SEVENTY-NINTH LEGISLATURE — REGULAR SESSION
AUSTIN, TEXAS
PROCEEDINGS
SEVENTY-FIRST DAY
(Tuesday, May 17, 2005)
The Senate met at 11:00 a.m. pursuant to adjournment and was called to order by SenatoriArmbrister.
The roll was called and the following Senators were present:iiArmbrister, Averitt, Barrientos, Brimer, Deuell, Duncan, Ellis, Eltife, Estes, Fraser, Gallegos, Harris, Hinojosa, Jackson, Janek, Lindsay, Lucio, Madla, Nelson, Ogden, Seliger, Shapiro, Shapleigh, Staples, VanideiPutte, Wentworth, West, Whitmire, Williams, Zaffirini.
Absent-excused:iiCarona.
The Presiding Officer announced that a quorum of the Senate was present.
The Reverend John McMullen, First United Methodist Church, Austin, offered the invocation as follows:
O God, our help in ages past, our hope for years to come, we gather this day praying for an awareness of Your presence in our midst. It has been a long session. There are some who are frustrated. There are some who are disappointed. There are some who are disheartened. All are tired:iiphysically, intellectually, and emotionally. And yet there is still much to do. There is much before these Senators and their staffs. There are important decisions to be made and actions to be taken, all of which will impact the lives of countless people, some of whom have been heard, others of whom have not. Give these who gather here in this Chamber a sense of responsibility for all Your people, not only this day but in the days to come. Loving God, we may not all hear Your voice in the same way, but we pray that when You speak Your word of peace and love and community, it will be heard and those who hear will respond accordingly. In that spirit we commit this day and its actions to You. May that which is done here be fitting in Your sight. Amen.
Senator Whitmire moved that the reading of the Journal of the proceedings of yesterday be dispensed with and the Journal be approved as printed.
The motion prevailed without objection.
LEAVE OF ABSENCE
On motion of Senator Whitmire, Senator Carona was granted leave of absence for today on account of important business.
CO-SPONSOR OF HOUSE BILL 984
On motion of Senator Duncan, Senator Barrientos will be shown as Co-sponsor of HBi984.
BILLS SIGNED
The Presiding Officer announced the signing of the following enrolled bills in the presence of the Senate after the captions had been read:ii
SBi15, SBi846, SBi1027, SBi1537.
MESSAGE FROM THE HOUSE
HOUSE CHAMBER
Austin, Texas
May 17, 2005
The Honorable President of the Senate
Senate Chamber
Austin, Texas
Mr. President:
I am directed by the House to inform the Senate that the House has taken the following action:
THE HOUSE HAS PASSED THE FOLLOWING MEASURES:
HCR 168, Recognizing the problem of obesity in Texas and encouraging awareness of prevention and treatment methods.
HCR 204, Recognizing George Law of Sulphur Springs on his selection as Sulphur Springs Kiwanis Layperson of the Year.
THE HOUSE HAS CONCURRED IN SENATE AMENDMENTS TO THE FOLLOWING MEASURES:
HB 25 (139 Yeas, 0 Nays, 2 Present, not voting)
HB 102 (136 Yeas, 0 Nays, 2 Present, not voting)
HB 162 (non-record vote)
HB 364 (139 Yeas, 0 Nays, 2 Present, not voting)
HB 595 (139 Yeas, 0 Nays, 3 Present, not voting)
HB 749 (non-record vote)
HB 1007 (138 Yeas, 0 Nays, 2 Present, not voting)
HB 1018 (138 Yeas, 0 Nays, 2 Present, not voting)
HB 1130 (non-record vote)
HB 1326 (138 Yeas, 0 Nays, 2 Present, not voting)
HB 1817 (non-record vote)
2260 79th Legislature — Regular Session 71st Day
THE HOUSE HAS REFUSED TO CONCUR IN SENATE AMENDMENTS TO THE FOLLOWING MEASURES AND REQUESTS THE APPOINTMENT OF A CONFERENCE COMMITTEE TO ADJUST THE DIFFERENCES BETWEEN THE TWO HOUSES:
HB 225 (non-record vote)
House Conferees:iiDriver - Chair/Frost/Hegar/Hupp/Isett
HB 747 (non-record vote)
House Conferees:iiMcReynolds - Chair/Casteel/King, Tracy/Krusee/Phillips
HB 1820 (non-record vote)
House Conferees:iiOtto - Chair/Allen, Alma/Blake/Talton/Vo
Respectfully,
/s/Robert Haney, Chief Clerk
House of Representatives
PHYSICIAN OF THE DAY
Senator Ellis was recognized and presented Dr. Steven Spann of Houston as the Physician of the Day.
The Senate welcomed Dr. Spann and thanked him for his participation in the Physician of the Day program sponsored by the Texas Academy of Family Physicians.
GUESTS PRESENTED
Senator VanideiPutte was recognized and introduced to the Senate representatives of the Texas Latina Crown USA and its founder, Jackeline Cacho.
The Senate welcomed its guests.
INTRODUCTION OF
BILLS AND RESOLUTIONS POSTPONED
The Presiding Officer announced that the introduction of bills and resolutions on first reading would be postponed until the end of today's session.
There was no objection.
GUESTS PRESENTED
Senator Wentworth was recognized and introduced to the Senate seventh- and eighth-grade students and their teachers from Saint James Catholic School in Seguin.
The Senate welcomed its guests.
SENATE RESOLUTION 899
Senator Averitt offered the following resolution:
SR 899, In memory of Linda Ann Whipp Bonham of Cleburne.
The resolution was read.
Tuesday, May 17, 2005 SENATE JOURNAL 2261
Senator Averitt was recognized and introduced to the Senate family members of Linda Ann Whipp Bonham:iiher husband, Bill Bonham, her son, Ben Bonham, and her daughters-in-law, Donna Bonham and Leigh Ann Bonham.
The Senate welcomed its guests and extended its sympathy.
On motion of Senator Averitt, SRi899 was adopted by a rising vote of the Senate.
In honor of the memory of Linda Ann Whipp Bonham of Cleburne, the text of the resolution is printed at the end of today's Senate Journal.
SENATE RESOLUTION 909
Senator Lindsay offered the following resolution:
WHEREAS, The Senate of the State of Texas is pleased to recognize May 15 through 21, 2005, as National Public Works Week in Texas and to welcome the members of the Southeast Texas Branch of the American Public Works Association on the occasion of their visit to the State Capitol on May 17; and
WHEREAS, Public works services provided throughout the state and country are an essential part of everyday life; the health, safety, and comfort of every citizen is dependent upon the efficient operation of public works systems; and
WHEREAS, The support of an informed citizenry is essential to the efficient operation of public works systems and programs such as water, sewers, streets and highways, public buildings, and waste collection; and
WHEREAS, The planning, design, construction, and day-to-day operation of these vital systems is carried out by qualified and dedicated personnel; now, therefore, be it
RESOLVED, That the Senate of the State of Texas, 79th Legislature, hereby commend the thousands of dedicated people in the field of public works and express appreciation to all who are participating in National Public Works Week in Texas; and, be it further
RESOLVED, That a copy of this Resolution be prepared in honor of National Public Works Week.
SR 909 was read and was adopted without objection.
GUESTS PRESENTED
Senator Lindsay was recognized and introduced to the Senate a delegation from the Southeast Texas Branch of the American Public Works Association.
The Senate welcomed its guests.
SENATE RULE 7.12(a) SUSPENDED
(Printing of Bills)
On motion of Senator Harris and by unanimous consent, Senate Rule 7.12(a) was suspended and the committee reports were ordered not printed for the following bills:
HB 2017, HB 2018, HB 2019.
2262 79th Legislature — Regular Session 71st Day
REPORT OF COMMITTEE ON NOMINATIONS
Senator Lindsay submitted the following report from the Committee on Nominations:
We, your Committee on Nominations, to which were referred the following appointments, have had same under consideration and report them back to the Senate with a recommendation that they be confirmed:
Members, Parks and Wildlife Commission:iiJ. Robert Brown, El Paso County; T.iDan Friedkin, Harris County, Peter M. Holt, Blanco County, John D. Parker, Angelina County.
NOTICE OF CONSIDERATION OF NOMINATIONS
Senator Lindsay gave notice that he would tomorrow at the conclusion of morning call submit to the Senate for consideration nominations to agencies, boards, and commissions of the state.
SENATE BILL 5 WITH HOUSE AMENDMENT
Senator Staples called SBi5 from the President's table for consideration of the House amendment to the bill.
The Presiding Officer, Senator Armbrister in Chair, laid the bill and the House amendment before the Senate.
Amendment
Amend SBi5 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to the continuation and operation of the workers' compensation system of this state and to the abolition of the Texas Workers' Compensation Commission, the establishment of the office of injured employee counsel, and the transfer of the powers and duties of the Texas Workers' Compensation Commission to the Texas Department of Insurance and the office of injured employee counsel; providing administrative violations.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. AMENDMENTS TO SUBTITLE A, TITLE 5, LABOR CODE
PART 1. AMENDMENTS TO CHAPTER 401, LABOR CODE
SECTIONi1.001.iiThe heading to Subchapter A, Chapter 401, Labor Code, is amended to read as follows:
SUBCHAPTER A. GENERAL PROVISIONS [SHORT TITLE;
APPLICATION OF SUNSET ACT]
SECTIONi1.002.iiSection 401.003(a), Labor Code, is amended to read as follows:
(a)iiThe department [commission] is subject to audit by the state auditor in
accordance with Chapter 321, Government Code. The state auditor may audit the
department's [commission's]:
(1)iistructure and internal controls;
Tuesday, May 17, 2005 SENATE JOURNAL 2263
(2)iilevel and quality of service provided to employers, injured employees, insurance carriers, self-insured governmental entities, and other participants;
(3)iiimplementation of statutory mandates;
(4)iiemployee turnover;
(5)iiinformation management systems, including public access to nonconfidential information;
(6)iiadoption and implementation of administrative rules by the commissioner; and
(7)iiassessment of administrative violations and the penalties for those violations.
SECTIONi1.003.iiSection 401.011, Labor Code, is amended by amending Subdivisions (1), (8), (14), (15), (19), (28), (30), (37), (39), (42), and (44) and adding Subdivisions (2-a), (4-a), (5-a), (5-b), (5-c), (11-a), (11-b), (12-a), (13-a), (16-a), (17-a), (18-a), (25-a), (25-b), (29-a), (31-a), (31-b), (34-a), (34-b), (34-c), (34-d), (35-a), (35-b), (35-c), (35-d), (38-a), (38-b), (39-a), (39-b), (42-a), (42-b), (42-c), and (42-d) to read as follows:
(1)ii"Adjuster" means a person licensed under Chapter 4101, Insurance Code
[407, Acts of the 63rd Legislature, Regular Session, 1973 (Article 21.07-4, Vernon's
Texas Insurance Code)].
(2-a)ii"Adverse determination" means a determination, made through utilization review or retrospective review, that the health care services furnished or proposed to be furnished to an injured employee are not reasonable and necessary health care services or are not appropriate.
(4-a)ii"Appeal process" means the formal process by which an insurance carrier addresses adverse determinations.
(5-a)ii"Carrier-network contract" means a written agreement between a provider network and an insurance carrier that meets the requirements of Section 408B.152 and under which the provider network:
(A)iiagrees to undertake to arrange for or to provide, by itself or through subcontracts with one or more entities, health care services on a non-capitated basis to participants through participating providers; and
(B)iiaccepts responsibility to perform certain delegated functions on behalf of the insurance carrier.
(5-b)ii"Case management" means a collaborative process of assessment, planning, facilitation, and advocacy for options and services to meet an individual's health needs through communication and application of available resources to promote quality, cost-effective outcomes.
(5-c)ii"Certified provider network" means a network of participating health care providers using care management procedures that is certified by the department in accordance with Subchapter C, Chapter 408B, and is used by an insurance carrier to provide health care services to participants. A certified provider network may include one or more provider networks and individual providers.
(8)ii"Commissioner" ["Commission"] means the commissioner of insurance
[Texas Workers' Compensation Commission].
(11-a)ii"Complainant" means a person who files a complaint under this subtitle. The term includes:
2264 79th Legislature — Regular Session 71st Day
(A)iian employee;
(B)iian employer;
(C)iia health care provider; and
(D)iianother person designated to act on behalf of an employee.
(11-b)ii"Complaint" means any dissatisfaction expressed orally or in writing by a complainant regarding an entity's operation or the manner in which a service is provided. The term does not include:
(A)iia misunderstanding or a problem of misinformation that is resolved promptly by clearing up the misunderstanding or supplying the appropriate information to the satisfaction of the complainant;
(B)iia medical dispute except for a fee dispute; or
(C)iia dispute under Chapter 410.
(12-a)ii"Credentialing" means the insurance carrier's processes, established in accordance with Section 408B.301, for review of qualifications and of other relevant information relating to a health care provider who seeks a participating provider contract.
(13-a)ii"Department" means the Texas Department of Insurance.
(14)ii"Dependent" means an individual who receives a regular or recurring
economic benefit that contributes substantially to the individual's welfare and
livelihood if the individual is eligible for distribution of benefits under this subtitle
[Chapter 408].
(15)ii"Designated doctor" means a doctor appointed by [mutual agreement
of the parties or by] the department [commission] to recommend a resolution of a
dispute as to the medical condition of an injured employee.
(16-a)ii"Dispute" means a disagreement relating to issues that are subject to Chapter 410, or a disagreement that is subject to the medical dispute resolution requirements of Subchapter C, Chapter 413.
(17-a)ii"Emergency care" means either a medical or mental health emergency as described below:
(A)iia medical emergency consists of the sudden onset of a medical condition manifesting itself by acute symptoms of sufficient severity including severe pain that the absence of immediate medical attention could reasonably be expected to result in placing the patient's health and/or bodily functions in serious jeopardy and/or serious dysfunction of any body organ or part;
(B)iia mental health emergency is a condition that could reasonably be expected to present danger to self or others.
(18-a)ii"Fee dispute" means a dispute over the amount of payment due for health care services determined to be medically necessary and appropriate for treatment of a compensable injury.
(19)ii"Health care" means only medically [includes all reasonable and]
necessary medical aid, medical examinations, medical treatments, medical diagnoses,
medical evaluations, and medical services. The term does not include vocational
rehabilitation. The term includes:
(A)iimedical, surgical, chiropractic, podiatric, optometric, dental, nursing, occupational therapy, and physical therapy services provided by or at the direction of, or that are the subject of a referral by, a treating doctor;
Tuesday, May 17, 2005 SENATE JOURNAL 2265
(B)iiphysical rehabilitation services performed by a licensed
[occupational] therapist and provided by or at the direction of, or that are the subject
of a referral by, a treating doctor;
(C)iipsychological services provided by or at the direction of, or that are
the subject of a referral by, a treating [prescribed by a] doctor;
(D)iithe services of a hospital or other health care facility provided by or at the direction of, or that are the subject of a referral by, a treating doctor;
(E)iia prescription drug, medicine, or other remedy provided by or at the direction of, or that is the subject of a referral by, a treating doctor; and
(F)iia medical or surgical supply, appliance, brace, artificial member, or prosthesis, including training in the use of the appliance, brace, member, or prosthesis, provided by or at the direction of, or that is the subject of a referral by, a treating doctor.
(25-a)ii"Independent review" means a system for final administrative review by an independent review organization of the medical necessity and appropriateness of health care services being provided, proposed to be provided, or that have been provided to an employee.
(25-b)ii"Independent review organization" means an entity that is certified by the commissioner to conduct independent review under Article 21.58C, Insurance Code, and rules adopted by the commissioner.
(28)ii"Insurance company" means a person authorized and admitted by the
department [Texas Department of Insurance] to engage in the business of [do]
insurance [business] in this state under a certificate of authority that includes
authorization to write workers' compensation insurance.
(29-a)ii"Life threatening" has the meaning assigned by Section 2, Article 21.58A, Insurance Code.
(30)ii"Maximum medical improvement" means the earlier of:
(A)iithe earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated;
(B)iithe expiration of 104 weeks from the date on which income benefits begin to accrue; or
(C)iithe date determined as provided by Section 408D.054 [408.104].
(31-a)ii"Medical records" means the history of diagnosis and treatment for an injury, including medical, dental, and other health care records from each health care practitioner who provides care to an injured employee.
(31-b)ii"Nurse" has the meaning assigned by Section 2, Article 21.58A, Insurance Code.
(34-a)ii"Participating health care provider" and "participating provider" mean a health care provider that:
(A)iiparticipates in a certified provider network by entering into a participating provider contract to provide health care services to injured employees in accordance with this subtitle; and
(B)iihas been credentialed by the insurance carrier or provider network in the manner described by Section 408B.301.
2266 79th Legislature — Regular Session 71st Day
(34-b)ii"Participating provider contract" means the written agreement entered into by a health care provider with an insurance carrier or provider network under which the health care provider agrees to, by itself or through subcontracts with one or more entities, provide or arrange for health care services to injured employees under Chapter 408B.
(34-c)ii"Pattern of practice of under-utilization or over-utilization" means repetition of instances of under-utilization or over-utilization within a specific medical case or multiple cases by a participating health care provider.
