Bill Text: TX HB2605 | 2011-2012 | 82nd Legislature | Comm Sub
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relating to the continuation and functions of the division of workers' compensation of the Texas Department of Insurance.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Passed) 2011-06-17 - Effective on 9/1/11 [HB2605 Detail]
Download: Texas-2011-HB2605-Comm_Sub.html
Bill Title: Relating to the continuation and functions of the division of workers' compensation of the Texas Department of Insurance.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Passed) 2011-06-17 - Effective on 9/1/11 [HB2605 Detail]
Download: Texas-2011-HB2605-Comm_Sub.html
82R19571 JSC-D | |||
By: Taylor of Galveston | H.B. No. 2605 | ||
Substitute the following for H.B. No. 2605: | |||
By: Cook | C.S.H.B. No. 2605 |
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relating to the continuation and functions of the division of | ||
workers' compensation of the Texas Department of Insurance. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Section 31.004(b), Insurance Code, is amended to | ||
read as follows: | ||
(b) Unless continued as provided by Chapter 325, Government | ||
Code, the duties of the division of workers' compensation of the | ||
Texas Department of Insurance under Title 5, Labor Code, expire | ||
September 1, 2017 [ |
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legislature. | ||
SECTION 2. Sections 1305.355(e), (f), and (g), Insurance | ||
Code, are amended to read as follows: | ||
(e) A party to a medical dispute that remains unresolved | ||
after a review under this section is entitled to a hearing and [ |
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1305.356. The division of workers' compensation and the department | ||
are not considered to be parties to the medical dispute. | ||
(f) A determination of an independent review organization | ||
related to a request for preauthorization or concurrent review is | ||
binding during the pendency of a dispute [ |
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carrier and network shall comply with the determination. | ||
(g) If a contested case hearing or judicial review is not | ||
sought under Section 1305.356 [ |
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network shall comply with the independent review organization's | ||
determination. | ||
SECTION 3. Subchapter H, Chapter 1305, Insurance Code, is | ||
amended by adding Section 1305.356 to read as follows: | ||
Sec. 1305.356. CONTESTED CASE HEARING ON AND JUDICIAL | ||
REVIEW OF INDEPENDENT REVIEW. (a) A party to a medical dispute | ||
that remains unresolved after a review under Section 1305.355 is | ||
entitled to a contested case hearing. A hearing under this | ||
subsection shall be conducted by the department's division of | ||
workers' compensation in the same manner as a hearing conducted | ||
under Section 413.0311, Labor Code. | ||
(b) At a contested case hearing held under Subsection (a), | ||
the hearing officer conducting the hearing shall consider | ||
evidence-based treatment guidelines adopted by the network under | ||
Section 1305.304. | ||
(c) A party that has exhausted all administrative remedies | ||
under Subsection (a) and is aggrieved by a final decision of the | ||
department's division of workers' compensation may seek judicial | ||
review of the decision. | ||
(d) Judicial review under Subsection (c) shall be conducted | ||
in the manner provided for judicial review of a contested case under | ||
Subchapter G, Chapter 2001, Government Code, and is governed by the | ||
substantial evidence rule. | ||
SECTION 4. Section 2051.151(e), Insurance Code, is amended | ||
to read as follows: | ||
(e) An insurance company that fails to comply with this | ||
section commits an [ |
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Subtitle A, Title 5, Labor Code. | ||
SECTION 5. Section 2053.206(a), Insurance Code, is amended | ||
to read as follows: | ||
(a) A person commits an [ |
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under Subtitle A, Title 5, Labor Code, if the person engages in | ||
conduct that violates this subchapter. | ||
SECTION 6. Section 402.023, Labor Code, is amended by | ||
adding Subsection (c-1) to read as follows: | ||
(c-1) The division shall adopt a policy outlining the | ||
division's complaint process from receipt of the initial complaint | ||
to the complaint's disposition. | ||
SECTION 7. Subchapter B, Chapter 402, Labor Code, is | ||
amended by adding Section 402.0231 to read as follows: | ||
Sec. 402.0231. DOCUMENTATION AND ANALYSIS OF COMPLAINTS. | ||
(a) The division shall develop procedures to formally document and | ||
analyze complaints received by the division. | ||
(b) The division shall compile detailed statistics on all | ||
complaints received and analyze complaint information trends, | ||
including: | ||
(1) the number of complaints; | ||
(2) the source of each complaint; | ||
(3) the types of complaints; | ||
(4) the length of time from the receipt of the | ||
complaint to its disposition; and | ||
(5) the disposition of complaints. | ||
(c) The division shall further analyze the information | ||
compiled under Subsection (b) by field office and by program. | ||
(d) The division shall report the information compiled and | ||
analyzed under Subsections (b) and (c) to the commissioner at | ||
regular intervals. | ||
SECTION 8. Section 402.073, Labor Code, is amended by | ||
amending Subsections (b) and (c) and adding Subsections (d) and (e) | ||
to read as follows: | ||
(b) In a case in which a hearing is conducted by the State | ||
Office of Administrative Hearings under Section 413.031 or [ |
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413.055, [ |
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the hearing for the State Office of Administrative Hearings shall | ||
enter the final decision in the case after completion of the | ||
hearing. | ||
(c) In a case in which a hearing is conducted in conjunction | ||
with Section 402.072, 407.046, [ |
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other cases under this subtitle that are not subject to Subsection | ||
(b), the administrative law judge who conducts the hearing for the | ||
State Office of Administrative Hearings shall propose a decision to | ||
the commissioner for final consideration and decision by the | ||
commissioner. | ||
(d) The notice of the commissioner's order must include a | ||
statement of the right of the person to judicial review of the | ||
order. | ||
(e) In issuing an order under this section, the commissioner | ||
shall comply with the requirements applicable to a state agency | ||
under Section 2001.058, Government Code. | ||
SECTION 9. Section 403.001(a), Labor Code, is amended to | ||
read as follows: | ||
(a) Except as provided by Sections 403.006, [ |
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and 403.008, or as otherwise provided by law, money collected under | ||
this subtitle, including [ |
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deposits for purchase of services, shall be deposited in the | ||
general revenue fund of the state treasury to the credit of the | ||
