The 81st Legislature left Austin after one regular session and one special session. For a number of reasons, the Legislature did not pass the expected number of bills, even bills with bipartisan support. The 81st Legislative Session may well be known for bills that did not pass. A special session was required simply to continue several state agencies, including the Texas Department of Insurance. Below are the following bills that are now in effect.
HB 673 OIEC
The Office of Injured Employee Counsel (OIEC) again enjoyed success with their legislative agenda. Burt Solomons authored HB 673 which allows OIEC to refuse to provide or terminate services to claimants who are abusive, threatening, violent, make unreasonable demands, or commits or threaten to commit a criminal act over pursuing a worker’s compensation claim. This portion of the bill is a result of a long-time OIEC employee receiving threats of eminent danger from an injured worker.
More controversial aspects of this bill include an ombudsman – injured employee privilege, similar to an attorney-client privilege. To some, the law recognizes fewer differences between ombudsmans and attorneys. The bill enlarges OIEC’s jurisdiction. Ombudsmen can now assist injured workers before the State Office of Administrative Hearings and in any enforcement actions.
HB 1058 Death Benefits for Non-Dependent Parents
Representative Solomons also authored HB 1058 clarifying that non-dependant parents need not pay burial benefits in order to receive death benefits. (Some suggested non-dependent parents would not qualify if they did not pay burial expenses.) Last session, the legislature passed HB 3823 providing 104 weeks of death benefits to non-dependent parents of a decedent with no other beneficiaries. (The remainder is deposited with the Subsequent Injury Fund). However, the bill’s language seemingly created different standards for dependent and non-dependent parents. The current changes harmonize the law. Furthermore, the bill includes a good cause exception to those non-dependant parents who fail to file a claim for compensation within one year of the decedent’s death.
HB 4545 Timeline to File for Judicial Review
HB 4545 extends the deadline to file judicial review from 40 days from the date the Division files the final decision to 45 days after the Division mails the decision. The bill clarifies the date of mailing is five days after the decision is filed with the Division. In essence, the aggrieved party had 50 days (although there may be an argument the 45 days runs from the first working day after the mailing date). The former law set a date firmly calculated from the day the final decision was filed with DWC.
HB 2547 Employer-Provided Job Description
Representative Giddings authored HB 2547. Employers with more than 10 employees must now provide the scope and specific tasks of a claimant’s job to a treating doctor, if requested. By law, the employer’s description is not a bona fide job offer. The employer is not required to list the requirements of a light duty job. Texas Medical Association suggested such legislation in their Workers’ Compensation legislative agenda. DWC is currently working on a one page form for this purpose.
SB 1814 RTW Pilot Program and Coordination Services
SB 1814, authored by Senator Van de Putte, concerned the RTW Pilot program and return-to-work coordination. If the employer agrees, the insurance carrier shall provide the employer with ongoing return-to-work coordination services to facilitate an employee’s return-to-work. The employer is now eligible to receive $5,000 under the program. The bill also requires carriers to notify employers of return-to-work coordination services and availability of the return-to-work reimbursement program. The return-to-work pilot program is now superseded by a return-to-work reimbursement program. The return-to-work pilot program had little success in encouraging employers to apply for the funds appropriated by the Legislature in assisting injured workers in returning back to work and assisting employers in providing work to its injured employees.
HB 3625 Preauthorization Timeframes
Medical care was an issue of several bills that passed. HB 3625 provides a three day working deadline of pre-authorization determinations in healthcare networks. The time frames are now the same for networks as they are for non-networks.
HB 4290 Reviews of Adverse Determinations
HB 4290 concerns utilization review. This bill provides for an IRO for (1) retrospective review denials requested by an insured individual and (2) denial of treatment that a carrier believes is investigational or experimental. The bill also requires the contract between a carrier and a health care network to include a contingency plan. Before a URA makes an adverse determination, it must allow a reasonable opportunity for a peer-to-peer conversation with a reviewer of the same specialty. URA must give a healthcare provider written notice of an adverse determination within 30 days with a one-time 15 day extension, if the provider failed to provide sufficient information. The bill makes other changes to retrospective review programs for workers’ compensation healthcare networks. The bill is complicated and it is recommended the reader review in detail with its bill reviewer or URA vendor to understand its full affects.