(34-d)ii"Pattern of practice review" means an evaluation, conducted by two or more health care providers licensed under the same authority and with the same or similar specialty as the participating provider under review, that includes an evaluation of:
(A)iithe appropriateness of both the level and the quality of health care services provided to an injured employee;
(B)iithe appropriateness of treatment, hospitalization, or office visits consistent with nationally recognized, scientifically valid, outcome-based treatment standards and guidelines;
(C)iiutilization control; and
(D)iithe existence of a pattern of practice of under-utilization or over-utilization.
(35-a)ii"Person" means any natural or artificial person, including an individual, partnership, association, corporation, organization, trust, hospital district, community mental health center, mental retardation center, mental health and mental retardation center, limited liability company, or limited liability partnership.
(35-b)ii"Preauthorization" means the process required to request approval to provide a specific treatment or service before the treatment or service is provided.
(35-c)ii"Certified provider network" or "provider network" means a network of participating health care providers using case management procedures that is certified by the department in accordance with Chapter 408B and is used by a carrier to provide health care services to injured employees. A certified provider network may be a preferred provider organization, a health maintenance organization, a nonprofit health corporation certified under Section 162.001, Occupations Code, or a network of providers established by an insurance carrier that has been certified by the department.
(35-d)ii"Quality improvement program" means a system designed to continuously examine, monitor, and revise processes and systems that support and improve administrative and clinical functions in accordance with Section 408B.203.
(37)ii"Representative" means a person, including an attorney, authorized by
the department [commission] to assist or represent an employee, a person claiming a
death benefit, or an insurance carrier in a matter arising under this subtitle that relates
to the payment of compensation.
(38-a)ii"Retrospective review" means the process of reviewing whether services that have been provided to an injured employee are reasonable and necessary services.
(38-b)ii"Rural area" means:
(A)iia county with a population of 50,000 or less;
Tuesday, May 17, 2005 SENATE JOURNAL 2267
(B)iian area that is not designated as an urbanized area by the United States Census Bureau; or
(C)iiany other area designated as rural under rules adopted by the commissioner.
(39)ii"Sanction" means a penalty or other punitive action or remedy imposed
by the department [commission] on an insurance carrier, representative, employee,
employer, or health care provider for an act or omission in violation of this subtitle or
a rule or order of the commissioner [commission].
(39-a)ii"Screening criteria" means the written policies, decision rules, medical protocols, and treatment guidelines used by a provider network as set forth in Section 408B.352(c) as part of utilization review and retrospective review.
(39-b)ii"Service area" means a geographic area within which health care services from network providers are available and accessible to employees who live within that geographic area.
(42)ii"Treating doctor" means the doctor who is primarily responsible for the employee's health care for an injury. Within a provider network, the term includes a participating provider who is primarily responsible for:
(A)iithe efficient management of health care services for an injured employee;
(B)iireturn-to-work outcomes; and
(C)iiall referrals to other health care providers.
(42-a)ii"Utilization control" means a systematic process of implementing measures that assure overall quality, management and cost containment of services delivered, including compliance with nationally recognized, scientifically valid, outcome-based treatment standards and guidelines.
(42-b)ii"Utilization review" has the meaning assigned by Section 2, Article 21.58A, Insurance Code.
(42-c)ii"Utilization review agent" means any entity with which a provider network contracts or subcontracts to provide utilization review under Article 21.58A, Insurance Code.
(42-d)ii"Utilization review plan" means the screening criteria, retrospective review procedures, and utilization review procedures of an insurance carrier, provider network, or utilization review agent.
(44)ii"Workers' compensation insurance coverage" means coverage to secure the payment of compensation provided through:
(A)iian approved insurance policy [to secure the payment of
compensation];
(B)ii[coverage to secure the payment of compensation through]
self-insurance, as provided by this subtitle; or
(C)ii[coverage provided by] a governmental entity, as provided by
Subtitle C [to secure the payment of compensation].
SECTIONi1.004.iiSection 401.021, Labor Code, is amended to read as follows:
Sec.i401.021.iiAPPLICATION OF OTHER ACTS. Except as otherwise provided by this subtitle:
2268 79th Legislature — Regular Session 71st Day
(1)iia proceeding, hearing, judicial review, or enforcement of a
commissioner [commission] order, decision, or rule under this title is governed by the
following subchapters and sections of Chapter 2001, Government Code:
(A)iiSubchapters A, B, D, E, G, and H, excluding Sections 2001.004(3) and 2001.005;
(B)iiSections 2001.051, 2001.052, and 2001.053;
(C)iiSections 2001.056 through 2001.062; and
(D)iiSection 2001.141(c);
(2)iia proceeding, hearing, judicial review, or enforcement of a
commissioner [commission] order, decision, or rule under this title is governed by
Subchapters A and B, Chapter 2002, Government Code, excluding Sections
2002.001(3) [2002.001(2)] and 2002.023;
(3)iiChapter 551, Government Code, applies to a proceeding under this subtitle, other than:
(A)ii[a benefit review conference;
[(B)]iia contested case hearing;
(B)i[(C)iian appeals panel proceeding;
[(D)]iiarbitration; or
(C)i[(E)]iianother proceeding involving a determination on a workers'
compensation claim; and
(4)iiChapter 552, Government Code, applies to a workers' compensation
record of the department or the office of injured employee counsel [commission or the
research center].
SECTIONi1.005.iiSection 401.023(b), Labor Code, is amended to read as follows:
(b)iiThe department [commission] shall compute and publish the interest and
discount rate quarterly, using the treasury constant maturity rate for one-year treasury
bills issued by the United States government, as published by the Federal Reserve
Board on the 15th day preceding the first day of the calendar quarter for which the
rate is to be effective, plus 3.5 percent. For this purpose, calendar quarters begin
January 1, April 1, July 1, and October 1.
SECTIONi1.006.iiSections 401.024(b)-(d), Labor Code, are amended to read as follows:
(b)iiNotwithstanding another provision of this subtitle that specifies the form,
manner, or procedure for the transmission of specified information, the commissioner
[commission] by rule may permit or require the use of an electronic transmission
instead of the specified form, manner, or procedure. If the electronic transmission of
information is not authorized or permitted by commissioner [commission] rule, the
transmission of that information is governed by any applicable statute or rule that
prescribes the form, manner, or procedure for the transmission, including standards
adopted by the Department of Information Resources.
(c)iiThe commissioner [commission] may designate and contract with a data
collection agent to fulfill the data collection requirements of this subtitle.
Tuesday, May 17, 2005 SENATE JOURNAL 2269
(d)iiThe commissioner [executive director] may prescribe the form, manner, and
procedure for transmitting any authorized or required electronic transmission,
including requirements related to security, confidentiality, accuracy, and
accountability.
SECTIONi1.007.iiThe following laws are repealed:
(1)iiSection 401.002, Labor Code; and
(2)iiSection 401.011(38), Labor Code.
PART 2. AMENDMENTS TO CHAPTER 402, LABOR CODE
SECTIONi1.011.iiThe heading to Chapter 402, Labor Code, is amended to read as follows:
CHAPTER 402. OPERATION AND ADMINISTRATION OF [TEXAS]
WORKERS' COMPENSATION SYSTEM [COMMISSION]
SECTIONi1.012.iiThe heading to Subchapter A, Chapter 402, Labor Code, is amended to read as follows:
SUBCHAPTER A. GENERAL ADMINISTRATION OF SYSTEM
[ORGANIZATION]
SECTIONi1.013.iiSection 402.001, Labor Code, is amended to read as follows:
Sec.i402.001.iiADMINISTRATION OF SYSTEM: TEXAS DEPARTMENT OF
INSURANCE. Except as provided by Section 402.002, the Texas Department of
Insurance is the state agency designated to oversee and operate the workers'
compensation system of this state. [MEMBERSHIP REQUIREMENTS. (a) The
Texas Workers' Compensation Commission is composed of six members appointed
by the governor with the advice and consent of the senate.
[(b)iiAppointments to the commission shall be made without regard to the race,
color, disability, sex, religion, age, or national origin of the appointee. Section
401.011(16) does not apply to the use of the term "disability" in this subsection.
[(c)iiThree members of the commission must be employers of labor and three
members of the commission must be wage earners. A person is not eligible for
appointment as a member of the commission if the person provides services subject to
regulation by the commission or charges fees that are subject to regulation by the
commission.
[(d)iiIn making appointments to the commission, the governor shall attempt to
reflect the social, geographic, and economic diversity of the state. To ensure balanced
representation, the governor may consider:
[(1)iithe geographic location of a prospective appointee's domicile;
[(2)iithe prospective appointee's experience as an employer or wage earner;
[(3)iithe number of employees employed by a prospective member who
would represent employers; and
[(4)iithe type of work performed by a prospective member who would
represent wage earners.
[(e)iiThe governor shall consider the factors listed in Subsection (d) in
appointing a member to fill a vacancy on the commission.
[(f)iiIn making an appointment to the commission, the governor shall consider
recommendations made by groups that represent employers or wage earners.]
SECTIONi1.014.iiSection 402.002, Labor Code, is amended to read as follows:
2270 79th Legislature — Regular Session 71st Day
Sec.i402.002.iiADMINISTRATION OF SYSTEM: OFFICE OF INJURED
EMPLOYEE COUNSEL. The office of injured employee counsel established under
Chapter 404 shall perform the functions regarding the provision of workers'
compensation benefits in this state designated by this subtitle as under the authority of
that office. [TERMS; VACANCY. (a) Members of the commission hold office for
staggered two-year terms, with the terms of three members expiring on February 1 of
each year.
[(b)iiIf a vacancy occurs during a term, the governor shall fill the vacancy for the
unexpired term. The replacement must be from the group represented by the member
being replaced.]
SECTIONi1.015.iiThe heading to Subchapter B, Chapter 402, Labor Code, is amended to read as follows:
SUBCHAPTER B. SYSTEM GOALS [ADMINISTRATION]
SECTIONi1.016.iiSection 402.021, Labor Code, is renumbered as Section 402.051, Labor Code, and amended to read as follows:
Sec.i402.051i[402.021].iiGOALS; LEGISLATIVE INTENT. (a) The basic
goals of the workers' compensation system of this state are as follows:
(1)iieach employee shall be treated with dignity and respect when injured on the job;
(2)iieach injured employee shall have access to a fair and accessible dispute resolution process;
(3)iieach injured employee shall have access to prompt, high-quality medical care within the framework established by this subtitle; and
(4)iieach injured employee shall receive services to facilitate the employee's return to employment as soon as it is considered safe and appropriate by the employee's health care provider.
(b)iiIt is the intent of the legislature that, in implementing the goals described by Subsection (a), the workers' compensation system of this state must:
(1)iipromote safe and healthy workplaces through appropriate incentives, education, and other actions;
(2)iiencourage the safe and timely return of injured employees to productive roles in the workplace;
(3)iiprovide appropriate income benefits and medical benefits in a manner that is timely and cost-effective;
(4)iiprovide timely, appropriate, and high-quality medical care supporting restoration of the injured employee's physical condition and earning capacity;
(5)iiminimize the likelihood of disputes and resolve them promptly and fairly when identified;
(6)iipromote compliance with this subtitle and rules adopted under this subtitle through performance-based incentives;
(7)iipromptly detect and appropriately address acts or practices of noncompliance with this subtitle and rules adopted under this subtitle;
(8)iieffectively educate and clearly inform each person who participates in the system as a claimant, employer, insurance carrier, health care provider, or other participant of the person's rights and responsibilities under the system and how to appropriately interact within the system; and
Tuesday, May 17, 2005 SENATE JOURNAL 2271
(9)iitake maximum advantage of technological advances to provide the
highest levels of service possible to system participants and to promote
communication among system participants. [COMMISSION DIVISIONS. (a) The
commission shall have:
[(1)iia division of workers' health and safety;
[(2)iia division of medical review;
[(3)iia division of compliance and practices; and
[(4)iia division of hearings.
[(b)iiIn addition to the divisions listed by Subsection (a), the executive director,
with the approval of the commission, may establish divisions within the commission
for effective administration and performance of commission functions. The executive
director may allocate and reallocate functions among the divisions.
[(c)iiThe executive director shall appoint the directors of the divisions of the
commission. The directors serve at the pleasure of the executive director.]
SECTIONi1.017.iiSubchapter B, Chapter 402, Labor Code, is amended by adding Section 402.052 to read as follows:
Sec.i402.052.iiGENERAL WORKERS' COMPENSATION MISSION OF DEPARTMENT. As provided by this subtitle, the department shall work to promote and help ensure the safe and timely return of injured employees to productive roles in the workforce.
SECTIONi1.018.iiThe heading to Subchapter C, Chapter 402, Labor Code, is amended to read as follows:
SUBCHAPTER C. DEPARTMENT WORKFORCE EDUCATION AND
SAFETY FUNCTIONS [EXECUTIVE DIRECTOR AND PERSONNEL]
SECTIONi1.019.iiSubchapter C, Chapter 402, Labor Code, is amended by adding Sections 402.101 and 402.102 to read as follows:
Sec.i402.101.iiGENERAL DUTIES; FUNDING. (a) The department shall perform the workforce education and safety functions of the workers' compensation system of this state.
(b)iiThe operations of the department under this subtitle are funded through the maintenance tax assessed under Section 403.002.
Sec.i402.102.iiEDUCATIONAL PROGRAMS. (a) The department shall provide education on best practices for return-to-work programs and workplace safety.
(b)iiThe department shall evaluate and develop the most efficient, cost-effective procedures for implementing this section.
SECTIONi1.020.iiSection 402.082, Labor Code, is transferred to Subchapter C, Chapter 402, Labor Code, renumbered as Section 402.103, Labor Code, and amended to read as follows:
Sec.i402.103i[402.082].iiINJURY INFORMATION MAINTAINED BY
DEPARTMENT [COMMISSION]. (a) The department [commission] shall maintain
information on every compensable injury as to the:
(1)iirace, ethnicity, and sex of the claimant;
(2)iiclassification of the injury;
(3)iiamount of wages earned by the claimant before the injury;
(4)iiidentification of whether the claimant is receiving medical care through a workers' compensation health care network certified under Chapter 408B; and
2272 79th Legislature — Regular Session 71st Day
(5)i[(4)]iiamount of compensation received by the claimant.
(b)iiThe department shall provide information maintained under Subsection (a) to the office of injured employee counsel. The confidentiality requirements imposed under Section 402.202 apply to injury information maintained by the department.
SECTIONi1.021.iiThe heading to Subchapter D, Chapter 402, Labor Code, is amended to read as follows:
SUBCHAPTER D. GENERAL POWERS AND DUTIES OF
COMMISSIONER AND DEPARTMENT [COMMISSION]
SECTIONi1.022.iiSection 402.042, Labor Code, is transferred to Subchapter D, Chapter 402, Labor Code, renumbered as Section 402.151, Labor Code, and amended to read as follows:
Sec.i402.151i[402.042].iiGENERAL POWERS AND DUTIES OF
COMMISSIONER AND DEPARTMENT [EXECUTIVE DIRECTOR]. (a) The
commissioner [executive director] shall conduct the [day-to-day] operations of the
department under this subtitle [commission in accordance with policies established by
the commission and otherwise implement commission policy].
(b)iiThe commissioner or the commissioner's designee, acting under this subtitle,
[executive director] may:
(1)iiinvestigate misconduct;
(2)iihold hearings;
(3)iiissue subpoenas to compel the attendance of witnesses and the production of documents in accordance with Subchapter C, Chapter 36, Insurance Code;
(4)iiadminister oaths;
(5)iitake testimony directly or by deposition or interrogatory;
(6)iiassess and enforce penalties established under this subtitle;
(7)iienter appropriate orders as authorized by this subtitle;
(8)iicorrect clerical errors in the entry of orders;
(9)iiinstitute an action [in the commission's name] to enjoin the violation of
this subtitle;
(10)iiinitiate an action under Section 410.254 to intervene in a judicial proceeding;
(11)iiprescribe the form, manner, and procedure for transmission of
information to the department [commission]; and
(12)iidelegate all powers and duties as necessary.
(c)iiThe commissioner [executive director] is the agent for service of process
under this subtitle on out-of-state employers.
(d)iiThe department shall operate regional offices throughout this state as necessary to implement the duties of the department under this subtitle.
SECTIONi1.023.iiSection 402.061, Labor Code, is renumbered as Section 402.152, Labor Code, and amended to read as follows:
Sec.i402.152i[402.061].iiADOPTION OF RULES. The commissioner
[commission] shall adopt rules as necessary for the implementation and enforcement
of this subtitle.
SECTIONi1.024.iiSection 402.062, Labor Code, is renumbered as Section 402.153, Labor Code, and amended to read as follows:
Tuesday, May 17, 2005 SENATE JOURNAL 2273
Sec.i402.153i[402.062].iiACCEPTANCE OF CERTAIN GIFTS, GRANTS, OR
[AND] DONATIONS. [(a)] The department [commission] may accept gifts, grants,
or donations for the operation of this subtitle as provided by rules adopted by the
commissioner [commission].