Texas Department of Insurance operating account. | ||
SECTION 10. Chapter 403, Labor Code, is amended by adding | ||
Section 403.008 to read as follows: | ||
Sec. 403.008. DEPOSIT OF ADMINISTRATIVE PENALTIES. | ||
Administrative penalties collected under this subtitle shall be | ||
deposited in the general revenue fund. | ||
SECTION 11. Section 408.0041, Labor Code, is amended by | ||
amending Subsection (b) and adding Subsection (b-1) to read as | ||
follows: | ||
(b) Except as provided by Section 408.1225(f), a [ |
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examination requested under Subsection (a) shall be performed by | ||
the next available doctor on the division's list of certified | ||
designated doctors whose credentials are appropriate for the area | ||
of the body affected by the injury [ |
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injured employee's diagnosis [ |
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commissioner rule. [ |
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shall assign a designated doctor not later than the 10th day after | ||
the date on which the request under Subsection (a) is approved, and | ||
the examination must be conducted not later than the 21st day after | ||
the date on which the commissioner issues the order under | ||
Subsection (a). An examination under this section may not be | ||
conducted more frequently than every 60 days, unless good cause for | ||
more frequent examinations exists, as defined by commissioner | ||
rules. | ||
(b-1) A designated doctor, other than a chiropractor, is | ||
subject to Section 408.0043. A designated doctor who is a | ||
chiropractor is subject to Section 408.0045. To the extent of a | ||
conflict between this section and Section 408.0043 or 408.0045, | ||
this section controls. | ||
SECTION 12. Section 408.022, Labor Code, is amended by | ||
amending Subsections (b) and (c) and adding Subsections (c-1) and | ||
(c-2) to read as follows: | ||
(b) If an employee is dissatisfied with the initial choice | ||
of a doctor [ |
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insurance carrier [ |
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alternate doctor. The notification must be in writing stating the | ||
reasons for the change, except notification may be by telephone | ||
when a medical necessity exists for immediate change. | ||
(c) The commissioner shall prescribe criteria to be used by | ||
an insurance carrier [ |
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authority to select an alternate doctor. The criteria may include: | ||
(1) whether treatment by the current doctor is | ||
medically inappropriate; | ||
(2) the professional reputation of the doctor; | ||
(3) whether the employee is receiving appropriate | ||
medical care to reach maximum medical improvement; and | ||
(4) whether a conflict exists between the employee and | ||
the doctor to the extent that the doctor-patient relationship is | ||
jeopardized or impaired. | ||
(c-1) The employee may dispute a denial of authority to | ||
select an alternate doctor. A dispute under this subsection is | ||
subject to Chapter 410. | ||
(c-2) The commissioner shall adopt rules to implement this | ||
section, including procedures for disputing a denial of authority. | ||
SECTION 13. Section 408.085, Labor Code, is amended to read | ||
as follows: | ||
Sec. 408.085. ADVANCE OF BENEFITS FOR HARDSHIP. (a) If | ||
there is a likelihood that income benefits will be paid, the | ||
insurance carrier [ |
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financial hardship advances as provided by this subtitle against | ||
the amount of income benefits to which the employee may be entitled. | ||
An advance may be granted [ |
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attains maximum medical improvement. [ |
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(b) An employee must apply to the insurance carrier | ||
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The application must describe the hardship that is the grounds for | ||
the advance. | ||
(c) An advance under this section may not exceed an amount | ||
equal to four times the maximum weekly benefit for temporary income | ||
benefits as computed in Section 408.061. An insurance carrier [ |
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particular employee based on the same injury. | ||
(d) An insurance carrier [ |
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advance to an employee who is receiving, on the date of the | ||
application under Subsection (b), at least 90 percent of the | ||
employee's net preinjury wages under Section 408.003 or 408.129. | ||
(e) The employee may dispute a denial or the amount of an | ||
advance of benefits. A dispute under this subsection is subject to | ||
Chapter 410. | ||
(f) The commissioner shall adopt rules to implement this | ||
section, including procedures for requesting an advance of benefits | ||
and disputing the denial or the amount of an advance of benefits. | ||
SECTION 14. Sections 408.104(a) and (b), Labor Code, are | ||
amended to read as follows: | ||
(a) On application by [ |
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insurance carrier[ |
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104-week period described by Section 401.011(30)(B) if the employee | ||
has had spinal surgery, or has been approved for spinal surgery | ||
under Section 408.026 and commissioner rules, within 12 weeks | ||
before the expiration of the 104-week period. If the insurance | ||
carrier grants an extension [ |
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section, the insurance carrier [ |
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period for maximum medical improvement to a date certain, based on | ||
medical evidence presented to the insurance carrier | ||
[ |
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(b) The [ |
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dispute the disposition of an application for extension made under | ||
this section. A dispute under this subsection is subject to Chapter | ||
410. | ||
SECTION 15. Section 408.1225, Labor Code, is amended by | ||
amending Subsections (a), (b), and (e) and adding Subsections | ||
(a-1), (a-2), (a-3), (a-4), (a-5), and (f) to read as follows: | ||
(a) To be eligible to serve as a designated doctor, a doctor | ||
must maintain an active certification by the division [ |
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(a-1) The commissioner by rule shall develop a process for | ||
the certification of a designated doctor. | ||
(a-2) The rules adopted by the commissioner under | ||
Subsection (a-1) must: | ||
(1) require the division to evaluate the qualification | ||
of designated doctors for certification using eligibility | ||
requirements, including: | ||
(A) educational experience; | ||
(B) previous training; and | ||
(C) demonstrated ability to perform the specific | ||
designated doctor duties described by Section 408.0041; and | ||
(2) require standard training and testing to be | ||
completed in accordance with policies and guidelines developed by | ||
the division. | ||
(a-3) The division shall develop guidelines for | ||
