.
DWC Adopts Amendments to the Designated Doctor Rules
In an effort to improve the designated doctor program, the Division has amended its designated doctor rules. The amendments address how the designated doctor program operates and are designed to encourage participation in the designated doctor program and to allow better access to certain types of specialized examinations. The amendments do not address billing or reimbursement; however, the Division is in the process of updating rules regarding billing and reimbursement.
The amended rules will be effective on April 30, 2023. However, two sections have specific effective dates:
- For designated doctor examinations on or after June 5, 2023, amended Rule 127.10 provides that a designated doctor may provide multiple certifications of maximum medical improvement and impairment ratings only when the Division directs.
- For designated doctor examination assignments made on or after June 5, 2023, amended Rule 127.130 updates qualification standards for designated doctor examinations.
You may find the amended rules at https://www.tdi.texas.gov/wc/rules/2023rules.html. The Division is also considering updates to three forms that relate to the rules: DWC Form-032 (Request for Designated Doctor Examination); DWC Form-067 (Designated Doctor Certification Application); and DWC Form-068 (Designated Doctor Examination Data Report).
BAJB will provide educational training regarding the new Rules, beginning with a one-hour CE virtual seminar on April 28, 2023 at 12:00 p.m. If you are interested in coordinating training or our virtual seminar, (space is limited), please contact Bob Graves (rgraves@bajb.com) or our seminar coordinator, Frances Ruby (fruby@bajb.com).
Compliance in Workers’ Compensation – “I Fought the Law and the Law Won!”[1]
The Division is tasked with enforcing compliance with the Texas Workers’ Compensation Act (TWCA). The Division does so by investigating complaints and conducting audits as well as performance based oversight (PBO) assessments. If the Division finds that there has been a violation of the TWCA, it may assess an administrative violation and monetary penalty. Such penalties may be up to $25,000 per day, per occurrence. In assessing a penalty, the Division is required to consider:
- the seriousness of the violation, including the nature, circumstances, consequences, extent, and gravity of the prohibited act
- the history and extent of previous administrative violations
- the demonstrated good faith of the violator, including actions taken to rectify the consequences of the prohibited act
- the penalty necessary to deter future violations
- whether the administrative violation has negative impact on the delivery of benefits to an injured employee
- the history of compliance with electronic data interchange requirements
- other matters that justice may require, and
- to the extent reasonable, the economic benefit resulting from the prohibited act. Lab. Code § 415.021.
At the March 22, 2023 Insurance Carrier Quarterly Meeting, Debra Knight, Deputy Commissioner of Compliance and Investigations, explained that, over the past year, there has been approximately 80% turnover in personnel working in Enforcement. However, Enforcement is now fully staffed with eight attorneys and three staff members.
A review of the consent orders posted on the Division’s website reflects that, so far, in 2023, the Division has issued 65 consent orders against insurance carriers for a total of over $727,000 in penalties. The most common administrative violations include the failure to timely pay temporary income benefits (TIBs) and death benefits. The penalties provided for in the orders range from $700 (failure to timely act on medical bill) to $97,200 (multiple violations including failure to comply with an order, failure to pay TIBs).
Regarding health care providers, the Division has issued six consent orders against health care providers for a total of $19,000 in penalties. The most common violation was a provider improperly pursuing a claim against an injured employee. The penalties provided for in the orders ranged from $1000 (improperly pursuing a claim against an injured employee) to $8,000 (rendering unnecessary health care beyond the scope of practice, incorrect DWC-73 and incorrect billing).
The Division has issued one administrative violation against an employer for failing to timely submit a wage statement. The penalty was $3,000.
If you are interested in a spreadsheet outlining this year’s consent orders and penalties, please contact Bob Graves (rgraves@bajb.com).
The Legislative Session Continues
The Texas Legislature meets every two years and the Texas 88th Legislative Session remains in full swing. March 10, 2023 was the deadline for bill filing. Approximately 83,000 bills have been filed this legislative session. May 29, 2023 will be the end of the 2023 legislative regular session. There are a number of workers’ compensation related bills currently pending including bills that would:
- exclude certain medical services performed to determine the appropriate level of workers’ compensation benefits from sales and used taxes
- make the working papers and electronic communications of administrative law judges and appeals judges in the Texas workers’ compensation system confidential
- expand eligibility of certain benefits for first responders, expand presumption laws regarding first responders and broaden the definition of first responders
- allow physical therapists to treat without referrals and broadening the roles of other health providers, such as physician assistants and advanced practice nurses
- provide reimbursement for a doctor providing a causation narrative as well as increased reimbursement for designated doctors, including reimbursement for designated doctors when the injured employee fails to attend an examination
- establish a combined coverage policy where a workers’ compensation carrier could contract with a health insurer to offer a packaged plan
- change the definition of “course and scope of employment” to exclude injuries that occur somewhere other than the worksite, define the course and scope of employment for state employees working remotely as well as police officers traveling to and from work
- allow contested case hearings in the workers’ compensation system to take place virtually
Legislative sessions are fluid. Bills are often amended and, although numerous bills are proposed, a relatively small portion are passed and become law. If you have any questions regarding the Legislative Session, please feel free to contact us.
Employer Participation in the Texas Workers’ Compensation System
The Workers’ Compensation Research and Evaluation Group recently published its Employer Participation in the Texas Workers’ Compensation System. Workers’ compensation insurance is not mandatory in Texas. The Research and Evaluation Group’s report found that the employer subscription rate increased to 75% in 2022 from 72% in 2018. The share of employees that work for subscribers increased to 83%, the highest in 12 years. Subscription rates among small employers decreased while staying stable for large employers.
The most common reason given by employers for not subscribing to workers’ compensation insurance was that the employer had too few employees. Thirty percent of nonsubscriber employers provided an alternative occupational benefit plan.
COVID-19 Update
In March, the Research and Evaluation Group published an updated report of COVID-19 in the Texas Workers’ Compensation System. The report found that insurance carriers have reported nearly 98,000 COVID-19 claims and 468 fatalities. A little more than half of those claims and fatalities involve first responders or correctional officers.
Insurance carriers have denied less than half (38%) of COVID-19 positive test claims. Despite more than 25,000 denials of COVID-19 claims with positive tests or diagnoses, there were only 239 disputes filed with the Division. A copy of the Research and Evaluation Group’s report may be found at https://www.tdi.texas.gov/wc/information/documents/covid19txwc0323.pdf.
At the March 22, 2023 Insurance Carrier Quarterly Meeting, Kimberly Donovan, Deputy Commissioner of Operations and External Relations, indicated that it is anticipated that the last COVID-19 data call will occur in April 2023.
2023 DWC Texas Workers’ Compensation Conference
The Division’s Texas Workers’ Compensation Conference will take place
July 10-12, 2023 in Austin Texas. The theme of the conference is “Basics and Beyond.” Registration is open. For more information regarding the conference, go to:
https://www.tdi.texas.gov/wc/events/wcconference.html.
If we can be of any assistance, please let us know.
[1] From the song “I Fought the Law,” by Sonny Curtis. Curtis, from El Paso, was a member of The Crickets (Buddy Holly’s group). The Crickets recorded it shortly after Buddy Holly’s death in 1959 and released it on their 1960 album In Style with the Crickets.