[(b)iiNotwithstanding Chapter 575, Government Code, the commission may
accept a grant paid by the Texas Mutual Insurance Company established under Article
5.76-3, Insurance Code, to implement specific steps to control and lower medical
costs in the workers' compensation system and to ensure the delivery of quality
medical care. The commission must publish the name of the grantor and the purpose
and conditions of the grant in the Texas Register and provide for a 20-day public
comment period before the commission may accept the grant. The commission shall
acknowledge acceptance of the grant at a public meeting. The minutes of the public
meeting must include the name of the grantor, a description of the grant, and a general
statement of the purposes for which the grant will be used.]
SECTIONi1.025.iiSection 402.064, Labor Code, is renumbered as Section 402.154, Labor Code, and amended to read as follows:
Sec.i402.154i[402.064].iiFEES. In addition to fees established by this subtitle,
the commissioner [commission] shall set reasonable fees for services provided to
persons requesting services from the department under this subtitle [commission],
including services provided under Subchapter E.
SECTIONi1.026.iiSection 402.065, Labor Code, is renumbered as Section 402.155, Labor Code, and amended to read as follows:
Sec.i402.155i[402.065].iiEMPLOYMENT OF COUNSEL. Notwithstanding
Article 1.09-1, Insurance Code, or any other law, the commissioner [The commission]
may employ counsel to represent the department [commission] in any legal action the
department [commission] is authorized to initiate under this subtitle.
SECTIONi1.027.iiSection 402.066, Labor Code, is renumbered as Section 402.156, Labor Code, and amended to read as follows:
Sec.i402.156i[402.066].iiRECOMMENDATIONS TO LEGISLATURE. (a) The
commissioner [commission] shall consider and recommend to the legislature changes
to this subtitle, including any statutory changes required by an evaluation conducted
under Section 402.162.
(b)iiThe commissioner [commission] shall forward the recommended changes to
the legislature not later than December 1 of each even-numbered year.
SECTIONi1.028.iiSection 402.067, Labor Code, is renumbered as Section 402.157, Labor Code, and amended to read as follows:
Sec.i402.157i[402.067].iiADVISORY COMMITTEES. The commissioner
[commission] may appoint advisory committees under this subtitle as the
commissioner [it] considers necessary.
SECTIONi1.029.iiSection 402.068, Labor Code, is renumbered as Section 402.158, Labor Code, and amended to read as follows:
Sec.i402.158i[402.068].iiDELEGATION OF RIGHTS AND DUTIES. Except as
expressly provided by this subchapter, the commissioner [commission] may not
delegate rulemaking and policy-making functions [rights and duties] imposed on the
commissioner and the department [it] by this subchapter.
2274 79th Legislature — Regular Session 71st Day
SECTIONi1.030.iiSection 402.022, Labor Code, is transferred to Subchapter D, Chapter 402, Labor Code, renumbered as Section 402.159, Labor Code, and amended to read as follows:
Sec.i402.159i[402.022].iiPUBLIC INTEREST INFORMATION. (a) The
department [executive director] shall prepare information of public interest describing
the functions of the commissioner and the department under this subtitle
[commission] and the procedures by which complaints are filed with and resolved by
the department under this subtitle [commission].
(b)iiThe department [executive director] shall make the information available to
the public and appropriate state agencies.
(c)iiThe commissioner by rule shall ensure that each department form, standard letter, and brochure under this subtitle:
(1)iiis written in plain language;
(2)iiis in a readable and understandable format; and
(3)iicomplies with all applicable requirements relating to minimum readability requirements.
(d)iiThe department shall make informational materials described by this section available in English and Spanish.
SECTIONi1.031.iiSection 402.023, Labor Code, is transferred to Subchapter D, Chapter 402, Labor Code, renumbered as Section 402.160, Labor Code, and amended to read as follows:
Sec.i402.160i[402.023].iiCOMPLAINT INFORMATION. (a) The
commissioner shall:
(1)iiadopt rules regarding the filing of a complaint under this subtitle against an individual or entity subject to regulation under this subtitle; and
(2)iiensure that information regarding the complaint process is available on the department's Internet website.
(b)iiThe rules adopted under this section must, at a minimum:
(1)iiensure that the department clearly defines in rule the method for filing a complaint; and
(2)iidefine what constitutes a frivolous complaint under this subtitle.
(c)iiThe department shall develop and post on the department's Internet website:
(1)iia simple standardized form for filing complaints under this subtitle; and
(2)iiinformation regarding the complaint filing process.
(d)iiThe department [executive director] shall keep an information file about
each written complaint filed with the department under this subtitle [commission] that
is unrelated to a specific workers' compensation claim. The information must include:
(1)iithe date the complaint is received;
(2)iithe name of the complainant;
(3)iithe subject matter of the complaint;
(4)iia record of all persons contacted in relation to the complaint;
(5)iia summary of the results of the review or investigation of the complaint; and
(6)iifor complaints for which the department [commission] took no action,
an explanation of the reason the complaint was closed without action.
Tuesday, May 17, 2005 SENATE JOURNAL 2275
(e)i[(b)]iiFor each written complaint that is unrelated to a specific workers'
compensation claim that the department [commission] has authority to resolve, the
department [executive director] shall provide to the person filing the complaint and
the person about whom the complaint is made information about the department's
[commission's] policies and procedures under this subtitle relating to complaint
investigation and resolution. The department [commission], at least quarterly and until
final disposition of the complaint, shall notify those persons about the status of the
complaint unless the notice would jeopardize an undercover investigation.
SECTIONi1.032.iiSubchapter D, Chapter 402, Labor Code, is amended by adding Sections 402.161-402.166 to read as follows:
Sec.i402.161.iiPRIORITIES FOR COMPLAINT INVESTIGATIONS. (a) The department shall assign priorities to complaint investigations under this subtitle based on risk. In developing priorities under this section, the department shall develop a formal, risk-based complaint investigation system that considers:
(1)iithe severity of the alleged violation;
(2)iiwhether the alleged violator showed continued or wilful noncompliance; and
(3)iiwhether a commissioner order has been violated.
(b)iiThe commissioner may develop additional risk-based criteria as determined necessary.
Sec.i402.162.iiSTRATEGIC MANAGEMENT; EVALUATION. (a) The commissioner shall implement a strategic management plan that:
(1)iirequires the department to evaluate and analyze the effectiveness of the department in implementing:
(A)iithe statutory goals adopted under Section 402.051, particularly goals established to encourage the safe and timely return of injured employees to productive work roles; and
(B)iithe other standards and requirements adopted under this code, the Insurance Code, and other applicable laws of this state; and
(2)iimodifies the organizational structure and programs of the department as necessary to address shortfalls in the performance of the workers' compensation system of this state.
(b)iiThe department shall conduct research regarding the system as provided by Chapter 405 to obtain the necessary data and analysis to perform the evaluations required by this section.
Sec.i402.163.iiINFORMATION TO EMPLOYERS. (a) The department shall provide employers with information on methods to enhance the ability of an injured employee to return to work. The information may include access to available research and best practice information regarding return-to-work programs for employers.
(b)iiThe department shall augment return-to-work program information provided to employers to include information regarding methods for an employer to appropriately assist an injured employee to obtain access to doctors who:
(1)iiprovide high-quality care; and
(2)iiuse effective occupational medicine treatment practices that lead to returning employees to productive work.
2276 79th Legislature — Regular Session 71st Day
(c)iiThe information provided to employers under this section must help to foster:
(1)iieffective working relationships with local doctors and with insurance carriers or provider networks to improve return-to-work communication; and
(2)iiaccess to return-to-work coordination services provided by insurance carriers and provider networks.
(d)iiThe department shall develop and make available the information described by this section.
Sec.i402.164.iiINFORMATION TO EMPLOYEES. The department shall provide injured employees with information regarding the benefits of early return to work. The information must include information on how to receive assistance in accessing high-quality medical care through the workers' compensation system.
Sec.i402.165.iiSINGLE POINT OF CONTACT. To the extent determined feasible by the commissioner, the department shall establish a single point of contact for injured employees receiving services from the department.
Sec.i402.166.iiINCENTIVES; PERFORMANCE-BASED OVERSIGHT. (a) The commissioner by rule shall adopt requirements that:
(1)iiprovide incentives for overall compliance in the workers' compensation system of this state; and
(2)iiemphasize performance-based oversight linked to regulatory outcomes.
(b)iiThe commissioner shall develop key regulatory goals to be used in assessing the performance of insurance carriers, provider networks, and health care providers. The goals adopted under this subsection must align with the general regulatory goals of the department under this subtitle, such as improving workplace safety and return-to-work outcomes, in addition to goals that support timely payment of benefits and increased communication.
(c)iiAt least biennially, the department shall assess the performance of insurance carriers, provider networks, and health care providers in meeting the key regulatory goals. The department shall examine overall compliance records and dispute resolution and complaint resolution practices to identify insurance carriers, provider networks, and health care providers who adversely impact the workers' compensation system and who may require enhanced regulatory oversight. The department shall conduct the assessment through analysis of data maintained by the department and through self-reporting by insurance carriers, provider networks, and health care providers.
(d)iiBased on the performance assessment, the department shall develop regulatory tiers that distinguish among insurance carriers, provider networks, and health care providers who are poor performers, who generally are average performers, and who are consistently high performers. The department shall focus its regulatory oversight on insurance carriers, provider networks, and health care providers identified as poor performers.
(e)iiThe commissioner by rule shall develop incentives within each tier under Subsection (d) that promote greater overall compliance and performance. The regulatory incentives may include modified penalties, self-audits, or flexibility based on performance.
(f)iiThe department shall:
Tuesday, May 17, 2005 SENATE JOURNAL 2277
(1)iiensure that high-performing entities are publicly recognized; and
(2)iiallow those entities to use that designation as a marketing tool.
(g)iiIn conjunction with the department's accident prevention services under Subchapter E, Chapter 411, the department shall conduct audits of accident prevention services offered by insurance carriers based on the comprehensive risk assessment. The department shall periodically review those services, but may provide incentives for less regulation of carriers based on performance.
SECTIONi1.033.iiSection 402.071, Labor Code, is renumbered as Section 402.167, Labor Code, and amended to read as follows:
Sec.i402.167i[402.071].iiREPRESENTATIVES. (a) The commissioner by rule
[commission] shall establish qualifications for a representative and shall adopt rules
establishing procedures for authorization of representatives.
(b)iiA representative may receive a fee for providing representation under this
subtitle only if the representative [is]:
(1)iiis an adjuster representing an insurance carrier; or
(2)iiis licensed to practice law.
SECTIONi1.034.iiSection 402.072, Labor Code, is renumbered as Section 402.168, Labor Code, and amended to read as follows:
Sec.i402.168i[402.072].iiSANCTIONS. (a)iiThe department may impose
sanctions against any individual or entity monitored or regulated by the department
under this subtitle.
(b)iiThe commissioner by rule shall establish criteria for imposing sanctions pursuant to this subtitle. Rules adopted under this section are in addition to, and do not affect, the rules adopted under Section 415.023(b).
(c)iiThe criteria for recommending or imposing sanctions may include anything the commissioner considers relevant, including:
(1)iia sanction of the doctor or other health care provider by the department for a violation of Chapter 413 or Chapter 415;
(2)iia sanction by the Medicare or Medicaid program for:
(A)iisubstandard medical care;
(B)iiovercharging;
(C)iioverutilization of medical services; or
(D)iiany other substantive noncompliance with requirements of those programs regarding professional practice or billing;
(3)iievidence from the department's medical records that the applicable insurance carrier's utilization review practices or the doctor's or health care provider's charges, fees, diagnoses, treatments, evaluations, or impairment ratings are substantially different from those the department finds to be fair and reasonable based on either a single determination or a pattern of practice;
(4)iia suspension or other relevant practice restriction of the doctor's or other health care provider's license by an appropriate licensing authority;
(5)iiprofessional failure to practice medicine or provide health care, including chiropractic care, in an acceptable manner consistent with the public health, safety, and welfare;
2278 79th Legislature — Regular Session 71st Day
(6)iifindings of fact and conclusions of law made by a court, an administrative law judge of the State Office of Administrative Hearings, or a licensing or regulatory authority; or
(7)iian initial criminal conviction, including a pleading of guilty or nolo contendere, or agreeing to an order of probation without adjudication of guilt under deferred adjudication, without regard to whether a subsequent order allows a withdrawal of a plea of guilty, sets aside a verdict of guilty, or dismisses an information or indictment.
(d)iiThe commissioner by rule shall establish procedures under which an individual or entity may apply for restoration of practice privileges removed by the commissioner based on sanctions imposed under this subtitle.
(e)iiThe department shall act on a recommendation by the medical advisor selected under Section 413.0511 and, after notice and the opportunity for a hearing, may impose sanctions under this section on a doctor or other health care provider or an insurance carrier or may recommend action regarding a utilization review agent.
(f)iiSanctions may include:
(1)iia sanction that deprives a person of the right to practice before the department under this subtitle or of the right to receive remuneration under this subtitle;
(2)iisuspension or revocation of a certificate of authority, license, certification, or permit required for practice in the field of workers' compensation;
(3)iiauthorizing increased or reduced utilization review and preauthorization controls on a doctor or other health care provider;
(4)iireduction of allowable reimbursement;
(5)iimandatory preauthorization of all or certain health care services;
(6)iirequired peer review monitoring, reporting, and audit;
(7)iideletion or suspension from the designated doctor list;
(8)iirestrictions on appointment under this chapter;
(9)iiconditions or restrictions on an insurance carrier regarding actions by insurance carriers under this subtitle in accordance with the memorandum of understanding adopted between the commission and the Texas Department of Insurance regarding Article 21.58A, Insurance Code;
(10)iimandatory participation in training classes or other courses as established or certified by the commission; and
(11)iiother appropriate sanction.
(g)iiOnly the commissioner may impose:
(1)iia sanction that deprives a person of the right to practice before the department under this subtitle or of the right to receive remuneration under this subtitle for a period exceeding 30 days; or
(2)iianother sanction suspending for more than 30 days or revoking a certificate of authority, license, certification, or permit required for practice in the field of workers' compensation.
(h)iiA sanction imposed by the department is binding pending appeal. [Only the
commission may impose:
Tuesday, May 17, 2005 SENATE JOURNAL 2279
[(1)iia sanction that deprives a person of the right to practice before the
commission or of the right to receive remuneration under this subtitle for a period
exceeding 30 days; or
[(2)iianother sanction suspending for more than 30 days or revoking a
license, certification, or permit required for practice in the field of workers'
compensation.]
SECTIONi1.035.iiSection 402.073, Labor Code, is renumbered as Section 402.169, Labor Code, and amended to read as follows:
Sec.i402.169i[402.073].iiCOOPERATION WITH STATE OFFICE OF
ADMINISTRATIVE HEARINGS. (a) The commissioner [commission] and the chief
administrative law judge of the State Office of Administrative Hearings by rule shall
adopt a memorandum of understanding governing administrative procedure law
hearings under this subtitle conducted by the State Office of Administrative Hearings
in the manner provided for a contested case hearing under Chapter 2001, Government
Code [(the administrative procedure law)].
(b)iiIn a case in which a hearing is conducted by the State Office of
Administrative Hearings under Section 411.049, [413.031,] 413.055, or 415.034, the
administrative law judge who conducts the hearing for the State Office of
Administrative Hearings shall enter the final decision in the case after completion of
the hearing.
(c)iiIn a case in which a hearing is conducted in conjunction with Section
402.168 or [402.072,] 407.046, [or 408.023,] and in other cases under this subtitle
other than cases subject to Subchapter C, Chapter 413 [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
[commission] for final consideration and decision by the commissioner [commission].
SECTIONi1.036.iiSection 402.081, Labor Code, is renumbered as Section 402.201, Labor Code, and amended to read as follows:
Sec.i402.201i[402.081].iiWORKERS' COMPENSATION [COMMISSION]
RECORDS. (a) The commissioner [executive director] is the custodian of the
department's [commission's] records under this subtitle and shall perform the duties of
a custodian required by law, including providing copies and the certification of
records.
(b)iiThe department shall comply with records retention schedules as provided
by Section 441.185, Government Code [executive director may destroy a record
maintained by the commission pertaining to an injury after the 50th anniversary of the
date of the injury to which the record refers unless benefits are being paid on the claim
on that date].
(c)iiA record maintained by the department under this subtitle [commission] may
be preserved in any format permitted by Chapter 441, Government Code, and rules
adopted by the Texas State Library and Archives Commission under that chapter.
(d)iiThe department [commission] may charge a reasonable fee for making
available for inspection any of its information that contains confidential information
that must be redacted before the information is made available. However, when a
request for information is for the inspection of 10 or fewer pages, and a copy of the
information is not requested, the department [commission] may charge only the cost
2280 79th Legislature — Regular Session 71st Day
SECTIONi1.037.iiSection 402.083, Labor Code, is renumbered as Section 402.202, Labor Code, and amended to read as follows:
Sec.i402.202i[402.083].iiCONFIDENTIALITY OF INJURY INFORMATION.
(a) Information in or derived from a claim file regarding an employee is confidential
and may not be disclosed by the department or the State Office of Risk Management
[commission] except as provided by this subtitle.
(b)iiInformation concerning an employee who has been finally adjudicated of wrongfully obtaining payment under Section 415.008 is not confidential.