certification training programs for certification of a designated | ||
doctor under Subsection (a-1) to ensure a designated doctor's | ||
competency and continued competency in providing assessments, | ||
including: | ||
(1) a standard curriculum; | ||
(2) standard course materials; and | ||
(3) testing criteria. | ||
(a-4) The division shall develop and implement a procedure | ||
to periodically review and update the guidelines developed under | ||
Subsection (a-3). | ||
(a-5) The division may authorize an independent training | ||
and testing provider to conduct the certification program for the | ||
division under the guidelines developed under Subsection (a-3). | ||
(b) The commissioner shall ensure the quality of designated | ||
doctor decisions and reviews through active monitoring of the | ||
decisions and reviews, and may take action as necessary to: | ||
(1) restrict the participation of a designated doctor; | ||
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(2) deny renewal of [ |
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(3) revoke a designated doctor's certification under | ||
Section 413.044 [ |
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(e) A designated doctor, other than a chiropractor, is | ||
subject to Section 408.0043. A designated doctor who is a | ||
chiropractor is subject to Section 408.0045. To the extent of a | ||
conflict between this section and Section 408.0043 or 408.0045, | ||
this section controls. | ||
(f) A designated doctor shall continue providing services | ||
related to a case assigned to the designated doctor, including | ||
performing subsequent examinations or acting as a resource for | ||
division disputes, unless the division authorizes the designated | ||
doctor to discontinue providing services. The commissioner by rule | ||
shall prescribe the circumstances under which a designated doctor | ||
is permitted to discontinue providing services, including: | ||
(1) the doctor decides to stop practicing in the | ||
workers' compensation system; or | ||
(2) the doctor relocates the doctor's residence or | ||
practice. | ||
SECTION 16. Section 408.129, Labor Code, is amended by | ||
amending Subsections (a), (b), and (d) and adding Subsection (e) to | ||
read as follows: | ||
(a) On approval by an insurance carrier [ |
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of a written request received from an employee, the [ |
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carrier shall accelerate the payment of impairment income benefits | ||
to the employee. The accelerated payment may not exceed a rate of | ||
payment equal to that of the employee's net preinjury wage. | ||
(b) An insurance carrier [ |
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the request and accelerate [ |
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if the carrier [ |
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(1) required to relieve hardship; and | ||
(2) in the overall best interest of the employee. | ||
(d) The employee may dispute a denial or the amount of an | ||
acceleration of benefits. A dispute under this subsection is | ||
subject to Chapter 410. | ||
(e) The commissioner shall adopt rules [ |
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requesting an acceleration of benefits and disputing the denial or | ||
the amount of an acceleration of benefits. | ||
SECTION 17. Section 408.141, Labor Code, is amended to read | ||
as follows: | ||
Sec. 408.141. AWARD OF SUPPLEMENTAL INCOME BENEFITS. An | ||
award of a supplemental income benefit[ |
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subchapter. | ||
SECTION 18. Section 408.1415, Labor Code, is amended by | ||
amending Subsection (a) and adding Subsections (d) and (e) to read | ||
as follows: | ||
(a) The commissioner by rule shall adopt compliance | ||
standards for supplemental income benefit recipients that require | ||
each recipient to demonstrate an active effort to obtain | ||
employment, including [ |
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(1) active participation in a vocational | ||
rehabilitation program conducted by the Department of Assistive and | ||
Rehabilitative Services or a private vocational rehabilitation | ||
provider; | ||
(2) active participation in work search efforts | ||
conducted through the Texas Workforce Commission; or | ||
(3) active work search efforts documented by job | ||
applications submitted by the recipient. | ||
(d) To be eligible to receive supplemental income benefits | ||
under this subchapter, a recipient must provide evidence | ||
satisfactory to the insurance carrier that the recipient has | ||
complied with the standards adopted by the commissioner under | ||
Subsection (a). | ||
(e) The employee may dispute a denial of supplemental income | ||
benefits by an insurance carrier under this section. A dispute | ||
under this subsection is subject to Chapter 410. The commissioner | ||
by rule shall adopt procedures for disputing the denial of | ||
benefits. | ||
SECTION 19. Section 408.143(a), Labor Code, is amended to | ||
read as follows: | ||
(a) An [ |
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income benefits must file a statement with the insurance carrier | ||
stating: | ||
(1) that the employee has earned less than 80 percent | ||
of the employee's average weekly wage as a direct result of the | ||
employee's impairment; | ||
(2) the amount of wages the employee earned in the | ||
filing period provided by Subsection (b); and | ||
(3) that the employee has complied with the | ||
requirements adopted under Section 408.1415. | ||
SECTION 20. Section 408.147, Labor Code, is amended to read | ||
as follows: | ||
Sec. 408.147. CONTEST OF SUPPLEMENTAL INCOME BENEFITS BY | ||
INSURANCE CARRIER; ATTORNEY'S FEES. [ |
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[ |
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entitlement [ |
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dispute regarding the amount of supplemental income benefits due | ||
and the employee prevails on any disputed issue, the insurance | ||
carrier is liable for reasonable and necessary attorney's fees | ||
incurred by the employee as a result of the [ |
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dispute and for supplemental income benefits accrued but not paid | ||
and interest on that amount, according to Section 408.064. | ||
Attorney's fees awarded under this section [ |
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subject to Sections 408.221(b), (f), and (i). | ||
SECTION 21. Section 408.149(b), Labor Code, is amended to | ||
read as follows: | ||
(b) Either party may request a benefit review conference to | ||
contest a determination of the commissioner at any time[ |
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SECTION 22. Section 408.151(a), Labor Code, is amended to | ||
read as follows: | ||
(a) On or after the second anniversary of the date the | ||
employee is initially awarded [ |
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require an employee who is receiving supplemental income benefits | ||
to submit to a medical examination more than annually if, in the | ||
