TX Informal Proposal To Repeal Designated Doctor Examinations And Examination Procedures Rules

Austin, TX (CompNewsNetwork) - The Texas Department of Insurance, Division of Workers' Compensation (TDI-DWC) is accepting comment on informally proposed rules to repeal 28 Texas Administrative Code (TAC) §126.7 and new 29 TAC §§126.7 – 126.75. The comment period on the informal proposal closes March 25, 2010 at 5 p.m. (Central Standard Time).

This informal working draft is not a formal rule proposal. Accordingly, comments will not be treated as formal public comment for the purposes of the Administrative Procedure Act. In addition to commenting on this informal proposal, there will be the opportunity to formally comment once the rules are proposed and published in the Texas Register. TDI-DWC anticipates formal publication of the rules in 2010. The informal working draft may contain drafting notes and formatting, which will be changed as necessary to comply with the Texas Register formatting.

The purpose of the informal proposal is to request input from system participants regarding the implementation of new designated doctor examination and scheduling procedures.

Highlights of Informal Draft Rules:

Repealed 28 TAC §126.7
- Repeals current 28 TAC§126.7 in its entirety. The vast majority of the repealed language in 28 TAC §126.7 is recodified in proposed new informal rules 28 TAC §§126.7-126.75.

New 28 TAC §126.7
- Clarifies the specific requirements for a designated doctor examination request, including requiring that requestors submit a specific reason for the designated doctor examination and submit an explanation of any change of the employee's medical condition from a previous designated doctor examination.
- Clarifies that a request for a designated doctor examination must be made through an expedited contested case hearing if that request would require TDI-DWC to schedule a designated doctor examination within sixty days of a previous examination.
- Lists the reasons for which TDI-DWC would deny a designated doctor examination request, including if the request would require TDI-DWC to schedule an appointment in violation of Texas Labor Code (TLC) §408.123.
- Meets the requirement of TLC §408.0041(b) by defining "good cause" for the purpose of scheduling designated doctor appointments more frequently than every sixty days.
- States that parties may dispute TDI-DWC's approval or denial of a designated doctor examination request through the dispute resolution processes outlined in 28 TAC Chapters 140-147; Also states that if a party requests an expedited contested case hearing to dispute TDI-DWC's approval of a designated doctor examination, TDI-DWC shall stay the order for that designated doctor request until the resolution of the contested case hearing.
- Recodifies language previously codified at 28 TAC §§126.7(a)-(c), 126.7(s), and 126.7(t).

New 28 TAC §126.71
- Clarifies that the order assigning a designated doctor to a request shall require the designated doctor to perform the examination at a specific examination address and that this address may not be changed without TDI-DWC approval.
- States that the TDI-DWC may void an order for a designated doctor examination and any reports issued pursuant to that order if the requestor submitted inaccurate information in the request for a designated doctor examination.
- Explains when and where a designated doctor is available to perform an initial examination of an employee.
- Clarifies that TDI-DWC may require designated doctors previously assigned to a claim to conduct all subsequent examinations on that claim in the same county as the previous examinations were performed so long as that designated doctor is still qualified to perform the examination.
- Recodifies language previously codified at 28 TAC §§126.7(e)-(f) and 126.7(h).

New 28 TAC §126.72
- Limits the scope of any analysis an employee's treating doctor or an insurance carrier may submit to a designated doctor.
- Deletes the requirement that medical records must be sent to the designated doctor five days prior to the scheduled date of the examination and instead only requires that the record be received by the designated doctor no later than one day before the scheduled date of the examination.
- Requires designated doctors to file a Work Status Report and narrative report after every examination relating to return-to-work issues.
- Prescribes specific data elements required to be included in reports filed by designated doctors after examinations relating to issues other than return to work, maximum medical improvement, or impairment rating.
- Clarifies that an insurance carrier shall pay any accrued benefits in accordance with a designated doctor's report, including medical benefits that are otherwise due under the TLC and TDI-DWC rules.
- Requires designated doctors to retain medical records seven years from the anniversary date of the date of the designated doctor's last examination of the injured employee.
- Recodifies language previously codified at 28 TAC §§126.7(d), 126.7(i)-(k), 126.7(n)-(r), and 126.7(v).

New 28 TAC §126.73
- Permits designated doctors to contact peer review doctors who have examined not only the employee's claim but also any information regarding the employee's claim.
- Recodifies language previously codified at 28 TAC §126.7(l).
New 28 TAC §126.74
- Limits requests for clarification to those issues already addressed by the designated doctor's report.
- Prescribes the required elements of a request for clarification.
- Clarifies that designated doctors must respond to requests for clarification in writing and lists the parties to whom the designated doctors must provide copies of their responses.
- Clarifies that any refusal or failure by a designated doctor to conduct a reexamination that is necessary to respond to a request for clarification is an administrative violation.
- Recodifies language previously codified at 28 TAC §126.7(u).

New 28 TAC §126.75
- Recodifies language previous codified at 28 TAC §126.7(g). 

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