SECTIONi1.038.iiSection 402.084, Labor Code, is renumbered as Section 402.203, Labor Code, and amended to read as follows:
Sec.i402.203i[402.084].iiRECORD CHECK; RELEASE OF INFORMATION.
(a) The department [commission] shall perform and release a record check on an
employee, including current or prior injury information, to the parties listed in
Subsection (b) if:
(1)iithe claim is:
(A)iiopen or pending before the department [commission];
(B)iion appeal to a court of competent jurisdiction; or
(C)iithe subject of a subsequent suit in which the insurance carrier or the subsequent injury fund is subrogated to the rights of the named claimant; and
(2)iithe requesting party requests the release on a form prescribed by the
commissioner [commission] for this purpose and provides all required information.
(b)iiInformation on a claim may be released as provided by Subsection (a) to:
(1)iithe employee or the employee's legal beneficiary;
(2)iithe employee's or the legal beneficiary's representative;
(3)iithe employer at the time of injury;
(4)iithe insurance carrier;
(5)iithe Texas Certified Self-Insurer Guaranty Association established under Subchapter G, Chapter 407, if that association has assumed the obligations of an impaired employer;
(6)iithe Texas Property and Casualty Insurance Guaranty Association, if that association has assumed the obligations of an impaired insurance company;
(7)iia third-party litigant in a lawsuit in which the cause of action arises from the incident that gave rise to the injury; or
(8)iia subclaimant under Section 409.009 that is an insurance carrier that has
adopted an antifraud plan under Subchapter B, Chapter 704 [Article 3.97-3],
Insurance Code, or the authorized representative of such a subclaimant.
(c)iiThe requirements of Subsection (a)(1) do not apply to a request from a third-party litigant described by Subsection (b)(7).
(d)iiInformation on a claim relating to a subclaimant under Subsection (b)(8) may include information, in an electronic data format, on all workers' compensation claims necessary to determine if a subclaim exists. The information on a claim
Tuesday, May 17, 2005 SENATE JOURNAL 2281
(1)iireasonable security parameters for all transfers of information requested under this subsection in electronic data format; and
(2)iirequirements regarding the maintenance of electronic data in the possession of a subclaimant or the subclaimant's representative.
SECTIONi1.039.iiSection 402.085, Labor Code, is renumbered as Section 402.204, Labor Code, and amended to read as follows:
Sec.i402.204i[402.085].iiEXCEPTIONS TO CONFIDENTIALITY. (a) The
department [commission] shall release information on a claim to:
(1)ii[the Texas Department of Insurance for any statutory or regulatory
purpose;
[(2)]iia legislative committee for legislative purposes;
(2)i[(3)]iia state or federal elected official requested in writing to provide
assistance by a constituent who qualifies to obtain injury information under Section
402.203(b) [402.084(b)], if the request for assistance is provided to the department
[commission];
(3)i[(4)]iithe workers' compensation research and evaluation group
[Research and Oversight Council on Workers' Compensation] for research purposes;
[or]
(4)i[(5)]iithe attorney general or another entity that provides child support
services under Part D, Title IV, Social Security Act (42 U.S.C. Section 651 et seq.),
relating to:
(A)iiestablishing, modifying, or enforcing a child support or medical support obligation; or
(B)iilocating an absent parent; or
(5)iithe office of injured employee counsel for any statutory or regulatory purpose that relates to a duty of that office.
(b)iiThe department [commission] may release information on a claim to a
governmental agency, political subdivision, or regulatory body to use to:
(1)iiinvestigate an allegation of a criminal offense or licensing or regulatory violation;
(2)iiprovide:
(A)iiunemployment compensation benefits;
(B)iicrime victims compensation benefits;
(C)iivocational rehabilitation services; or
(D)iihealth care benefits;
(3)iiinvestigate occupational safety or health violations;
(4)iiverify income on an application for benefits under an income-based state or federal assistance program; or
(5)iiassess financial resources in an action, including an administrative action, to:
2282 79th Legislature — Regular Session 71st Day
(A)iiestablish, modify, or enforce a child support or medical support obligation;
(B)iiestablish paternity;
(C)iilocate an absent parent; or
(D)iicooperate with another state in an action authorized under Part D,
Title IV, Social Security Act (42 U.S.C. Section 651 et seq.), or Chapter 231, Family
[76, Human Resources] Code.
SECTIONi1.040.iiSection 402.086, Labor Code, is renumbered as Section 402.205, Labor Code, to read as follows:
Sec.i402.205i[402.086].iiTRANSFER OF CONFIDENTIALITY. (a)
Information relating to a claim that is confidential under this subtitle remains
confidential when released to any person, except when used in court for the purposes
of an appeal.
(b)iiThis section does not prohibit an employer from releasing information about a former employee to another employer with whom the employee has applied for employment, if that information was lawfully acquired by the employer releasing the information.
SECTIONi1.041.iiSection 402.087, Labor Code, is renumbered as Section 402.206, Labor Code, and amended to read as follows:
Sec.i402.206i[402.087].iiINFORMATION AVAILABLE TO [PROSPECTIVE]
EMPLOYERS. (a) A prospective employer who has workers' compensation
insurance coverage and who complies with this subchapter is entitled to obtain
information from the department on the prior injuries of an applicant for employment
if the employer obtains written authorization from the applicant before making the
request.
(b)iiA current employer who has workers' compensation insurance and who complies with this subchapter is entitled to obtain information from the department on the prior injuries of an employee, if the employer obtains written authorization from the employee before making the request, if the employer requests the information from the department not later than the 30th day after the date of hire of the employee. The employer may only use the information obtained under this subsection to verify information the employee has provided to the employer in an employment application.
(c)iiThe employer must make a [the] request for information under Subsection
(a) by telephone or file the request in writing not later than the 14th day after the date
on which the application for employment is made.
(d)iiA [(c)iiThe] request under this section must include the applicant's or
employee's name, address, and social security number.
(e)i[(d)]iiIf a [the] request under Subsection (a) is made in writing, the
authorization must be filed simultaneously. If the request is made by telephone, the
employer must file the authorization not later than the 10th day after the date on which
the request is made.
(f)iiAn employer may not use information obtained under this section in a manner that violates the Americans with Disabilities Act (42 U.S.C. Section 12101 et seq.).
Tuesday, May 17, 2005 SENATE JOURNAL 2283
SECTIONi1.042.iiSection 402.088, Labor Code, is renumbered as Section 402.207, Labor Code, and amended to read as follows:
Sec.i402.207i[402.088].iiREPORT OF PRIOR INJURY. (a) In this section,
"general injury" means an injury other than an injury limited to one or more of the
following:
(1)iian injury to a digit, limb, or member;
(2)iian inguinal hernia; or
(3)iivision or hearing loss.
(b)iiOn receipt of a valid request made under and complying with Section
402.206 [402.087], the department [commission] shall review its records.
(c)i[(b)]iiIf the department [commission] finds that an [the] applicant or an
employee has made any [two or more] general injury claims in the preceding five
years, the department [commission] shall release the date and description of each
injury regarding:
(1)iithe applicant, to the prospective employer; and
(2)iithe employee, to the current employer.
(d)i[(c)]iiThe information may be released in writing or by telephone.
(e)i[(d)]iiIf a prospective [the] employer requests information on three or more
applicants at the same time, the department [commission] may refuse to release
information until it receives the written authorization from each applicant.
[(e)iiIn this section, "general injury" means an injury other than an injury limited
to one or more of the following:
[(1)iian injury to a digit, limb, or member;
[(2)iian inguinal hernia; or
[(3)iivision or hearing loss.]
SECTIONi1.043.iiSection 402.089, Labor Code, is renumbered as Section 402.208, Labor Code, and amended to read as follows:
Sec.i402.208i[402.089].iiFAILURE TO FILE AUTHORIZATION;
ADMINISTRATIVE VIOLATION. (a) A prospective [An] employer who receives
information by telephone from the department [commission] under Section 402.207
[402.088] and who fails to file the necessary authorization in accordance with Section
402.206 [402.087] commits a Class C administrative violation.
(b)iiEach failure to file an authorization is a separate violation.
SECTIONi1.044.iiSection 402.090, Labor Code, is renumbered as Section 402.209, Labor Code, and amended to read as follows:
Sec.i402.209i[402.090].iiSTATISTICAL INFORMATION. The department
[commission], the workers' compensation research and evaluation group [center], or
any other governmental agency may prepare and release statistical information if the
identity of an employee is not explicitly or implicitly disclosed.
SECTIONi1.045.iiSection 402.091, Labor Code, is renumbered as Section 402.210, Labor Code, and amended to read as follows:
Sec.i402.210i[402.091].iiFAILURE TO MAINTAIN CONFIDENTIALITY;
OFFENSE; PENALTY. (a) A person commits an offense if the person knowingly,
intentionally, or recklessly publishes, discloses, or distributes information that is
confidential under this subchapter to a person not authorized to receive the
information directly from the department [commission].
2284 79th Legislature — Regular Session 71st Day
(b)iiA person commits an offense if the person knowingly, intentionally, or recklessly receives information that is confidential under this subchapter and that the person is not authorized to receive.
(c)iiAn offense under this section is a Class A misdemeanor.
(d)iiAn offense under this section may be prosecuted in a court in the county where the information was unlawfully received, published, disclosed, or distributed.
(e)iiA district court in Travis County has jurisdiction to enjoin the use, publication, disclosure, or distribution of confidential information under this section.
SECTIONi1.046.iiSection 402.092, Labor Code, is renumbered as Section 402.211, Labor Code, and amended to read as follows:
Sec.i402.211i[402.092].iiINVESTIGATION FILES CONFIDENTIAL;
DISCLOSURE OF CERTAIN INFORMATION. (a) In this section, "investigation
file" means any information compiled or maintained by the department with respect to
a department investigation authorized under this subtitle or other workers'
compensation law. The term does not include information or material acquired by the
department that is relevant to an investigation by the insurance fraud unit and subject
to Section 701.151, Insurance Code.
(b)iiInformation maintained in the investigation files of the department
[commission] is confidential and may not be disclosed except:
(1)iiin a criminal proceeding;
(2)iiin a hearing conducted by the department [commission];
(3)iion a judicial determination of good cause; [or]
(4)iito a governmental agency, political subdivision, or regulatory body if the disclosure is necessary or proper for the enforcement of the laws of this or another state or of the United States; or
(5)iito an insurance carrier if the investigation file relates directly to a felony regarding workers' compensation or to a claim in which restitution is required to be paid to the insurance carrier.
(c)iiDepartment [(b)iiCommission] investigation files are not open records for
purposes of Chapter 552, Government Code.
(d)i[(c)]iiInformation in an investigation file that is information in or derived
from a claim file, or an employer injury report or occupational disease report, is
governed by the confidentiality provisions relating to that information.
[(d)iiFor purposes of this section, "investigation file" means any information
compiled or maintained by the commission with respect to a commission investigation
authorized by law.]
(e)iiThe department [commission], upon request, shall disclose the identity of a
complainant under this section if the department [commission] finds:
(1)iithe complaint was groundless or made in bad faith; [or]
(2)iithe complaint lacks any basis in fact or evidence; [or]
(3)iithe complaint is frivolous; or
(4)iithe complaint is done specifically for competitive or economic advantage.
(f)iiUpon completion of an investigation in which [where] the department
[commission] determines a complaint is described by Subsection (e), [groundless,
frivolous, made in bad faith, or is not supported by evidence or is done specifically for
Tuesday, May 17, 2005 SENATE JOURNAL 2285
SECTIONi1.047.iiChapter 402, Labor Code, is amended by adding Subchapter F to read as follows:
SUBCHAPTER F. COOPERATION WITH OFFICE OF
INJURED EMPLOYEE COUNSEL
Sec.i402.251.iiCOOPERATION; FACILITIES. (a) The department shall cooperate with the office of injured employee counsel in providing services to claimants under this subtitle.
(b)iiThe department shall provide facilities to the office of injured employee counsel in each regional department office operated to administer the duties of the department under this subtitle.
SECTIONi1.048.iiEffective March 1, 2006, the following laws are repealed:
(1)iiSection 402.0015, Labor Code;
(2)iiSections 402.003-402.012, Labor Code;
(3)iiSections 402.024 and 402.025, Labor Code;
(4)iiSection 402.041, Labor Code;
(5)iiSections 402.043-402.045, Labor Code;
(6)iiSection 402.063, Labor Code;
(7)iiSection 402.0665, Labor Code; and
(8)iiSections 402.069 and 402.070, Labor Code.
SECTIONi1.049.ii(a) The commissioner of insurance shall conduct a review of the rules, policies, and practices of the Texas Department of Insurance regarding the operation of the workers' compensation system of this state. The review must include analysis of the rules, policies, and practices of the Texas Workers' Compensation Commission, as that commission existed before abolishment under this Act, that are continued as rules, policies, and practices of the Texas Department of Insurance until replaced by the commissioner of insurance. In the review, the commissioner shall:
(1)iianalyze the effectiveness of the rules, policies, and practices in implementing the goals of the workers' compensation system as described by Section 402.051, Labor Code, as added by this Act, especially the return-to-work goals; and
(2)iievaluate the existence of any statutory barriers to the implementation of those goals.
(b)iiThe commissioner of insurance shall report the results of the review, together with any recommendations for statutory changes, to the governor, the lieutenant governor, the speaker of the house of representatives, and the members of the 80th Legislature not later than December 1, 2006.
PART 3. AMENDMENTS TO CHAPTER 403, LABOR CODE
SECTIONi1.051.iiThe heading to Chapter 403, Labor Code, is amended to read as follows:
CHAPTER 403. [COMMISSION] FINANCING OF
WORKERS' COMPENSATION SYSTEM
SECTIONi1.052.iiSection 403.001, Labor Code, is amended to read as follows:
2286 79th Legislature — Regular Session 71st Day
Sec.i403.001.ii[COMMISSION] FUNDS. (a) Except as provided by Sections
403.006 and 403.007 or as otherwise provided by law, money collected under this
subtitle, including administrative penalties and advance 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. Notwithstanding
Section 202.101, Insurance Code, or any other law, money deposited in the account
under this section may be appropriated only for the use and benefit of the department
and the office of injured employee counsel as provided by the General Appropriations
Act to pay salaries and other expenses arising from and in connection with the duties
under this title of the department and the office [commission].
(b)iiThe money may be spent as authorized by legislative appropriation on
warrants issued by the comptroller under requisitions made by the commissioner
[commission].
(c)iiMoney deposited in the general revenue fund under this section may be used
to satisfy the requirements of Section 201.052 [Article 4.19], Insurance Code.
SECTIONi1.053.iiSection 403.003, Labor Code, is amended to read as follows:
Sec.i403.003.iiRATE OF ASSESSMENT. (a) The commissioner [commission]
shall set and certify to the comptroller the rate of maintenance tax assessment not later
than October 31 of each year, taking into account:
(1)iiany expenditure projected as necessary for the department [commission]
to:
(A)iiadminister this subtitle during the fiscal year for which the rate of assessment is set; and
(B)iireimburse the general revenue fund as provided by Section 201.052
[Article 4.19], Insurance Code;
(2)iiprojected employee benefits paid from general revenues;
(3)iia surplus or deficit produced by the tax in the preceding year;
(4)iirevenue recovered from other sources, including reappropriated receipts, grants, payments, fees, gifts, and penalties recovered under this subtitle; and
(5)iiexpenditures projected as necessary to support the prosecution of workers' compensation insurance fraud.
(b)iiIn setting the rate of assessment, the commissioner [commission] may not
consider revenue or expenditures related to:
(1)iithe State Office of Risk Management;
(2)iithe workers' compensation research and evaluation group [oversight
council on workers' compensation]; or
(3)iiany other revenue or expenditure excluded from consideration by law.
SECTIONi1.054.iiSection 403.004, Labor Code, is amended to read as follows:
Sec.i403.004.iiCOLLECTION OF TAX AFTER WITHDRAWAL FROM
BUSINESS. The [insurance] commissioner [or the executive director of the
commission] immediately shall proceed to collect taxes due under this chapter from
an insurance carrier that withdraws from business in this state, using legal process as
necessary.
SECTIONi1.055.iiSection 403.005, Labor Code, is amended to read as follows:
Tuesday, May 17, 2005 SENATE JOURNAL 2287
Sec.i403.005.iiTAX RATE SURPLUS OR DEFICIT. (a) If the tax rate set by the
commissioner [commission] for a year does not produce sufficient revenue to make all
expenditures authorized by legislative appropriation, the deficit shall be paid from the
general revenue fund.
(b)iiIf the tax rate set by the commissioner [commission] for a year produces
revenue that exceeds the amount required to make all expenditures authorized by the
legislature, the excess shall be deposited in the general revenue fund to the credit of
the Texas Department of Insurance operating account. Notwithstanding Section
202.101, Insurance Code, or any other law, money deposited in the account under this
section may be appropriated only for the use and benefit of the department as
provided by the General Appropriations Act to pay salaries and other expenses arising
from and in connection with the department's duties under this title [commission].