preceding year, the employee's medical condition resulting from the | ||
compensable injury has not improved sufficiently to allow the | ||
employee to return to work. | ||
SECTION 23. Section 408.221(b), Labor Code, is amended to | ||
read as follows: | ||
(b) Except as otherwise provided, an attorney's fee under | ||
this section is based on the attorney's time and expenses according | ||
to written evidence presented to the division or court. Except as | ||
provided by Subsection (c) or Section 408.147 [ |
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attorney's fee shall be paid from the claimant's recovery. | ||
SECTION 24. Section 409.021(e), Labor Code, is amended to | ||
read as follows: | ||
(e) An insurance carrier commits an administrative [ |
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violation if the insurance carrier does not initiate payments or | ||
file a notice of refusal as required by this section. [ |
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SECTION 25. Section 410.023, Labor Code, is amended by | ||
amending Subsection (b) and adding Subsections (c) and (d) to read | ||
as follows: | ||
(b) The division shall require the party requesting the | ||
benefit review conference to provide documentation of efforts made | ||
to resolve the disputed issues before the request was submitted. | ||
(c) The commissioner by rule shall: | ||
(1) adopt guidelines regarding the type of information | ||
necessary to satisfy the requirements of Subsection (b); and | ||
(2) establish a process through which the division | ||
evaluates the sufficiency of the documentation provided under | ||
Subsection (b) [ |
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(d) The division may deny a request for a benefit review | ||
conference if the party requesting the benefit review conference | ||
does not provide the documentation required under Subsection (b). | ||
SECTION 26. Section 410.028, Labor Code, is amended to read | ||
as follows: | ||
Sec. 410.028. FAILURE TO ATTEND; ADMINISTRATIVE VIOLATION. | ||
(a) A scheduled benefit review conference shall be conducted even | ||
though a party fails to attend unless the benefit review officer | ||
determines that good cause, as defined by commissioner rule, exists | ||
to reschedule the conference. | ||
(b) If a party to a benefit review conference under Section | ||
410.023 requests that the benefit review conference be rescheduled | ||
under this section, the party must submit a request in the same | ||
manner as an initial request under Section 410.023. The division | ||
shall evaluate a request for a rescheduled benefit review | ||
conference received under this section in the same manner as an | ||
initial request received under Section 410.023. | ||
(c) If a [ |
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rescheduled in the time required by commissioner rule or fails to | ||
attend a benefit review conference without good cause as defined | ||
[ |
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entitlement to attend a benefit review conference on the issue in | ||
dispute, unless a [ |
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schedule an additional benefit review conference under Section | ||
410.026(b). | ||
(d) The commissioner shall adopt rules necessary to | ||
implement and enforce this section, including rules that: | ||
(1) define good cause; and | ||
(2) establish deadlines for requesting that a benefit | ||
review conference be rescheduled under Subsection (b). | ||
SECTION 27. Section 410.203(b), Labor Code, is amended to | ||
read as follows: | ||
(b) The appeals panel may: | ||
(1) reverse the decision of the hearings officer and | ||
render a new decision; [ |
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(2) reverse the decision of the hearings officer and | ||
remand the case to the hearing officer for further consideration | ||
and development of evidence; or | ||
(3) affirm the decision of the hearings officer in a | ||
case described by Section 410.204(a-1). | ||
SECTION 28. Section 410.204, Labor Code, is amended by | ||
amending Subsection (a) and adding Subsection (a-1) to read as | ||
follows: | ||
(a) The appeals panel shall review each request and issue a | ||
written decision on each reversed or remanded case. The appeals | ||
panel may issue a written decision on an affirmed case as described | ||
by Subsection (a-1). The decision must be in writing and shall be | ||
issued not later than the 45th day after the date on which the | ||
written response to the request for appeal is filed. The appeals | ||
panel shall file a copy of the decision with the commissioner. | ||
(a-1) An appeals panel may only issue a written decision in | ||
a case in which the panel affirms the decision of a hearings officer | ||
if the case: | ||
(1) is a case of first impression; | ||
(2) involves a recent change in law; or | ||
(3) involves errors at the contested case hearing that | ||
require correction but do not affect the outcome of the hearing, | ||
including: | ||
(A) findings of fact for which insufficient | ||
evidence exists; | ||
(B) incorrect conclusions of law; | ||
(C) findings of fact or conclusions of law | ||
regarding matters that were not properly before the hearings | ||
officer; and | ||
(D) legal errors not otherwise described by this | ||
subdivision. | ||
SECTION 29. Sections 413.031(k) and (k-1), Labor Code, are | ||
amended to read as follows: | ||
(k) A party to a medical dispute [ |
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a review of the medical service under this section is entitled to a | ||
hearing under Section 413.0311 or 413.0312, as applicable. [ |
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(k-1) A party who has exhausted all administrative remedies | ||
described by [ |
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decision of the division or the State Office of Administrative | ||
Hearings may seek judicial review of the decision. Judicial review | ||
under this subsection shall be conducted in the manner provided for | ||
judicial review of a contested case under Subchapter G, Chapter | ||
2001, Government Code. | ||
SECTION 30. The heading to Section 413.0311, Labor Code, is | ||
amended to read as follows: | ||
Sec. 413.0311. REVIEW OF [ |
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DISPUTES; CONTESTED CASE HEARING. | ||
SECTION 31. Section 413.0311(a), Labor Code, is amended to | ||
read as follows: | ||
(a) This section applies only to [ |
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decision regarding determination of the [ |
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necessity for a health care service [ |
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SECTION 32. Subchapter C, Chapter 413, Labor Code, is | ||
amended by adding Section 413.0312 to read as follows: | ||
Sec. 413.0312. REVIEW OF MEDICAL FEE DISPUTES; BENEFIT | ||
REVIEW CONFERENCE. (a) This section applies only to a medical fee | ||
dispute that remains unresolved after any applicable review under | ||
Sections 413.031(b) through (i). | ||
(b) Subject to Subsection (e), a party to a medical fee | ||