HB 4519 IRO Regulation
HB 4519 concerns Independent Review Organization (IRO) ownership. The number of IROs significantly increased after the workers’ compensation laws were changed to give IROs a voice in medical necessity disputes. A few IROs were created for financial gain. For example, one entity owns several different IROs. This effectively increased the owners referrals while limiting the number of referrals to other IROs. Changes include (1) a limitation of one IRO per facility (ownership of multiple IROs is prohibited); (2), the IRO must be based, licensed and it’s primary offices located in Texas; (3) an attorney serving as the registered agent of an IRO cannot represent the IRO; (4) selling an IRO requires a new application; and (5) prohibiting an outsource of any IRO review. Regulating IROs was deemed important since an IRO overturns 30% of carrier pre-authorization denials and 68% of carrier retrospective denials.
SB 381 Delegation to Pharmacists
SB 381 from Leticia Van de Putte allows physicians to delegate to certain pharmacists, operating an academic or hospital setting, the ability to modify a patient’s drug therapy.
SB 911 Regulating Pain Management Clinics
SB 911, authored by Tommy Williams, concerns the regulation of pain management clinics including licensing from the Texas Medical Board. This bill regulates “pill mills.” The Texas Pain Society was in full agreement with the certification and ownership requirements. Any facility with 50% of its prescriptions of certain classes of drugs now must be licensed. Owners must be a medical doctor and spend 33% of their time at the facility during open hours and must review 33% of the patient files. “Pill mills” are a growing problem nationally and in Texas. Recently, the FBI arrested and brought charges again Dr. Sharma and his wife for their “staggering” prescription activities operating Allergy, Asthma, Arthritis and Pain Center. Senator Williams will likely pursue more legislation in the next session.
SB 202 Provisional Medical Licenses
Senator Elliot Shapleigh authored SB 202 allowing provisional licensing of physicians to practice in underserved areas. The Texas Medical Board will now grant provisional licenses for doctors wishing to practice in underserved areas.
What Did Not Pass
The most interesting bills are the ones that did not pass. For example, the Legislature failed to enact the following changes:
-
-
Reporting requirements for non-subscribers;
-
Regulation for silent PPOs;
-
A post designated doctor, claimant required medical examination;
-
Order of liens for claimant attorneys;
-
Electing the Texas Department of Insurance Commissioner;
-
Doctors performing any reviews must be of the same certification/specialty;
-
Construction contract indemnification agreements;
-
Causation standards for those suffering from mesothelioma;
-
Regulation of chiropractor clinics;
-
New waiver period: 60 days after receipt;
-
Eliminating the 90 day finality provisions;
-
Suspending any income benefit for claimant’s failure to attend designated doctor evaluation;
-
Allowing recoupment by overturning appeals panel decisions;
-
Creation of a state OSHA;
-
Defining pre-authorization as a guarantee of payment;
-
Ambulatory Surgical Centers (ASC) receiving the same reimbursement fees as hospitals;
-
Prohibiting discrimination of claimants;
-
Moving workers’ compensation fraud prosecution to the Office of Attorney General;
-
Immunity for DWC selected doctors; and
-
Lowering the supplemental income benefits’ threshold from 15% to 10%.
Looking towards the future, stakeholders must watch the Sunset Commission’s review of TDI and DWC. The Entergy decision continues to provide fuel to various stakeholders for greater change to the workers’ compensation system. Many of the failed bills will again be filed. Indeed, the 82nd Legislative Session might prove more interesting and provide a fundamental shift to the workers’ compensation system.