SECTIONi1.056.iiSection 403.006, Labor Code, as amended by Chapters 211 and 1296, Acts of the 78th Legislature, Regular Session, 2003, is reenacted and amended to read as follows:
Sec.i403.006.iiSUBSEQUENT INJURY FUND. (a) The subsequent injury fund
is a dedicated [general revenue] account in the general revenue fund [in the state
treasury]. Money in the account may be appropriated only for the purposes of this
section or as provided by other law. The subsequent injury fund is not subject to any
provision of law that makes dedicated revenue available for general governmental
purposes and available for the purpose of certification under Section 403.121,
Government Code. [Section 403.095, Government Code, does not apply to the
subsequent injury fund.]
(b)iiThe subsequent injury fund is liable for:
(1)iithe payment of compensation as provided by Section 408D.202
[408.162];
(2)iireimbursement of insurance carrier claims of overpayment of benefits
made under an interlocutory order or decision of the commissioner [commission] as
provided by this subtitle, consistent with the priorities established by rule by the
commissioner [commission]; and
(3)iireimbursement of insurance carrier claims as provided by Sections
408.042 and 413.0141, consistent with the priorities established by rule by the
commissioner [commission; and
[(4)iithe payment of an assessment of feasibility and the development of
regional networks established under Section 408.0221].
(c)iiThe commissioner [executive director] shall appoint an administrator for the
subsequent injury fund.
(d)iiBased on an actuarial assessment of the funding available under Section
403.007(e), the department [commission] may make partial payment of insurance
carrier claims under Subsection (b)(3).
SECTIONi1.057.iiSection 403.007, Labor Code, is amended to read as follows:
Sec.i403.007.iiFUNDING OF SUBSEQUENT INJURY FUND. (a) If a
compensable death occurs and no legal beneficiary survives or a claim for death
benefits is not timely made, the insurance carrier shall pay to the department
[commission] for deposit to the credit of the subsequent injury fund an amount equal
to 364 weeks of the death benefits otherwise payable.
2288 79th Legislature — Regular Session 71st Day
(b)iiThe insurance carrier may elect or the commissioner [commission] may
order that death benefits payable to the fund be commuted on written approval of the
commissioner [executive director]. The commutation may be discounted for present
payment at the rate established in Section 401.023, compounded annually.
(c)iiIf a claim for death benefits is not filed with the department [commission] by
a legal beneficiary on or before the first anniversary of the date of the death of the
employee, it is presumed, for purposes of this section only, that no legal beneficiary
survived the deceased employee. The presumption does not apply against a minor
beneficiary or an incompetent beneficiary for whom a guardian has not been
appointed.
(d)iiIf the insurance carrier makes payment to the subsequent injury fund and it is
later determined by a final award of the department [commission] or the final
judgment of a court of competent jurisdiction that a legal beneficiary is entitled to the
death benefits, the commissioner [commission] shall order the fund to reimburse the
insurance carrier for the amount overpaid to the fund.
(e)iiIf the department [commission] determines that the funding under
Subsection (a) is not adequate to meet the expected obligations of the subsequent
injury fund established under Section 403.006, the fund shall be supplemented by the
collection of a maintenance tax paid by insurance carriers, other than a governmental
entity, as provided by Sections 403.002 and 403.003. The rate of assessment must be
adequate to provide 120 percent of the projected unfunded liabilities of the fund for
the next biennium as certified by an independent actuary or financial advisor.
(f)iiThe department's [commission's] actuary or financial advisor shall report
biannually to the workers' compensation research and evaluation group [Research and
Oversight Council on Workers' Compensation] on the financial condition and
projected assets and liabilities of the subsequent injury fund. The department
[commission] shall make the reports available to members of the legislature and the
public. The department [commission] may purchase annuities to provide for payments
due to claimants under this subtitle if the commissioner [commission] determines that
the purchase of annuities is financially prudent for the administration of the fund.
PART 4. ADOPTION OF CHAPTER 404, LABOR CODE
SECTIONi1.061.iiSubtitle A, Title 5, Labor Code, is amended by adding Chapter 404 to read as follows:
CHAPTER 404. OFFICE OF INJURED EMPLOYEE COUNSEL
SUBCHAPTER A. OFFICE; GENERAL PROVISIONS
Sec.i404.001.iiDEFINITIONS. In this chapter:
(1)ii"Office" means the office of injured employee counsel.
(2)ii"Public counsel" means the injured employee public counsel.
Sec.i404.002.iiESTABLISHMENT OF OFFICE; ADMINISTRATIVE ATTACHMENT TO DEPARTMENT. (a) The office of injured employee counsel is established to represent the interests of workers' compensation claimants in this state.
(b)iiThe office is administratively attached to the department but is independent of direction by the commissioner and the department.
(c)iiThe department shall provide the staff and facilities necessary to enable the office to perform the duties of the office under this subtitle, including:
Tuesday, May 17, 2005 SENATE JOURNAL 2289
(1)iiadministrative assistance and services to the office, including budget planning and purchasing;
(2)iipersonnel services; and
(3)iicomputer equipment and support.
(d)iiThe public counsel and the commissioner may enter into interagency contracts and other agreements as necessary to implement this chapter.
Sec.i404.003.iiSUNSET PROVISION. The office of injured employee counsel is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the office is abolished and this chapter expires September 1, 2019.
Sec.i404.004.iiPUBLIC INTEREST INFORMATION. (a) The office shall prepare information of public interest describing the functions of the office.
(b)iiThe office shall make the information available to the public and appropriate state agencies.
Sec.i404.005.iiACCESS TO PROGRAMS AND FACILITIES. (a) The office shall prepare and maintain a written plan that describes how a person who does not speak English can be provided reasonable access to the office's programs.
(b)iiThe office shall comply with federal and state laws for program and facility accessibility.
Sec.i404.006.iiRULEMAKING. (a) The public counsel shall adopt rules as necessary to implement this chapter.
(b)iiRulemaking under this section is subject to Chapter 2001, Government Code.
[Sections 404.007-404.050 reserved for expansion]
SUBCHAPTER B. INJURED EMPLOYEE PUBLIC COUNSEL
Sec.i404.051.iiAPPOINTMENT; TERM. (a) The governor, with the advice and consent of the senate, shall appoint the injured employee public counsel. The public counsel serves a two-year term that expires on February 1 of each odd-numbered year.
(b)iiThe governor shall appoint the public counsel without regard to the race, color, disability, sex, religion, age, or national origin of the appointee.
(c)iiIf a vacancy occurs during a term, the governor shall fill the vacancy for the unexpired term.
(d)iiIn appointing the public counsel, the governor shall consider recommendations made by groups that represent wage earners.
Sec.i404.052.iiQUALIFICATIONS. To be eligible to serve as public counsel, a person must:
(1)iibe licensed to practice law in this state;
(2)iihave demonstrated a strong commitment to and involvement in efforts to safeguard the rights of the working public;
(3)iihave management experience;
(4)iipossess knowledge and experience with the workers' compensation system; and
(5)iihave experience with legislative procedures and administrative law.
Sec.i404.053.iiBUSINESS INTEREST; SERVICE AS PUBLIC COUNSEL. (a) A person is not eligible for appointment as public counsel if the person or the person's spouse:
2290 79th Legislature — Regular Session 71st Day
(1)iiis employed by or participates in the management of a business entity or other organization that holds a license, certificate of authority, or other authorization from the department or that receives funds from the department;
(2)iiowns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization receiving funds from the department or the office; or
(3)iiuses or receives a substantial amount of tangible goods or funds from the department or the office, other than compensation or reimbursement authorized by law.
(b)iiA person is not eligible for appointment as public counsel if the person or the person's spouse has been an employee of an insurance company in the two years preceding the date of appointment.
Sec.i404.054.iiLOBBYING ACTIVITIES. A person may not serve as public counsel if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation related to the operation of the department or the office.
Sec.i404.055.iiGROUNDS FOR REMOVAL. (a) It is a ground for removal from office that the public counsel:
(1)iidoes not have at the time of appointment or maintain during service as public counsel the qualifications required by Section 404.052;
(2)iiviolates a prohibition established by Section 404.053, 404.054, 404.056, or 404.057; or
(3)iicannot, because of illness or disability, discharge the public counsel's duties for a substantial part of the public counsel's term.
(b)iiThe validity of an action of the office is not affected by the fact that the action is taken when a ground for removal of the public counsel exists.
Sec.i404.056.iiPROHIBITED REPRESENTATION OR EMPLOYMENT. (a) A former public counsel may not make any communication to or appearance before the department, the commissioner, or an employee of the department before the second anniversary of the date the person ceases to serve as public counsel if the communication or appearance is made:
(1)iion behalf of another person in connection with any matter on which the person seeks official action; or
(2)iiwith the intent to influence a commissioner decision or action, unless the person is acting on the person's own behalf and without remuneration.
(b)iiA former public counsel may not represent any person or receive compensation for services rendered on behalf of any person regarding a matter before the department before the second anniversary of the date the person ceases to serve as public counsel.
(c)iiA person commits an offense if the person violates this section. An offense under this subsection is a Class A misdemeanor.
(d)iiA former employee of the office may not:
(1)iibe employed by an insurance carrier regarding a matter that was in the scope of the employee's official responsibility while the employee was associated with the office; or
(2)iirepresent a person before the department or a court in a matter:
Tuesday, May 17, 2005 SENATE JOURNAL 2291
(A)iiin which the employee was personally involved while associated with the office; or
(B)iithat was within the employee's official responsibility while the employee was associated with the office.
(e)iiThe prohibition of Subsection (d)(1) applies until the first anniversary of the date the employee's employment with the office ceases.
(f)iiThe prohibition of Subsection (d)(2) applies to a current employee of the office while the employee is associated with the office and at any time after.
Sec.i404.057.iiTRADE ASSOCIATIONS. (a) In this section, "trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.
(b)iiA person may not serve as public counsel if the person is:
(1)iian officer, employee, or paid consultant of a trade association in the field of workers' compensation; or
(2)iithe spouse of an officer, manager, or paid consultant of a trade association in the field of workers' compensation.
[Sections 404.058-404.100 reserved for expansion]
SUBCHAPTER C. GENERAL POWERS AND DUTIES OF OFFICE
Sec.i404.101.iiGENERAL DUTIES. (a) The office shall:
(1)iiprovide representation and assistance to workers' compensation claimants as provided by this subtitle; and
(2)iiadvocate on behalf of injured employees as a class regarding rulemaking by the commissioner relating to workers' compensation.
(b)iiThe office shall accept or reject cases for representation and assistance in disputes subject to Chapter 410 or 413 based on standards set by department policy.
(c)iiTo the extent determined feasible by the public counsel, the office shall establish a single point of contact for injured employees receiving services from the office.
(d)iiThe office:
(1)iimay assess the impact of workers' compensation laws, rules, procedures, and forms on injured employees in this state; and
(2)iishall:
(A)iimonitor the performance and operation of the workers' compensation system, with a focus on the system's effect on the return to work of injured employees;
(B)iiassist injured employees with the resolution of complaints against system participants, including state regulatory agencies;
(C)iiprovide assistance to injured workers in the administrative dispute resolution system; and
(D)iiadvocate in the office's own name positions determined by the public counsel to be most advantageous to a substantial number of injured workers.
2292 79th Legislature — Regular Session 71st Day
Sec.i404.102.iiGENERAL POWERS AND DUTIES OF PUBLIC COUNSEL. The public counsel shall administer and enforce this chapter, including preparing and submitting to the legislature a budget for the office and approving expenditures for professional services, travel, per diem, and other actual and necessary expenses incurred in administering the office.
Sec.i404.103.iiOPERATION OF OMBUDSMAN PROGRAM. (a) The office shall operate the ombudsman program under Subchapter D.
(b)iiThe office shall coordinate services provided by the ombudsman program with services provided by the Department of Assistive and Rehabilitative Services.
Sec.i404.104.iiAUTHORITY TO APPEAR OR INTERVENE. The public counsel:
(1)iimay appear or intervene, as a party or otherwise, as a matter of right before the commissioner or department on behalf of injured employees as a class in matters involving rules and forms affecting workers' compensation insurance for which the commissioner adopts or approves rules or forms;
(2)iimay intervene on behalf of injured employees as a class as a matter of right or otherwise appear in a judicial proceeding involving or arising from an action taken by an administrative agency in a proceeding in which the public counsel previously appeared under the authority granted by this chapter;
(3)iimay appear or intervene, as a party or otherwise, as a matter of right on behalf of injured employees as a class in any proceeding in which the public counsel determines that injured employees are in need of representation, except that the public counsel may not intervene in an enforcement or parens patriae proceeding brought by the attorney general; and
(4)iimay appear or intervene before the commissioner or department, as a party or otherwise, on behalf of injured employees as a class in a matter involving rules or forms affecting injured employees as a class in any proceeding in which the public counsel determines that injured employees are in need of representation.
Sec.i404.105.iiAUTHORITY TO REPRESENT INJURED EMPLOYEES IN ADMINISTRATIVE PROCEDURES. (a) The office may appear before the commissioner or department on behalf of an individual injured employee during an administrative dispute resolution process.
(b)iiThe office may represent injured employees either through attorney representation or by an ombudsman whose assistance will be under the direction of an attorney.
(c)iiThe public counsel shall adopt rules and policies for representation and assistance of individual injured employees before the department. The rules must include a process for determining which cases need direct attorney involvement, taking into consideration the complexity of the case and the issue or issues in dispute.
(d)iiA determination of an injured employee's need for direct attorney representation does not constitute a fact determination on the validity of the claim.
(e)iiThe office is prohibited from representing an injured employee in:
(1)iian informal dispute resolution process before an insurance carrier or certified provider network;
(2)iia judicial review; or
Tuesday, May 17, 2005 SENATE JOURNAL 2293
(3)iia hearing before the department alleging an administrative violation or fraud.
Sec.i404.106.iiRESOLUTION OF COMPLAINTS. (a) The office shall receive and attempt to resolve complaints from injured employees against system participants, including state agencies. The office shall:
(1)iiwork with various state agencies to assist in resolving complaints, including coordination of communications among various state agencies;
(2)iiassist injured employees with contacting appropriate licensing boards for complaints against a health care provider; and
(3)iiassist injured employees with referral to local, state, and federal financial assistance, rehabilitation, and work placement programs, as well as other social services that the office considers appropriate.
(b)iiThe office, at least quarterly and until final disposition of the complaint, shall notify the injured employee of the status of the complaint unless the notice would jeopardize an investigation by law enforcement or the fraud units of an individual insurance company or a state or federal regulatory body.
Sec.i404.107.iiLEGISLATIVE REPORT. (a) The office shall report to the governor, lieutenant governor, speaker of the house of representatives, and the chairs of the legislative committees with appropriate jurisdiction not later than December 31 of each even-numbered year. The report must include:
(1)iia description of the activities of the office;
(2)iiidentification of any problems in the workers' compensation system from the perspective of injured employees as considered by the public counsel, with recommendations for regulatory and legislative action; and
(3)iian analysis of the ability of the workers' compensation system to provide adequate, equitable, and timely benefits to injured employees at a reasonable cost to employers.
(b)iiThe office shall coordinate with the workers' compensation research and evaluation group to obtain needed information and data to make the evaluations required for the report.
(c)iiThe office shall publish and disseminate the legislative report to interested persons, and may charge a fee for the publication as necessary to achieve optimal dissemination.
Sec.i404.108.iiACCESS TO INFORMATION BY PUBLIC COUNSEL. The public counsel:
(1)iiis entitled to the same access as a party, other than department staff, to department records available in a proceeding before the commissioner or department under the authority granted to the public counsel by this chapter; and
(2)iiis entitled to obtain discovery under Chapter 2001, Government Code, of any non-privileged matter that is relevant to the subject matter involved in a proceeding or submission before the commissioner or department as authorized by this chapter.
Sec.i404.109.iiLEGISLATIVE RECOMMENDATIONS. The public counsel may recommend proposed legislation to the legislature that the public counsel determines would positively affect the interests of injured employees.
2294 79th Legislature — Regular Session 71st Day
Sec.i404.110.iiINJURED EMPLOYEE RIGHTS; NOTICE. The public counsel shall submit to the department for adoption by the commissioner a notice of injured employee rights and responsibilities to be distributed as provided by commissioner rules on first report of injury.
Sec.i404.111.iiPROHIBITED INTERVENTIONS OR APPEARANCES. The public counsel may not intervene or appear in:
(1)iiany proceeding or hearing before the commissioner or department, or any other proceeding, that relates to approval or consideration of an individual charter, license, certificate of authority, acquisition, merger, or examination; or
(2)iiany proceeding concerning the solvency of an individual insurer, a financial issue, a policy form, advertising, or another regulatory issue affecting an individual insurer or agent.
Sec.i404.112.iiAPPLICABILITY OF CONFIDENTIALITY REQUIREMENTS. Confidentiality requirements applicable to examination reports under Article 1.18, Insurance Code, and to the commissioner under Section 3A, Article 21.28-A, Insurance Code, apply to the public counsel.
Sec.i404.113.iiACCESS TO INFORMATION. (a) The office is entitled to information that is otherwise confidential under a law of this state, including information made confidential under:
(1)iiSection 843.006, Insurance Code;
(2)iiChapter 108, Health and Safety Code; and
(3)iiChapter 552, Government Code.