dispute described by Subsection (a) must adjudicate the dispute in | ||
the manner required by Subchapter B, Chapter 410. | ||
(c) At a benefit review conference conducted under this | ||
section, the parties to the dispute may not resolve the dispute by | ||
negotiating fees that are inconsistent with any applicable fee | ||
guidelines adopted by the commissioner. | ||
(d) If issues remain unresolved after a benefit review | ||
conference, the parties may elect to engage in arbitration as | ||
provided by Section 410.104. | ||
(e) If arbitration is not elected as described by Subsection | ||
(d), a party to a medical fee dispute described by Subsection (a) is | ||
entitled to a contested case hearing. A hearing under this | ||
subsection shall be conducted by the State Office of Administrative | ||
Hearings in the manner provided for a contested case under Chapter | ||
2001, Government Code. | ||
(f) The commissioner or the division may participate in a | ||
contested case hearing conducted under Subsection (e) if the | ||
hearing involves the interpretation of fee guidelines adopted by | ||
the commissioner. The division and the department are not | ||
considered to be parties to the medical fee dispute for purposes of | ||
this section. | ||
(g) The cost of the contested case hearing shall be paid by | ||
the nonprevailing party. | ||
SECTION 33. Section 413.044(b), Labor Code, is amended to | ||
read as follows: | ||
(b) Sanctions imposed under Subsection (a) may include: | ||
(1) revocation of certification for a designated | ||
doctor on [ |
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designated doctors; or | ||
(2) restrictions on the reviews made by the person as a | ||
designated doctor. | ||
SECTION 34. Section 413.0512, Labor Code, is amended by | ||
amending Subsections (b), (c), (d), (e), and (f) and adding | ||
Subsections (g) and (h) to read as follows: | ||
(b) The agencies that regulate health professionals who are | ||
licensed or otherwise authorized to practice a health profession | ||
under Title 3, Occupations Code, and who are involved in the | ||
provision of health care as part of the workers' compensation | ||
system in this state [ |
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health care providers [ |
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otherwise regulated by those agencies who have demonstrated | ||
experience in workers' compensation or utilization review. The | ||
medical advisor shall consider appointing some of the members of | ||
the medical quality review panel from the names on those lists and, | ||
when appointing members of the medical quality review panel, shall | ||
select specialists from various health care specialty fields to | ||
serve on the panel to ensure that the membership of the panel has | ||
expertise in a wide variety of health care specialty fields. The | ||
medical advisor shall also consider nominations for the panel made | ||
by labor, business, and insurance organizations. | ||
(c) The medical quality review panel shall recommend to the | ||
medical advisor: | ||
(1) appropriate action regarding doctors, other | ||
health care providers, insurance carriers, utilization review | ||
agents, and independent review organizations; [ |
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(2) the addition or deletion of doctors from the list | ||
of approved doctors under Section 408.023; and | ||
(3) the certification, revocation of certification, | ||
or denial of renewal of certification [ |
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doctor [ |
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(d) A person who serves on the medical quality review panel | ||
is immune from suit and from civil liability for an act performed, | ||
or a recommendation made, within the scope of the person's | ||
functions as a member of the panel if the person acts without malice | ||
and in the reasonable belief that the action or recommendation is | ||
warranted by the facts known to that person. In the event of a civil | ||
action brought against a member of the panel that arises from the | ||
person's participation on the panel, the person is entitled to the | ||
same protections afforded the commissioner [ |
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under Section 402.00123 [ |
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(e) The actions of a person serving on the medical quality | ||
review panel do not constitute utilization review and are not | ||
subject to Chapter 4201 [ |
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(f) A member of the medical quality review panel[ |
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case is subject to Section 408.0043, 408.0044, or [ |
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(g) The medical advisor shall notify the division if the | ||
medical advisor determines that: | ||
(1) it is no longer necessary for the medical quality | ||
review panel to include a member that practices in a particular | ||
health care specialty field; or | ||
(2) there is a need for the panel to include a member | ||
that practices in a particular health care specialty field not | ||
represented on the panel. | ||
(h) If the division receives notice from the medical advisor | ||
under Subsection (g)(2), the division may enter into agreements | ||
with other state agencies to access, as necessary, expertise in | ||
that health care specialty field. | ||
SECTION 35. Subchapter E, Chapter 413, Labor Code, is | ||
amended by adding Sections 413.05115, 413.05121, and 413.05122 to | ||
read as follows: | ||
Sec. 413.05115. MEDICAL QUALITY REVIEW PROCESS. (a) The | ||
division shall develop, and the commissioner shall adopt, criteria | ||
concerning the medical case review process under this subchapter. | ||
In developing the criteria, and before adopting the criteria, the | ||
division and the commissioner, as applicable, must consult with the | ||
medical advisor and seek input from potentially affected parties, | ||
including health care providers and insurance carriers. | ||
(b) The criteria developed and adopted under this section | ||
must establish a clear process or processes: | ||
(1) for handling complaint-based medical case | ||
reviews; and | ||
(2) through which the division selects health care | ||
providers or other entities for a compliance audit or review. | ||
(c) The division shall make the criteria developed and | ||
adopted under this section available on the Internet website | ||
maintained by the division. | ||
Sec. 413.05121. QUALITY ASSURANCE PANEL. (a) The medical | ||
advisor shall establish the quality assurance panel within the | ||
medical quality review panel to: | ||
(1) provide an additional level of evaluation in | ||
medical case reviews; and | ||
(2) assist the medical advisor in performing the | ||
advisor's duties under Section 413.0511(b)(6) and the medical | ||
quality review panel in performing that panel's duties under | ||
Section 413.0512. | ||
(b) Members of the quality assurance panel shall evaluate | ||
medical care and recommend enforcement actions to the medical | ||
advisor. | ||
(c) The quality assurance panel shall meet periodically to | ||
discuss issues and otherwise offer assistance to the medical | ||
advisor and the medical quality review panel under Subsection | ||
(a)(2). | ||
Sec. 413.05122. MEDICAL QUALITY REVIEW PANEL: RULES; | ||
TRAINING. (a) The commissioner, after consultation with the | ||
medical advisor, shall adopt rules concerning the operation of the | ||
medical quality review panel, including rules that establish: | ||
(1) the qualifications necessary for a health care | ||
provider to serve on the medical quality review panel; | ||
(2) the composition of the medical quality review | ||
panel, including the number of members to be included on the panel | ||
and the health care specialty fields required to be represented by | ||
the members of the panel; | ||
(3) the maximum length of time a health care provider | ||
may serve on the medical quality review panel; | ||
(4) a policy defining situations that constitute a | ||
conflict of interest for a member of the medical quality review | ||
panel; | ||
(5) procedures and grounds for removing a member of | ||
the medical quality review panel from the panel, including as a | ||
ground for removal that a member is repeatedly delinquent in | ||
conducting case reviews; and | ||
(6) a procedure through which members of the medical | ||
quality review panel are notified concerning the status and | ||
enforcement outcomes of cases resulting from the medical quality | ||
review process. | ||
(b) In addition to the rules required under Subsection (a), | ||
the commissioner shall adopt rules concerning the training | ||
requirements for members of the medical quality review panel. The | ||
rules adopted under this subsection must ensure that panel members | ||
are fully aware of any requirements imposed by this subtitle | ||
concerning the medical quality review process and the division's | ||
goals concerning the process. The rules adopted under this | ||
subsection may require members to receive training on any topic | ||
determined by the division or the commissioner to be relevant to the | ||
operations of the panel and must require members of the panel to | ||
receive training concerning: | ||
(1) administrative violations that affect the | ||
delivery of appropriate medical care; | ||
(2) the confidentiality requirements described by | ||
Section 413.0513 and the immunity from liability provided to | ||
members of the panel under Section 413.054; and | ||
(3) the medical quality review criteria adopted under | ||
Section 413.05115. | ||
SECTION 36. Section 413.054(a), Labor Code, is amended to | ||
read as follows: | ||
(a) A person who performs services for the division as a | ||
designated doctor, an independent medical examiner, a doctor | ||
performing a medical case review, or a member of a peer review panel | ||
has the same immunity from liability as the commissioner under | ||
Section 402.00123 [ |
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SECTION 37. Section 414.005, Labor Code, is amended to read | ||
as follows: | ||
Sec. 414.005. INVESTIGATION UNIT. (a) The division shall | ||
maintain an investigation unit to conduct investigations relating | ||
to alleged violations of this subtitle, commissioner rules, or a | ||
commissioner order or decision, with particular emphasis on | ||
violations of Chapters 415 and 416. | ||
(b) As often as the commissioner considers necessary, the | ||
commissioner or the investigation unit may review the operations of | ||
a person regulated by the division, including an agent of the person | ||
performing functions regulated by the division, to determine | ||
compliance with this subtitle. | ||
(c) The review described by Subsection (b) may include | ||
on-site visits to the person's premises. The commissioner is not | ||
required to announce an on-site visit in advance. | ||
(d) During an on-site visit, a person regulated by the | ||
division shall make available to the division all records relating | ||
to the person's participation in the workers' compensation system. | ||
(e) The commissioner by rule shall prescribe the procedures | ||
to be used for both announced and unannounced on-site visits | ||
authorized under this section, including specifying the records | ||
subject to inspection. | ||
SECTION 38. Section 415.0035(e), Labor Code, is amended to | ||
read as follows: | ||
(e) A person regulated by the division under this title [ |
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administrative violation if the [ |
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subtitle or a rule, order, or decision of the commissioner. | ||
SECTION 39. Section 415.008(a), Labor Code, is amended to | ||
read as follows: | ||
(a) A person commits an administrative [ |
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person, to obtain or deny a payment of a workers' compensation | ||
benefit or the provision of a benefit for the person or another, | ||
knowingly or intentionally: | ||
(1) makes a false or misleading statement; | ||
(2) misrepresents or conceals a material fact; | ||
(3) fabricates, alters, conceals, or destroys a | ||
document; or | ||
(4) conspires to commit an act described by | ||
Subdivision (1), (2), or (3). | ||
SECTION 40. Sections 415.009 and 415.010, Labor Code, are | ||
amended to read as follows: | ||
Sec. 415.009. FRIVOLOUS ACTIONS; ADMINISTRATIVE VIOLATION. | ||
[ |
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person brings, prosecutes, or defends an action for benefits under | ||
this subtitle or requests initiation of an administrative violation | ||
proceeding that does not have a basis in fact or is not warranted by | ||
existing law or a good faith argument for the extension, | ||
modification, or reversal of existing law. | ||
[ |
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Sec. 415.010. BREACH OF AGREEMENT; ADMINISTRATIVE | ||
VIOLATION. [ |
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commits an administrative [ |
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provision of the agreement. | ||
[ |
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SECTION 41. The heading to Subchapter B, Chapter 415, Labor | ||
Code, is amended to read as follows: | ||
SUBCHAPTER B. SANCTIONS [ |
||
SECTION 42. Section 415.021(a), Labor Code, is amended to | ||
read as follows: | ||
(a) In addition to any other provisions in this subtitle | ||
relating to violations, a person commits an administrative | ||
violation if the person violates, fails to comply with, or refuses | ||
to comply with this subtitle or a rule, order, or decision of the | ||
commissioner, including an emergency cease and desist order issued | ||
under Section 415.0211. In addition to any sanctions, | ||
administrative penalty, or other remedy authorized by this | ||
subtitle, the commissioner may assess an administrative penalty | ||
against a person who commits an administrative violation. The | ||
administrative penalty shall not exceed $25,000 per day per | ||
occurrence. Each day of noncompliance constitutes a separate | ||
violation. The commissioner's authority under this chapter is in | ||
addition to any other authority to enforce a sanction, penalty, | ||