(b)iiOn request by the public counsel, the department and the Department of Assistive and Rehabilitative Services, Texas Workforce Commission, Health and Human Services Commission, and any other state agency with relevant information shall provide any information or data requested by the office in furtherance of the duties of the office under this chapter.
(c)iiThe office shall use information collected or received under this chapter for the benefit of the public.
Sec.i404.114.iiCONFIDENTIALITY AND USE OF INFORMATION. (a) Except as provided by this section, information collected under this subchapter is subject to Chapter 552, Government Code. The office shall make determinations on requests for information in favor of access.
(b)iiThe office may not make public any confidential information provided to the office under this chapter but may disclose a summary of the information that does not directly or indirectly identify the individual or entity that is the subject of the information. The office may not release, and an individual or entity may not gain access to, any information that:
(1)iicould reasonably be expected to reveal the identity of a doctor, a health care provider, or an injured employee;
(2)iireveals the zip code of the address at which an injured employee lives;
(3)iidiscloses a provider discount or a differential between a payment and a billed charge; or
(4)iirelates to an actual payment made by a payer to an identified provider.
(c)iiInformation collected or used by the office under this chapter is subject to the confidentiality provisions and criminal penalties of:
Tuesday, May 17, 2005 SENATE JOURNAL 2295
(1)iiSection 81.103, Health and Safety Code;
(2)iiSection 311.037, Health and Safety Code; and
(3)iiChapter 159, Occupations Code.
(d)iiInformation on doctors, health care providers, and injured employees that is in the possession of the office, and any compilation, report, or analysis produced from the information that identifies doctors, health care providers, and injured employees is not:
(1)iisubject to discovery, subpoena, or other means of legal compulsion for release to any individual or entity; or
(2)iiadmissible in any civil, administrative, or criminal proceeding.
(e)iiNotwithstanding Subsection (b)(2), the office may use zip code information to analyze information on a geographical basis.
Sec.i404.115.iiLITERACY AND BASIC SKILLS CURRICULUM. (a) The office shall coordinate with the Texas Workforce Commission and local workforce development boards to develop a workplace literacy and basic skills curriculum designed to eliminate the skills gap between employees and current and emerging jobs.
(b)iiThe public counsel may enter into memoranda of understanding or other agreements with the Texas Workforce Commission and local workforce development boards as necessary to implement Subsection (a).
SECTIONi1.062.iiSubchapter C, Chapter 409, Labor Code, is redesignated as Subchapter D, Chapter 404, Labor Code, and Sections 409.041-409.044, Labor Code, are renumbered as Sections 404.151-404.154, Labor Code, and amended to read as follows:
SUBCHAPTER D [C]. OMBUDSMAN PROGRAM
Sec.i404.151i[409.041].iiOMBUDSMAN PROGRAM. (a) The office
[commission] shall maintain an ombudsman program as provided by this subchapter
to assist injured employees [workers] and persons claiming death benefits in obtaining
benefits under this subtitle.
(b)iiAn ombudsman shall:
(1)iimeet with or otherwise provide information to injured employees
[workers];
(2)iiinvestigate complaints;
(3)iicommunicate with employers, insurance carriers, and health care
providers on behalf of injured employees [workers];
(4)iiassist unrepresented claimants, employers, and other parties to enable those persons to protect their rights in the workers' compensation system; and
(5)iimeet with an unrepresented claimant privately for a minimum of 15
minutes prior to any prehearing conference [informal] or formal hearing.
Sec.i404.152i[409.042].iiDESIGNATION AS OMBUDSMAN; ELIGIBILITY
AND TRAINING REQUIREMENTS; CONTINUING EDUCATION
REQUIREMENTS. (a) At least one specially qualified employee in each department
workers' compensation [commission] office shall be an ombudsman designated by the
office [an ombudsman] who shall perform the duties under this subchapter [section] as
the person's primary responsibility.
(b)iiTo be eligible for designation as an ombudsman, a person must:
2296 79th Legislature — Regular Session 71st Day
(1)iidemonstrate satisfactory knowledge of the requirements of:
(A)iithis subtitle and the provisions of Subtitle C that relate to claims management;
(B)iiother laws relating to workers' compensation; and
(C)iirules adopted under this subtitle and the laws described under Subdivision (1)(B);
(2)iihave demonstrated experience in handling and resolving problems for the general public;
(3)iipossess strong interpersonal skills; and
(4)iihave at least one year of demonstrated experience in the field of workers' compensation.
(c)iiThe public counsel shall [commission] by rule [shall] adopt training
guidelines and continuing education requirements for ombudsmen. Training provided
under this subsection must:
(1)iiinclude education regarding this subtitle and[,] rules adopted under this
subtitle, [and appeals panel decisions,] with emphasis on benefits and the dispute
resolution process; and
(2)iirequire an ombudsman undergoing training to be observed and monitored by an experienced ombudsman during daily activities conducted under this subchapter.
Sec.i404.153i[409.043].iiEMPLOYER NOTIFICATION; ADMINISTRATIVE
VIOLATION. (a) Each employer shall notify its employees of the ombudsman
program in the [a] manner prescribed by the office [commission].
(b)iiAn employer commits a violation if the employer fails to comply with this section. A violation under this section is a Class C administrative violation.
Sec.i404.154i[409.044].iiPUBLIC INFORMATION. The office [commission]
shall widely disseminate information about the ombudsman program.
SECTIONi1.063.iiThe ombudsman program operated by the office of injured employee counsel under Subchapter D, Chapter 404, Labor Code, as added by this Act, shall begin providing services under that subchapter not later than March 1, 2006.
PART 5. AMENDMENTS TO CHAPTER 405, LABOR CODE
SECTIONi1.071.iiSection 405.001, Labor Code, is amended to read as follows:
Sec.i405.001.iiDEFINITION. In this chapter, "group" ["department"] means the
workers' compensation research and evaluation group [Texas Department of
Insurance].
SECTIONi1.072.iiSection 405.002, Labor Code, is amended to read as follows:
Sec.i405.002.iiWORKERS' COMPENSATION RESEARCH DUTIES OF
DEPARTMENT; RESEARCH AND EVALUATION GROUP. (a) The workers'
compensation research and evaluation group is located within the department and
serves as a resource for the commissioner on workers' compensation issues [shall
conduct professional studies and research related to:
[(1)iithe delivery of benefits;
[(2)iilitigation and controversy related to workers' compensation;
[(3)iiinsurance rates and rate-making procedures;
[(4)iirehabilitation and reemployment of injured workers;
Tuesday, May 17, 2005 SENATE JOURNAL 2297
[(5)iiworkplace health and safety issues;
[(6)iithe quality and cost of medical benefits; and
[(7)iiother matters relevant to the cost, quality, and operational effectiveness
of the workers' compensation system].
(b)iiThe department may apply for and spend grant funds to implement this chapter.
(c)iiThe department shall ensure that all research reports prepared under this chapter or by the former Research and Oversight Council on Workers' Compensation are accessible to the public through the Internet to the extent practicable.
SECTIONi1.073.iiChapter 405, Labor Code, is amended by adding Sections 405.0025, 405.0026, and 405.0027 to read as follows:
Sec.i405.0025.iiRESEARCH DUTIES OF GROUP. (a) The group shall conduct professional studies and research related to:
(1)iithe delivery of benefits;
(2)iilitigation and controversy related to workers' compensation;
(3)iiinsurance rates and ratemaking procedures;
(4)iirehabilitation and reemployment of injured employees;
(5)iithe quality and cost of medical benefits;
(6)iiemployer participation in the workers' compensation system;
(7)iiemployment health and safety issues; and
(8)iiother matters relevant to the cost, quality, and operational effectiveness of the workers' compensation system.
(b)iiThe group shall:
(1)iiobjectively evaluate the impact of the workers' compensation health care networks certified under this subtitle on the cost and the quality of medical care provided to injured employees; and
(2)iireport the group's findings to the governor, the lieutenant governor, the speaker of the house of representatives, and the members of the legislature not later than December 1 of each even-numbered year.
(c)iiAt a minimum, the report required under Subsection (b) must evaluate the impact of workers' compensation health care networks on:
(1)iithe average medical and indemnity cost per claim;
(2)iiaccess and utilization of health care;
(3)iiinjured employee return-to-work outcomes;
(4)iiinjured employee, health care provider, and insurance carrier satisfaction;
(5)iiinjured employee health-related functional outcomes;
(6)iithe frequency, duration, and outcome of complaints; and
(7)iithe frequency, duration, and outcome of disputes regarding medical benefits.
Sec.i405.0026.iiRESEARCH AGENDA. (a) The group shall prepare and publish annually in the Texas Register a proposed workers' compensation research agenda for commissioner review and approval.
(b)iiThe commissioner shall:
(1)iiaccept public comments on the research agenda; and
2298 79th Legislature — Regular Session 71st Day
(2)iihold a public hearing on the proposed research agenda if a hearing is requested by interested persons.
Sec.i405.0027.iiREPORT CARD. (a) The group shall develop and issue an annual informational report card that identifies and compares, on an objective basis, the quality, costs, provider availability, and other analogous factors of provider networks operating under the workers' compensation system of this state.
(b)iiThe group may procure services as necessary to produce the report card. The report card must include a risk-adjusted evaluation of:
(1)iiemployee access to care;
(2)iireturn-to-work outcomes;
(3)iihealth-related outcomes;
(4)iiemployee satisfaction with care; and
(5)iihealth care costs and utilization of health care.
(c)iiThe report cards may be based on information or data from any person, agency, organization, or governmental entity that the group considers reliable. The group may not endorse or recommend a specific provider network or plan, or subjectively rate or rank provider networks or plans, other than through comparison and evaluation of objective criteria.
(d)iiThe commissioner shall ensure that consumer report cards issued by the group under this section are accessible to the public on the department's Internet website and available to any person on request. The commissioner by rule may set a reasonable fee for obtaining a paper copy of report cards.
SECTIONi1.074.iiSections 405.003(a) and (e), Labor Code, are amended to read as follows:
(a)iiThe group's [department's] duties under this chapter are funded through the
assessment of a maintenance tax collected annually from all insurance carriers, and
self-insurance groups that hold certificates of approval under Chapter 407A, except
governmental entities.
(e)iiAmounts received under this section shall be deposited in the general
revenue fund [state treasury] in accordance with Section 251.004 [Article 5.68(e)],
Insurance Code, to be used:
(1)iifor the operation of the group's [department's] duties under this chapter;
and
(2)iito reimburse the general revenue fund in accordance with Section
201.052 [Article 4.19], Insurance Code.
SECTIONi1.075.iiSection 405.004, Labor Code, is amended by amending Subsections (a), (b), and (d) and adding Subsections (e) and (f) to read as follows:
(a)iiAs required to fulfill the group's [department's] objectives under this chapter,
the group [department] is entitled to access to the files and records of:
(1)ii[the commission;
[(2)]iithe Texas Workforce Commission;
(2)i[(3)]iithe [Texas] Department of Assistive and Rehabilitative [Human]
Services;
(3)iithe office of injured employee counsel;
(4)iithe State Office of Risk Management; and
(5)iiother appropriate state agencies.
Tuesday, May 17, 2005 SENATE JOURNAL 2299
(b)iiA state agency shall assist and cooperate in providing information to the
group [department].
(d)iiExcept as provided by this subsection, the [The] identity of an individual or
entity selected to participate in a [department] survey conducted by the group or who
participates in such a survey is confidential and is not subject to public disclosure
under Chapter 552, Government Code. This subsection does not prohibit the
identification of a provider network in a report card issued under Section 405.0027,
provided that the report card may not identify any injured employee or other
individual.
(e)iiA working paper, including all documentary or other information, prepared or maintained by the group in performing the group's duties under this chapter or other law to conduct an evaluation and prepare a report is excepted from the public disclosure requirements of Section 552.021, Government Code.
(f)iiA record held by another entity that is considered to be confidential by law and that the group receives in connection with the performance of the group's functions under this chapter or another law remains confidential and is excepted from the public disclosure requirements of Section 552.021, Government Code.
PART 6. AMENDMENTS TO CHAPTER 406, LABOR CODE
SECTIONi1.081.iiSection 406.005(c), Labor Code, is amended to read as follows:
(c)iiEach employer shall post a notice of whether the employer has workers'
compensation insurance coverage at conspicuous locations at the employer's place of
business as necessary to provide reasonable notice to the employees. The
commissioner [commission] may adopt rules relating to the form and content of the
notice. The employer shall revise the notice when the information contained in the
notice is changed. An employer who has workers' compensation insurance coverage
and who employs part-time employees must include in the notice required under this
subsection a statement that the coverage applies to the part-time employees.
SECTIONi1.082.iiSections 406.006(a)-(c), Labor Code, are amended to read as follows:
(a)iiAn insurance company from which an employer has obtained workers'
compensation insurance coverage, a certified self-insurer, and a political subdivision
shall file notice of the coverage and claim administration contact information with the
department [commission] not later than the 10th day after the date on which the
coverage or claim administration agreement takes effect, unless the commissioner
[commission] adopts a rule establishing a later date for filing. Coverage takes effect
on the date on which a binder is issued, a later date and time agreed to by the parties,
on the date provided by the certificate of self-insurance, or on the date provided in an
interlocal agreement that provides for self-insurance. The commissioner [commission]
may adopt rules that establish the coverage and claim administration contact
information required under this subsection.
(b)iiThe notice required under this section shall be filed with the department
[commission] in accordance with Section 406.009.
2300 79th Legislature — Regular Session 71st Day
(c)iiAn insurance company, certified self-insurer, or political subdivision
commits a violation if the person fails to file notice with the department [commission]
as provided by this section. A violation under this subsection is a Class C
administrative violation. Each day of noncompliance constitutes a separate violation.
SECTIONi1.083.iiSections 406.007(a)-(c), Labor Code, are amended to read as follows:
(a)iiAn employer who terminates workers' compensation insurance coverage
obtained under this subtitle shall file a written notice with the department
[commission] by certified mail not later than the 10th day after the date on which the
employer notified the insurance carrier to terminate the coverage. The notice must
include a statement certifying the date that notice was provided or will be provided to
affected employees under Section 406.005.
(b)iiThe notice required under this section shall be filed with the department
[commission] in accordance with Section 406.009.
(c)iiTermination of coverage takes effect on the later of:
(1)iithe 30th day after the date of filing of notice with the department
[commission] under Subsection (a); or
(2)iithe cancellation date of the policy.
SECTIONi1.084.iiSection 406.008, Labor Code, is amended to read as follows:
Sec.i406.008.iiCANCELLATION OR NONRENEWAL OF COVERAGE BY
INSURANCE COMPANY; NOTICE. (a) An insurance company that cancels a
policy of workers' compensation insurance or that does not renew the policy by the
anniversary date of the policy shall deliver notice of the cancellation or nonrenewal by
certified mail or in person to the employer and the department [commission] not later
than:
(1)iithe 30th day before the date on which the cancellation or nonrenewal takes effect; or
(2)iithe 10th day before the date on which the cancellation or nonrenewal takes effect if the insurance company cancels or does not renew because of:
(A)iifraud in obtaining coverage;
(B)iimisrepresentation of the amount of payroll for purposes of premium calculation;
(C)iifailure to pay a premium when due;
(D)iian increase in the hazard for which the employer seeks coverage that results from an act or omission of the employer and that would produce an increase in the rate, including an increase because of a failure to comply with:
(i)iireasonable recommendations for loss control; or
(ii)iirecommendations designed to reduce a hazard under the employer's control within a reasonable period; or
(E)iia determination made by the commissioner [of insurance] that the
continuation of the policy would place the insurer in violation of the law or would be
hazardous to the interest of subscribers, creditors, or the general public.
(b)iiThe notice required under this section shall be filed with the department
[commission].
Tuesday, May 17, 2005 SENATE JOURNAL 2301
(c)iiFailure of the insurance company to give notice as required by this section
extends the policy until the date on which the required notice is provided to the
employer and the department [commission].
SECTIONi1.085.iiSections 406.009(a)-(d), Labor Code, are amended to read as follows:
(a)iiThe department [commission] shall collect and maintain the information
required under this subchapter and shall monitor compliance with the requirements of
this subchapter.
(b)iiThe commissioner [commission] may adopt rules as necessary to enforce
this subchapter.
(c)iiThe commissioner [commission] may:
(1)iidesignate a data collection agent, implement an electronic reporting and public information access program, and adopt rules as necessary to implement the data collection requirements of this subchapter; and
(2)ii[. The executive director may] establish the form, manner, and procedure
for the transmission of information to the department [commission as authorized by
Section 402.042(b)(11)].
(d)iiThe commissioner [commission] may require an employer or insurance
carrier subject to this subtitle to identify or confirm an employer's coverage status and
claim administration contact information as necessary to achieve the purposes of this
subtitle.
SECTIONi1.086.iiSection 406.010(c), Labor Code, is amended to read as follows:
(c)iiThe commissioner [commission] by rule shall further specify the
requirements of this section.
SECTIONi1.087.iiSection 406.011(a), Labor Code, is amended to read as follows:
(a)iiThe commissioner [commission] by rule may require an insurance carrier to
designate a representative in Austin to act as the insurance carrier's agent before the
department [commission] in Austin. Notice to the designated representative [agent]
constitutes notice under this subtitle or the Insurance Code to the insurance carrier.
SECTIONi1.088.iiSection 406.012, Labor Code, is amended to read as follows:
Sec.i406.012.iiENFORCEMENT OF SUBCHAPTER. The department
[commission] shall enforce the administrative penalties established under this
subchapter in accordance with Chapter 415.
SECTIONi1.089.iiSections 406.051(b) and (c), Labor Code, are amended to read as follows:
(b)iiThe contract for coverage must be written on a policy and endorsements
approved by the department [Texas Department of Insurance].
(c)iiThe employer may not transfer:
(1)iithe obligation to accept a report of injury under Section 409.001;
(2)iithe obligation to maintain records of injuries under Section 409.006;
(3)iithe obligation to report injuries to the insurance carrier under Section 409.005;
(4)iiliability for a violation of Section 415.006 or 415.008 or of Chapter 451; or
2302 79th Legislature — Regular Session 71st Day
(5)iithe obligation to comply with a commissioner [commission] order.
SECTIONi1.090.iiSection 406.053, Labor Code, is amended to read as follows:
Sec.i406.053.iiALL STATES COVERAGE. The department [Texas Department
of Insurance] shall coordinate with the appropriate agencies of other states to:
(1)iishare information regarding an employer who obtains all states coverage; and
(2)iiensure that the department has knowledge of an employer who obtains all states coverage in another state but fails to file notice with the department.
SECTIONi1.091.iiSection 406.073(b), Labor Code, is amended to read as follows:
(b)iiThe employer shall file the agreement with the department [executive
director] on request.
SECTIONi1.092.iiSections 406.074(a) and (b), Labor Code, are amended to read as follows:
(a)iiThe commissioner [executive director] may enter into an agreement with an
appropriate agency of another jurisdiction with respect to:
(1)iiconflicts of jurisdiction;
(2)iiassumption of jurisdiction in a case in which the contract of employment arises in one state and the injury is incurred in another;
(3)iiprocedures for proceeding against a foreign employer who fails to comply with this subtitle; and
(4)iiprocedures for the appropriate agency to use to proceed against an employer of this state who fails to comply with the workers' compensation laws of the other jurisdiction.
(b)iiAn executed agreement that has been adopted as a rule by the commissioner
[commission] binds all subject employers and employees.
SECTIONi1.093.iiSection 406.093(b), Labor Code, is amended to read as follows:
(b)iiThe commissioner [commission] by rule shall adopt procedures relating to
the method of payment of benefits to legally incompetent employees.
SECTIONi1.094.iiSection 406.095(b), Labor Code, is amended to read as follows:
(b)iiThe commissioner [commission] by rule shall establish the procedures and
requirements for an election under this section.
SECTIONi1.095.iiSection 406.098(c), Labor Code, is amended to read as follows:
(c)iiThe commissioner [Texas Department of Insurance] shall adopt rules
governing the method of calculating premiums for workers' compensation insurance
coverage for volunteer members who are covered pursuant to this section.
SECTIONi1.096.iiSection 406.123(f), Labor Code, is amended to read as follows:
(f)iiA general contractor shall file a copy of an agreement entered into under this
section with the general contractor's workers' compensation insurance carrier not later
than the 10th day after the date on which the contract is executed. If the general
contractor is a certified self-insurer, the copy must be filed with the department
[division of self-insurance regulation].
Tuesday, May 17, 2005 SENATE JOURNAL 2303
SECTIONi1.097.iiSections 406.144(c) and (d), Labor Code, are amended to read as follows:
(c)iiAn agreement under this section shall be filed with the department
[commission] either by personal delivery or by registered or certified mail and is
considered filed on receipt by the department [commission].
(d)iiThe hiring contractor shall send a copy of an agreement under this section to
the hiring contractor's workers' compensation insurance carrier on filing of the
agreement with the department [commission].
SECTIONi1.098.iiSections 406.145(a)-(d) and (f), Labor Code, are amended to read as follows:
(a)iiA hiring contractor and an independent subcontractor may make a joint
agreement declaring that the subcontractor is an independent contractor as defined in
Section 406.141(2) and that the subcontractor is not the employee of the hiring
contractor. If the joint agreement is signed by both the hiring contractor and the
subcontractor and filed with the department [commission], the subcontractor, as a
matter of law, is an independent contractor and not an employee, and is not entitled to
workers' compensation insurance coverage through the hiring contractor unless an
agreement is entered into under Section 406.144 to provide workers' compensation
insurance coverage. The commissioner [commission] shall prescribe forms for the
joint agreement.
(b)iiA joint agreement shall be delivered to the department [commission] by
personal delivery or registered or certified mail and is considered filed on receipt by
the department [commission].
(c)iiThe hiring contractor shall send a copy of a joint agreement signed under this
section to the hiring contractor's workers' compensation insurance carrier on filing of
the joint agreement with the department [commission].
(d)iiThe department [commission] shall maintain a system for accepting and
maintaining the joint agreements.
(f)iiIf a subsequent hiring agreement is made to which the joint agreement does
not apply, the hiring contractor and independent contractor shall notify the department
[commission] and the hiring contractor's workers' compensation insurance carrier in
writing.
SECTIONi1.099.iiSection 406.004, Labor Code, is repealed.
PART 7. AMENDMENTS TO CHAPTER 407, LABOR CODE
SECTIONi1.101.iiSections 407.001(3) and (5), Labor Code, are amended to read as follows:
(3)ii"Impaired employer" means a certified self-insurer:
(A)iiwho has suspended payment of compensation as determined by the
department [commission];
(B)iiwho has filed for relief under bankruptcy laws;
(C)iiagainst whom bankruptcy proceedings have been filed; or
(D)iifor whom a receiver has been appointed by a court of this state.
(5)ii"Qualified claims servicing contractor" means a person who provides claims service for a certified self-insurer, who is a separate business entity from the affected certified self-insurer, and who is:
2304 79th Legislature — Regular Session 71st Day
(A)iian insurance company authorized by the department [Texas
Department of Insurance] to write workers' compensation insurance;
(B)iia subsidiary of an insurance company that provides claims service under contract; or
(C)iia third-party administrator that has on its staff an individual licensed
under Chapter 4101, Insurance Code [407, Acts of the 63rd Legislature, Regular
Session, 1973 (Article 21.07-4, Vernon's Texas Insurance Code)].
SECTIONi1.102.iiSubchapter A, Chapter 407, Labor Code, is amended by adding Section 407.002 to read as follows:
Sec.i407.002.iiCLAIM; SUIT. (a) A claim or suit brought by a claimant or a certified self-insurer shall be styled "in re: [name of employee] and [name of certified self-insurer]."
(b)iiThe commissioner is the agent for service of process for a claim or suit brought by a workers' compensation claimant against the qualified claims servicing contractor or a certified self-insurer.
SECTIONi1.103.iiSections 407.041(a)-(c), Labor Code, are amended to read as follows:
(a)iiAn employer who desires to self-insure under this chapter must submit an
application to the department [commission] for a certificate of authority to self-insure.
(b)iiThe application must be:
(1)iisubmitted on a form adopted by the commissioner [commission]; and
(2)iiaccompanied by a nonrefundable $1,000 application fee.
(c)iiNot later than the 60th day after the date on which the application is
received, the commissioner [director] shall approve or deny [recommend approval or
denial of] the application [to the commission].
SECTIONi1.104.iiSection 407.042, Labor Code, is amended to read as follows:
Sec.i407.042.iiISSUANCE OF CERTIFICATE OF AUTHORITY. With the
approval of the Texas Certified Self-Insurer Guaranty Association, [and by majority
vote,] the commissioner [commission] shall issue a certificate of authority to
self-insure to an applicant who meets the certification requirements under this chapter
and pays the required fee.
SECTIONi1.105.iiSection 407.043, Labor Code, is amended to read as follows:
Sec.i407.043.iiPROCEDURES ON DENIAL OF APPLICATION. (a) If the
commissioner [commission] determines that an applicant for a certificate of authority
to self-insure does not meet the certification requirements, the department
[commission] shall notify the applicant in writing of the [its] determination, stating the
specific reasons for the denial and the conditions to be met before approval may be
granted.
(b)iiThe applicant is entitled to a reasonable period, as determined by the
commissioner [commission], to meet the conditions for approval before the
application is considered rejected for purposes of appeal.
SECTIONi1.106.iiSection 407.044, Labor Code, is amended to read as follows:
Sec.i407.044.iiTERM OF CERTIFICATE OF AUTHORITY; RENEWAL. (a) A
certificate of authority to self-insure is valid for one year after the date of issuance and
may be renewed under procedures prescribed by the commissioner [commission].
Tuesday, May 17, 2005 SENATE JOURNAL 2305
(b)iiThe commissioner [director] may stagger the renewal dates of certificates of
authority to self-insure to facilitate the work load of the department [division].
SECTIONi1.107.iiSection 407.045, Labor Code, is amended to read as follows:
Sec.i407.045.iiWITHDRAWAL FROM SELF-INSURANCE. (a) A certified
self-insurer may withdraw from self-insurance at any time with the approval of the
commissioner [commission]. The commissioner [commission] shall approve the
withdrawal if the certified self-insurer shows to the satisfaction of the commissioner
[commission] that the certified self-insurer has established an adequate program to
pay all incurred losses, including unreported losses, that arise out of accidents or
occupational diseases first distinctly manifested during the period of operation as a
certified self-insurer.
(b)iiA certified self-insurer who withdraws from self-insurance shall surrender to
the department [commission] the certificate of authority to self-insure.
SECTIONi1.108.iiSections 407.046(a), (b), and (d), Labor Code, are amended to read as follows:
(a)iiThe commissioner [commission by majority vote] may revoke the certificate
of authority to self-insure of a certified self-insurer who fails to comply with
requirements or conditions established by this chapter or a rule adopted by the
commissioner [commission] under this chapter.
(b)iiIf the commissioner [commission] believes that a ground exists to revoke a
certificate of authority to self-insure, the commissioner [commission] shall refer the
matter to the State Office of Administrative Hearings. That office shall hold a hearing
to determine if the certificate should be revoked. The hearing shall be conducted in
the manner provided for a contested case hearing under Chapter 2001, Government
Code [(the administrative procedure law)].
(d)iiIf the certified self-insurer fails to show cause why the certificate should not
be revoked, the commissioner [commission] immediately shall revoke the certificate.
SECTIONi1.109.iiSection 407.047(b), Labor Code, is amended to read as follows:
(b)iiThe security required under Sections 407.064 and 407.065 shall be
maintained with the department [commission] or under the department's
[commission's] control until each claim for workers' compensation benefits is paid, is
settled, or lapses under this subtitle.
SECTIONi1.110.iiSections 407.061(a), (c), (e), and (f), Labor Code, are amended to read as follows:
(a)iiTo be eligible for a certificate of authority to self-insure, an applicant for an
initial or renewal certificate must present evidence satisfactory to the commissioner
[commission] and the association of sufficient financial strength and liquidity, under
standards adopted by the commissioner [commission], to ensure that all workers'
compensation obligations incurred by the applicant under this chapter are met
promptly.
(c)iiThe applicant must present a plan for claims administration that is acceptable
to the commissioner [commission] and that designates a qualified claims servicing
contractor.
2306 79th Legislature — Regular Session 71st Day
(e)iiThe applicant must provide to the department [commission] a copy of each
contract entered into with a person that provides claims services, underwriting
services, or accident prevention services if the provider of those services is not an
employee of the applicant. The contract must be acceptable to the department
[commission] and must be submitted in a standard form adopted by the commissioner
[commission], if the commissioner [commission] adopts such a form.
(f)iiThe commissioner [commission] shall adopt rules for the requirements for
the financial statements required by Subsection (b)(2).
SECTIONi1.111.iiSection 407.062, Labor Code, is amended to read as follows:
Sec.i407.062.iiFINANCIAL STRENGTH AND LIQUIDITY
REQUIREMENTS. In assessing the financial strength and liquidity of an applicant,
the department [commission] shall consider:
(1)iithe applicant's organizational structure and management background;
(2)iithe applicant's profit and loss history;
(3)iithe applicant's compensation loss history;
(4)iithe source and reliability of the financial information submitted by the applicant;
(5)iithe number of employees affected by self-insurance;
(6)iithe applicant's access to excess insurance markets;
(7)iifinancial ratios, indexes, or other financial measures that the
commissioner considers [commission finds] appropriate; and
(8)iiany other information considered appropriate by the commissioner
[commission].
SECTIONi1.112.iiSection 407.063(a), Labor Code, is amended to read as follows:
(a)iiIn addition to meeting the other certification requirements imposed under
this chapter, an applicant for an initial certificate of authority to self-insure must
present evidence satisfactory to the department [commission] of a total unmodified
workers' compensation insurance premium in this state in the calendar year of
application of at least $500,000.
SECTIONi1.113.iiSections 407.064(a), (b), and (e), Labor Code, are amended to read as follows:
(a)iiEach applicant shall provide security for incurred liabilities for compensation
through a deposit with the department [director], in a combination and from
institutions approved by the commissioner [director], of the following security:
(1)iicash or negotiable securities of the United States or of this state;
(2)iia surety bond that names the commissioner [director] as payee; or
(3)iian irrevocable letter of credit that names the commissioner [director] as
payee.
(b)iiIf an applicant who has provided a letter of credit as all or part of the security
required under this section desires to cancel the existing letter of credit and substitute
a different letter of credit or another form of security, the applicant shall notify the
department [commission] in writing not later than the 60th day before the effective
date of the cancellation of the original letter of credit.
Tuesday, May 17, 2005 SENATE JOURNAL 2307
(e)iiIf an applicant is granted a certificate of authority to self-insure, any interest
or other income that accrues from cash or negotiable securities deposited by the
applicant as security under this section while the cash or securities are on deposit with
the department [director] shall be paid to the applicant quarterly.
SECTIONi1.114.iiSections 407.065(b)-(f), Labor Code, are amended to read as follows:
(b)iiA surety bond, irrevocable letter of credit, or document indicating issuance
of an irrevocable letter of credit must be in a form approved by the commissioner
[director] and must be issued by an institution acceptable to the commissioner
[director]. The instrument may be released only according to its terms but may not be
released by the deposit of additional security.
(c)iiThe certified self-insurer shall deposit the security with the comptroller on
behalf of the department [director]. The comptroller may accept securities for deposit
or withdrawal only on the written order of the commissioner [director].
(d)iiOn receipt by the department [director] of a request to renew, submit, or
increase or decrease a security deposit, a perfected security interest is created in the
certified self-insurer's assets in favor of the commissioner [director] to the extent of
any then unsecured portion of the self-insurer's incurred liabilities for compensation.
That perfected security interest transfers to cash or securities deposited by the
self-insurer with the department [director] after the date of the request and may be
released only on:
(1)iithe acceptance by the commissioner [director] of a surety bond or
irrevocable letter of credit for the full amount of the incurred liabilities for
compensation; or
(2)iithe return of cash or securities by the department [director].
(e)iiThe certified self-insurer loses all right to, title to, interest in, and control of
the assets or obligations submitted or deposited as security. The commissioner
[director] may liquidate the deposit and apply it to the certified self-insurer's incurred
liabilities for compensation either directly or through the association.
(f)iiIf the commissioner [director] determines that a security deposit is not
immediately available for the payment of compensation, the commissioner [director]
shall determine the appropriate method of payment and claims administration, which
may include payment by the surety that issued the bond or by the issuer of an
irrevocable letter of credit, and administration by a surety, an adjusting agency, the
association, or through any combination of those entities approved by the
commissioner [director].
SECTIONi1.115.iiSections 407.066(a) and (b), Labor Code, are amended to read as follows:
(a)iiThe commissioner [director], after notice to the concerned parties and an
opportunity for a hearing, shall resolve a dispute concerning the deposit, renewal,
termination, release, or return of all or part of the security, liability arising out of the
submission or failure to submit security, or the adequacy of the security or
reasonableness of the administrative costs, including legal fees, that arises among:
(1)iia surety;
(2)iian issuer of an agreement of assumption and guarantee of workers' compensation liabilities;
2308 79th Legislature — Regular Session 71st Day
(3)iian issuer of a letter of credit;
(4)iia custodian of the security deposit;
(5)iia certified self-insurer; or
(6)iithe association.
(b)iiA party aggrieved by a decision of the commissioner [director] is entitled to
judicial review. Venue for an appeal is in Travis County.
SECTIONi1.116.iiSections 407.067(a)-(c), Labor Code, are amended to read as follows:
(a)iiEach applicant shall obtain excess insurance or reinsurance to cover liability
for losses not paid by the self-insurer in an amount not less than the amount required
by the commissioner [director].
(b)iiThe commissioner [director] shall require excess insurance or reinsurance in
at least the amount of $5 million per occurrence.
(c)iiA certified self-insurer shall notify the department [director] not later than
the 10th day after the date on which the certified self-insurer has notice of the
cancellation or termination of excess insurance or reinsurance coverage required
under this section.
SECTIONi1.117.iiSections 407.081(a)-(d), (f), and (g), Labor Code, are amended to read as follows:
(a)iiEach certified self-insurer shall file an annual report with the department
[commission]. The commissioner [commission] shall prescribe the form of the report
and shall furnish blank forms for the preparation of the report to each certified
self-insurer.