fine, forfeiture, denial, suspension, or revocation otherwise | ||
authorized by law. | ||
SECTION 43. Subchapter B, Chapter 415, Labor Code, is | ||
amended by adding Section 415.0211 to read as follows: | ||
Sec. 415.0211. EMERGENCY CEASE AND DESIST ORDER. (a) The | ||
commissioner ex parte may issue an emergency cease and desist order | ||
if: | ||
(1) the commissioner believes a person regulated by | ||
the division under this title is engaging in conduct violating a | ||
law, rule, or order; and | ||
(2) the commissioner believes that the alleged conduct | ||
under Subdivision (1) will result in harm to the health, safety, or | ||
welfare of another person. | ||
(b) On issuance of an order under Subsection (a), the | ||
commissioner shall serve on the affected person an order that | ||
contains a statement of the charges and requires the person | ||
immediately to cease and desist from the acts, methods, or | ||
practices stated in the order. The commissioner shall serve the | ||
order by registered or certified mail, return receipt requested, to | ||
the affected person's last known address. The order is final on the | ||
31st day after the date the affected person receives the order, | ||
unless the affected person requests a hearing under Subsection (c). | ||
(c) A person affected by an order is entitled to request a | ||
hearing to contest the order. The affected person must request the | ||
hearing not later than the 30th day after the date the person | ||
receives the order required by Subsection (b). A request to contest | ||
an order must: | ||
(1) be in writing; | ||
(2) be directed to the commissioner; and | ||
(3) state the grounds for the request to set aside or | ||
modify the order. | ||
(d) On receiving a request for a hearing, the commissioner | ||
shall serve notice of the time and place of the hearing. The | ||
hearing is subject to the procedures for a contested case under | ||
Chapter 2001, Government Code. The hearing shall be held not later | ||
than the 10th day after the date the commissioner receives the | ||
request for a hearing unless the parties mutually agree to a later | ||
hearing date. At the hearing, the person requesting the hearing is | ||
entitled to show cause why the order should not be affirmed. | ||
Following receipt of the proposal for decision from the State | ||
Office of Administrative Hearings regarding the hearing, the | ||
commissioner shall wholly or partly affirm, modify, or set aside | ||
the order. | ||
(e) Pending a hearing under this section, an order continues | ||
in effect unless the order is stayed by the commissioner. | ||
SECTION 44. Section 402.072, Labor Code, is transferred to | ||
Subchapter B, Chapter 415, Labor Code, and redesignated as Section | ||
415.0215, Labor Code, to read as follows: | ||
Sec. 415.0215 [ |
||
impose sanctions against any person regulated by the division under | ||
this subtitle. | ||
(b) Only the commissioner may impose: | ||
(1) a sanction that deprives a person of the right to | ||
practice before the division or of the right to receive | ||
remuneration under this subtitle for a period exceeding 30 days; or | ||
(2) another sanction suspending for more than 30 days | ||
or revoking a license, certification, or permit required for | ||
practice in the field of workers' compensation. | ||
(c) A sanction imposed by the division is binding pending | ||
appeal. | ||
SECTION 45. Sections 415.025, 415.032, 415.033, and | ||
415.034, Labor Code, are amended to read as follows: | ||
Sec. 415.025. REFERENCES TO A CLASS OF VIOLATION OR | ||
PENALTY. A reference in this code or other law, or in rules of the | ||
former Texas Workers' Compensation Commission or the commissioner, | ||
to a particular class of violation, administrative violation, or | ||
penalty shall be construed as a reference to an administrative | ||
penalty. An [ |
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administrative penalty may not exceed $25,000 per day per | ||
occurrence. Each day of noncompliance constitutes a separate | ||
violation. | ||
Sec. 415.032. NOTICE OF POSSIBLE ADMINISTRATIVE VIOLATION; | ||
RESPONSE. (a) If investigation by the division indicates that an | ||
administrative violation has occurred, the division shall notify | ||
the person alleged to have committed the violation in writing of: | ||
(1) the charge; | ||
(2) the proposed sanction [ |
||
(3) the right to consent to the charge and the sanction | ||
[ |
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(4) the right to request a hearing. | ||
(b) Not later than the 20th day after the date on which | ||
notice is received, the charged party shall: | ||
(1) remit the amount of the sanction [ |
||
division or otherwise consent to the imposed sanction; or | ||
(2) submit to the division a written request for a | ||
hearing. | ||
Sec. 415.033. FAILURE TO RESPOND. If, without good cause, a | ||
charged party fails to respond as required under Section 415.032, | ||
[ |
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proceedings. | ||
Sec. 415.034. HEARING PROCEDURES. [ |
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the charged party or the commissioner, the State Office of | ||
Administrative Hearings shall set a hearing. The hearing shall be | ||
conducted in the manner provided for a contested case under Chapter | ||
2001, Government Code (the administrative procedure law). | ||
[ |
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[ |
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SECTION 46. Subchapter C, Chapter 415, Labor Code, is | ||
amended by adding Section 415.036 to read as follows: | ||
Sec. 415.036. STANDARD OF JUDICIAL REVIEW OF COMMISSIONER'S | ||
ORDER. An order of the commissioner is subject to judicial review | ||
under the substantial evidence rule. | ||
SECTION 47. Section 419.001, Labor Code, is amended by | ||
adding Subsection (c) to read as follows: | ||
(c) For purposes of this chapter, a person acts in a | ||
"deceptive manner" if the person knows or should know that the | ||
person's actions would convey, or could reasonably be interpreted | ||
or construed as conveying, the false impression that: | ||
(1) an item is approved, endorsed, sponsored, | ||
authorized by, the same as, or associated with the division, the | ||
department, this state, or an agency of this state; or | ||
(2) the person has a connection with or authorization | ||
from the division, the department, this state, or an agency of this | ||
state. | ||
SECTION 48. Section 419.002, Labor Code, is amended to read | ||
as follows: | ||
Sec. 419.002. MISUSE OF DIVISION'S NAME OR SYMBOLS | ||
PROHIBITED. (a) Except as authorized by law, a person, in | ||
connection with any impersonation, advertisement, solicitation, | ||
business name, business activity, document, product, or service | ||
made or offered by the person regarding workers' compensation | ||
coverage or benefits, may not knowingly use or cause to be used in a | ||
deceptive manner: | ||
(1) the words "Texas Department of Insurance," | ||
"Department of Insurance," "Texas Workers' Compensation," or | ||
"division of workers' compensation"; | ||
(2) any term using both "Texas" and "Workers' | ||
Compensation" or any term using both "Texas" and "Workers' Comp"; | ||
(3) the initials "T.D.I."; or | ||
(4) any combination or variation of the words or | ||
initials, or any term deceptively similar to the words or initials, | ||
described by Subdivisions (1)-(3). | ||
(b) A person subject to Subsection (a) may not knowingly use | ||
or cause to be used in a deceptive manner a word, term, or initials | ||
described by Subsection (a) alone or in conjunction with: | ||
(1) the state seal or a representation of the state | ||
seal; | ||
(2) a picture or map of this state; or | ||
(3) the official logo of the department or the | ||
division or a representation of the department's or division's | ||
logo. | ||
SECTION 49. The following provisions of the Labor Code are | ||
repealed: | ||
(1) Section 413.031(l); | ||
(2) Sections 415.0035(c), (d), and (f); | ||
(3) Section 415.0036(c); | ||
(4) Section 415.004; | ||
(5) Section 415.008(b); and | ||
(6) Section 415.022. | ||
SECTION 50. Sections 1305.355(e), (f), and (g), Insurance | ||
Code, as amended by this Act, and Section 1305.356, Insurance Code, | ||
as added by this Act, apply to a medical dispute based on a review by | ||
an independent review organization under Section 1305.355 that is | ||
commenced on or after the effective date of this Act. A dispute | ||
based on a review by an independent review organization under | ||
Section 1305.355 that is commenced before the effective date of | ||
this Act is governed by the law in effect immediately before the | ||
effective date of this Act, and that law is continued in effect for | ||
that purpose. | ||
SECTION 51. Section 402.073, Labor Code, as amended by this | ||
Act, applies only to an administrative hearing that is conducted on | ||
or after the effective date of this Act. An administrative hearing | ||
conducted before the effective date of this Act is governed by the | ||
law in effect when the hearing was conducted, and the former law is | ||
continued in effect for that purpose. | ||
SECTION 52. Section 403.001, Labor Code, as amended by this | ||
Act, and Section 403.008, Labor Code, as added by this Act, apply | ||
only to an administrative penalty assessed for an administrative | ||
violation that occurs on or after the effective date of this Act. | ||
An administrative penalty assessed for an administrative violation | ||
that occurred before the effective date of this Act is governed by | ||
the law in effect when the violation occurred, and the former law is | ||
continued in effect for that purpose. | ||
SECTION 53. (a) The commissioner of workers' compensation | ||
shall adopt the rules regarding certification of designated doctors | ||
required by Section 408.1225, Labor Code, as amended by this Act, | ||
not later than January 1, 2013. | ||
(b) A designated doctor is not required to obtain | ||
certification under Section 408.1225, Labor Code, as amended by | ||
this Act, before January 1, 2013. | ||
(c) Sections 408.1225(b), 413.044(b), and 413.0512(c), | ||
Labor Code, as amended by this Act, apply only to a disciplinary | ||
action taken against a designated doctor on or after January 1, | ||
2013. A disciplinary action taken against a designated doctor | ||
before that date is governed by the law as it existed immediately | ||
before the effective date of this Act, and the former law is | ||
continued in effect for that purpose. | ||
(d) Section 408.0041, Labor Code, as amended by this Act, | ||
applies only to a medical examination by a designated doctor that | ||
occurs on or after January 1, 2013. A medical examination that | ||
occurs before that date is governed by the law in effect when the | ||
medical examination occurred, and the former law is continued in | ||
effect for that purpose. | ||
SECTION 54. (a) Sections 408.022, 408.085, 408.104, | ||
408.129, 408.1415, 408.143, 408.147, and 408.151, Labor Code, as | ||
amended by this Act, apply to an application filed or a request made | ||
on or after January 1, 2013. An application filed or a request made | ||
before January 1, 2013, is governed by the law in effect when the | ||
application was filed or the request was made, and the former law is | ||
continued in effect for that purpose. | ||
(b) The commissioner of workers' compensation shall adopt | ||
the rules required by Sections 408.022, 408.085, 408.104, 408.129, | ||
and 408.1415, Labor Code, as amended by this Act, as soon as | ||
practicable after the effective date of this Act. | ||
SECTION 55. The change in law made by this Act in amending | ||
Sections 409.021, 415.0035, 415.008, 415.009, 415.010, 415.021, | ||
415.025, 415.032, 415.033, and 415.034, Labor Code, and Sections | ||
2051.151 and 2053.206, Insurance Code, adding Section 415.0211, | ||
Labor Code, and repealing Sections 415.0035(c), (d), and (f), | ||
415.0036(c), 415.004, 415.008(b), and 415.022, Labor Code, applies | ||
only to an administrative violation that occurs on or after the | ||
effective date of this Act. An administrative violation that | ||
occurs before the effective date of this Act is governed by the law | ||
in effect on the date the violation occurred, and the former law is | ||
continued in effect for that purpose. | ||
SECTION 56. Sections 410.023 and 410.028, Labor Code, as | ||
amended by this Act, apply only to a benefit review conference | ||
requested on or after the effective date of this Act. A benefit | ||
review conference requested before the effective date of this Act | ||
is governed by the law in effect immediately before the effective | ||
date of this Act, and that law is continued in effect for that | ||
purpose. | ||
SECTION 57. Sections 413.031(k) and (k-1) and 413.0311(a), | ||
Labor Code, as amended by this Act, and Section 413.0312, Labor | ||
Code, as added by this Act, apply only to the appeal of a medical fee | ||
dispute under those sections that is based on a review conducted by | ||
the division of workers' compensation of the Texas Department of | ||
Insurance on or after the effective date of this Act. The appeal of | ||
a medical fee dispute that is based on a review conducted by the | ||
division of workers' compensation before the effective date of this | ||
Act is governed by the law in effect on the date the review was | ||
conducted, and that law is continued in effect for that purpose. | ||
SECTION 58. Section 414.005, Labor Code, as amended by this | ||
Act, applies only to an investigation or review conducted on or | ||
after the effective date of this Act. An investigation or review | ||
conducted before the effective date of this Act is governed by the | ||
law in effect when the investigation or review was conducted, and | ||
the former law is continued in effect for that purpose. | ||
SECTION 59. Section 415.036, Labor Code, as added by this | ||
Act, applies only to an order of the commissioner of workers' | ||
compensation issued on or after the effective date of this Act. An | ||
order of the commissioner that was issued before the effective date | ||
of this Act is governed by the law in effect when the order was | ||
issued, and the former law is continued in effect for that purpose. | ||
SECTION 60. This Act takes effect September 1, 2011. |