(b)iiThe report must:
(1)iiinclude payroll information, in the form prescribed by this chapter and
the commissioner [commission];
(2)iistate the number of injuries sustained in the three preceding calendar years; and
(3)iiindicate separately the amount paid during each year for income benefits, medical benefits, death benefits, burial benefits, and other proper expenses related to worker injuries.
(c)iiEach certified self-insurer shall file with the department [commission] as part
of the annual report annual independent financial statements that reflect the financial
condition of the self-insurer. The department [commission] shall make a financial
statement filed under this subsection available for public review.
(d)iiThe commissioner [commission] may require that the report include
additional financial and statistical information.
(f)iiThe report must include an estimate of future liability for compensation. The
estimate must be signed and sworn to by a certified casualty actuary every third year,
or more frequently if required by the commissioner [commission].
(g)iiIf the commissioner [commission] considers it necessary, the commissioner
[it] may order a certified self-insurer whose financial condition or claims record
warrants closer supervision to report as provided by this section more often than
annually.
SECTIONi1.118.iiSections 407.082(a), (c), and (d), Labor Code, are amended to read as follows:
Tuesday, May 17, 2005 SENATE JOURNAL 2309
(a)iiEach certified self-insurer shall maintain the books, records, and payroll
information necessary to compile the annual report required under Section 407.081
and any other information reasonably required by the commissioner [commission].
(c)iiThe material maintained by the certified self-insurer shall be open to
examination by an authorized agent or representative of the department [commission]
at reasonable times to ascertain the correctness of the information.
(d)iiThe examination may be conducted at any location, including the
department's [commission's] Austin offices, or, at the certified self-insurer's option, in
the offices of the certified self-insurer. The certified self-insurer shall pay the
reasonable expenses, including travel expenses, of an inspector who conducts an
inspection at its offices.
SECTIONi1.119.iiSection 407.101(b), Labor Code, is amended to read as follows:
(b)iiThe department [commission] shall deposit the application fee for a
certificate of authority to self-insure in the state treasury to the credit of the workers'
compensation self-insurance fund.
SECTIONi1.120.iiSection 407.102, Labor Code, is amended to read as follows:
Sec.i407.102.iiREGULATORY FEE. (a) Each certified self-insurer shall pay an
annual fee to cover the administrative costs incurred by the department [commission]
in implementing this chapter.
(b)iiThe department [commission] shall base the fee on the total amount of
income benefit payments made in the preceding calendar year. The department
[commission] shall assess each certified self-insurer a pro rata share based on the ratio
that the total amount of income benefit payments made by that certified self-insurer
bears to the total amount of income benefit payments made by all certified
self-insurers.
SECTIONi1.121.iiSections 407.103(a), (b), and (d), Labor Code, are amended to read as follows:
(a)iiEach certified self-insurer shall pay a self-insurer maintenance tax for the
administration of the department [commission] and to support the prosecution of
workers' compensation insurance fraud in this state. Not more than two percent of the
total tax base of all certified self-insurers, as computed under Subsection (b), may be
assessed for a maintenance tax under this section.
(b)iiTo determine the tax base of a certified self-insurer for purposes of this
chapter, the department [director] shall multiply the amount of the certified
self-insurer's liabilities for workers' compensation claims incurred in the previous
year, including claims incurred but not reported, plus the amount of expense incurred
by the certified self-insurer in the previous year for administration of self-insurance,
including legal costs, by 1.02.
(d)iiIn setting the rate of maintenance tax assessment for insurance companies,
the department [commission] may not consider revenue or expenditures related to the
operation of the self-insurer program under this chapter [division].
SECTIONi1.122.iiSections 407.104(b), (c), and (e), Labor Code, are amended to read as follows:
2310 79th Legislature — Regular Session 71st Day
(b)iiThe department [commission] shall compute the fee and taxes of a certified
self-insurer and notify the certified self-insurer of the amounts due. The taxes and fees
shall be remitted to the department [commission].
(c)iiThe regulatory fee imposed under Section 407.102 shall be deposited in the
state treasury to the credit of the workers' compensation self-insurance fund. The
self-insurer maintenance tax shall be deposited in the state treasury to the credit of the
Texas Department of Insurance operating account. Notwithstanding Section 202.101,
Insurance Code, or any other law, money deposited in the account under this section
may be appropriated only for the use and benefit of the department as provided by the
General Appropriations Act to pay salaries and other expenses arising from and in
connection with the department's duties under this title [commission].
(e)iiIf the certificate of authority to self-insure of a certified self-insurer is
terminated, the [insurance] commissioner [or the executive director of the
commission] shall proceed immediately to collect taxes due under this subtitle, using
legal process as necessary.
SECTIONi1.123.iiSection 407.122(b), Labor Code, is amended to read as follows:
(b)iiThe board of directors is composed of the following voting members:
(1)iifour [three] certified self-insurers;
(2)iithe commissioner [one commission member representing wage earners;
[(3)iione commission member representing employers]; and
(3)i[(4)]iithe public counsel of the office of public insurance counsel.
SECTIONi1.124.iiSection 407.123(b), Labor Code, is amended to read as follows:
(b)iiRules adopted by the board are subject to the approval of the commissioner
[commission].
SECTIONi1.125.iiSection 407.124, Labor Code, is amended to read as follows:
Sec.i407.124.iiIMPAIRED EMPLOYER; ASSESSMENTS. (a) On
determination by the department [commission] that a certified self-insurer has become
an impaired employer, the commissioner [director] shall secure release of the security
deposit required by this chapter and shall promptly estimate:
(1)iithe amount of additional funds needed to supplement the security deposit;
(2)iithe available assets of the impaired employer for the purpose of making payment of all incurred liabilities for compensation; and
(3)iithe funds maintained by the association for the emergency payment of compensation liabilities.
(b)iiThe commissioner [director] shall advise the board of directors of the
association of the estimate of necessary additional funds, and the board shall promptly
assess each certified self-insurer to collect the required funds. An assessment against a
certified self-insurer shall be made in proportion to the ratio that the total paid income
benefit payment for the preceding reported calendar year for that self-insurer bears to
the total paid income benefit payment by all certified self-insurers, except impaired
employers, in this state in that calendar year.
Tuesday, May 17, 2005 SENATE JOURNAL 2311
(c)iiA certified self-insurer designated as an impaired employer is exempt from
assessments beginning on the date of the designation until the department
[commission] determines that the employer is no longer impaired.
SECTIONi1.126.iiSection 407.125, Labor Code, is amended to read as follows:
Sec.i407.125.iiPAYMENT OF ASSESSMENTS. Each certified self-insurer shall
pay the amount of its assessment to the association not later than the 30th day after the
date on which the department [division] notifies the self-insurer of the assessment. A
delinquent assessment may be collected on behalf of the association through suit.
Venue is in Travis County.
SECTIONi1.127.iiSection 407.126(d), Labor Code, is amended to read as follows:
(d)iiThe board of directors shall administer the trust fund in accordance with
rules adopted by the commissioner [commission].
SECTIONi1.128.iiSection 407.127(a), Labor Code, is amended to read as follows:
(a)iiIf the commissioner [commission] determines that the payment of benefits
and claims administration shall be made through the association, the association
assumes the workers' compensation obligations of the impaired employer and shall
begin the payment of the obligations for which it is liable not later than the 30th day
after the date of notification by the department [director].
SECTIONi1.129.iiSection 407.128, Labor Code, is amended to read as follows:
Sec.i407.128.iiPOSSESSION OF SECURITY BY ASSOCIATION. On the
assumption of obligations by the association under the commissioner's [director's]
determination, the association is entitled to immediate possession of any deposited
security, and the custodian, surety, or issuer of an irrevocable letter of credit shall
deliver the security to the association with any accrued interest.
SECTIONi1.130.iiSection 407.132, Labor Code, is amended to read as follows:
Sec.i407.132.iiSPECIAL FUND. Funds advanced by the association under this
subchapter do not become assets of the impaired employer but are a special fund
advanced to the commissioner [director], trustee in bankruptcy, receiver, or other
lawful conservator only for the payment of compensation liabilities, including the
costs of claims administration and legal costs.
SECTIONi1.131.iiSection 407.133(a), Labor Code, is amended to read as follows:
(a)iiThe commissioner [commission], after notice and hearing [and by majority
vote], may suspend or revoke the certificate of authority to self-insure of a certified
self-insurer who fails to pay an assessment. The association promptly shall report such
a failure to the department [director].
SECTIONi1.132.iiThe following laws are repealed:
(1)iiSection 407.001(2), Labor Code;
(2)iiSection 407.122(c), Labor Code; and
(3)iiSubchapter B, Chapter 407, Labor Code.
PART 8. AMENDMENTS TO CHAPTER 407A, LABOR CODE
SECTIONi1.141.iiSection 407A.053(d), Labor Code, is amended to read as follows:
2312 79th Legislature — Regular Session 71st Day
(d)iiAny securities posted must be deposited in the state treasury and must be
assigned to and made negotiable by the commissioner [executive director of the
commission] under a trust document acceptable to the commissioner. Interest accruing
on a negotiable security deposited under this subsection shall be collected and
transmitted to the depositor if the depositor is not in default.
SECTIONi1.142.iiSection 407A.201(c), Labor Code, is amended to read as follows:
(c)iiThe membership of an individual member of a group is subject to
cancellation by the group as provided by the bylaws of the group. An individual
member may also elect to terminate participation in the group. The group shall notify
the commissioner [and the commission] of the cancellation or termination of a
membership not later than the 10th day after the date on which the cancellation or
termination takes effect and shall maintain coverage of each canceled or terminated
member until the 30th day after the date of the notice, at the terminating member's
expense, unless before that date the commissioner [commission] notifies the group
that the canceled or terminated member has:
(1)iiobtained workers' compensation insurance coverage;
(2)iibecome a certified self-insurer; or
(3)iibecome a member of another group.
SECTIONi1.143.iiThe heading to Section 407A.301, Labor Code, is amended to read as follows:
Sec.i407A.301.ii MAINTENANCE TAX FOR DEPARTMENT
[COMMISSION] AND WORKERS' COMPENSATION RESEARCH AND
EVALUATION GROUP [OVERSIGHT COUNCIL].
SECTIONi1.144.iiSections 407A.301(a) and (c), Labor Code, are amended to read as follows:
(a)iiEach group shall pay a self-insurance group maintenance tax under this section for:
(1)iithe administration of the department [commission];
(2)iithe prosecution of workers' compensation insurance fraud in this state; and
(3)iithe workers' compensation research and evaluation group [Research and
Oversight Council on Workers' Compensation].
(c)iiThe tax liability of a group under Subsection (a)(3) is based on gross
premium for the group's retention multiplied by the rate assessed insurance carriers
under Section 405.003 [404.003].
SECTIONi1.145.iiSection 407A.303(c), Labor Code, is amended to read as follows:
(c)iiIf the certificate of approval of a group is terminated, the commissioner [or
the executive director of the commission] shall immediately notify the comptroller to
collect taxes as directed under Sections 407A.301 and 407A.302.
SECTIONi1.146.iiSection 407A.357(b), Labor Code, is amended to read as follows:
(b)iiThe guaranty association advisory committee is composed of the following voting members:
Tuesday, May 17, 2005 SENATE JOURNAL 2313
(1)iithree members who represent different groups under this chapter, subject to Subsection (c);
(2)iione [commission] member, designated by the commissioner, who
represents wage earners;
(3)iione member, designated by the commissioner, who represents employers; and
(4)iithe public counsel of the office of public insurance counsel.
PART 9. AMENDMENTS TO CHAPTER 408, LABOR CODE
SECTIONi1.151.iiThe heading to Chapter 408, Labor Code, is amended to read as follows:
CHAPTER 408. WORKERS' COMPENSATION BENEFITS:
GENERAL PROVISIONS
SECTIONi1.152.iiSection 408.001, Labor Code, is amended by adding Subsection (d) to read as follows:
(d)iiA determination under Section 406.032, 409.002, or 409.004 that a work-related injury is noncompensable does not adversely affect the exclusive remedy provisions under Subsection (a).
SECTIONi1.153.iiSections 408.003(b) and (c), Labor Code, are amended to read as follows:
(b)iiIf an injury is found to be compensable and an insurance carrier initiates
compensation, the insurance carrier shall reimburse the employer for the amount of
benefits paid by the employer to which the employee was entitled under this subtitle.
Payments that are not reimbursed or reimbursable under this section may be
reimbursed under Section 408D.107 [408.127].
(c)iiThe employer shall notify the department [commission] and the insurance
carrier on forms prescribed by the commissioner [commission] of the initiation of and
amount of payments made under this section.
SECTIONi1.154.iiSections 408.005(a)-(g), Labor Code, are amended to read as follows:
(a)iiA settlement may not provide for payment of benefits in a lump sum except
as provided by Section 408D.108 [408.128].
(b)iiAn employee's right to medical benefits as provided by Section 408A.001
[408.021] may not be limited or terminated.
(c)iiA settlement or agreement resolving an issue of impairment:
(1)iimay not be made before the employee reaches maximum medical improvement; and
(2)iimust adopt an impairment rating using the impairment rating guidelines
described by Section 408D.104 [408.124].
(d)iiA settlement must be signed by the commissioner [director of the division of
hearings] and all parties to the dispute.
(e)iiThe commissioner [director of the division of hearings] shall approve a
settlement if the commissioner [director] is satisfied that:
(1)iithe settlement accurately reflects the agreement between the parties;
(2)iithe settlement reflects adherence to all appropriate provisions of law and
the policies of the department [commission]; and
2314 79th Legislature — Regular Session 71st Day
(3)iiunder the law and facts, the settlement is in the best interest of the claimant.
(f)iiA settlement that is not approved or rejected before the 16th day after the
date the settlement is submitted to the commissioner [director of the division of
hearings] is considered to be approved by the commissioner [director] on that date.
(g)iiA settlement takes effect on the date it is approved by the commissioner
[director of the division of hearings].
SECTIONi1.155.iiSection 413.021, Labor Code, is transferred to Subchapter A, Chapter 408, Labor Code, renumbered as Section 408.009, Labor Code, and amended to read as follows:
Sec.i408.009 [413.021].iiRETURN-TO-WORK COORDINATION SERVICES.
(a) An insurance carrier shall, with the agreement of a participating employer, provide
each [the] employer with return-to-work coordination services as necessary to
facilitate an injured employee's return to employment.
(b)iiThe insurance carrier shall notify the employer of the availability of
return-to-work coordination services. In offering the services, insurance carriers and
the department [commission] shall target employers without return-to-work programs
and shall focus return-to-work efforts on workers who begin to receive temporary
income benefits. The carrier shall evaluate a compensable injury in which the injured
employee sustains an injury that could potentially result in lost time from employment
as early as practicable to determine if skilled case management is necessary for the
injured employee's case. Where necessary, case managers who are appropriately
licensed to practice in the State of Texas shall be used. Claims adjusters shall not be
used as case managers.
(c)iiThese services may be offered by insurance carriers in conjunction with the accident prevention services provided under Section 411.061. Nothing in this section:
(1)iisupersedes the provisions of a collective bargaining agreement between an employer and the employer's employees; or
(2)ii[, and nothing in this section] authorizes or requires an employer to
engage in conduct that would otherwise be a violation of the employer's obligations
under the National Labor Relations Act (29 U.S.C. Section 151 et seq.)[, and its
subsequent amendments].
(d)i[(b)]iiReturn-to-work coordination services under this section may include:
(1)iijob analysis to identify the physical demands of a job;
(2)iijob modification and restructuring assessments as necessary to match job requirements with the functional capacity of an employee; and
(3)iimedical or vocational case management to coordinate the efforts of the employer, the treating doctor, and the injured employee to achieve timely return to work.
(e)i[(c)]iiAn insurance carrier is not required to provide physical workplace
modifications under this section and is not liable for the cost of modifications made
under this section to facilitate an employee's return to employment.
(f)i[(d)]iiThe department [commission] shall use certified rehabilitation
counselors or other appropriately trained or credentialed specialists to provide training
to department [commission] staff regarding the coordination of return-to-work
services under this section.
Tuesday, May 17, 2005 SENATE JOURNAL 2315
(g)i[(e)]iiThe commissioner [commission] shall adopt rules necessary to collect
data on return-to-work outcomes to allow full evaluations of successes and of barriers
to achieving timely return to work after an injury.
SECTIONi1.156.iiSection 408.041(c), Labor Code, is amended to read as follows:
(c)iiIf Subsection (a) or (b) cannot reasonably be applied because the employee's
employment has been irregular or because the employee has lost time from work
during the 13-week period immediately preceding the injury because of illness,
weather, or another cause beyond the control of the employee, the department
[commission] may determine the employee's average weekly wage by any method
that the commissioner [commission] considers fair, just, and reasonable to all parties
and consistent with the methods established under this section.
SECTIONi1.157.iiSections 408.042(d), (f), and (g), Labor Code, are amended to read as follows:
(d)iiThe commissioner [commission] shall:
(1)iiprescribe a form to collect information regarding the wages of employees with multiple employment; and
(2)iiby rule, determine the manner by which the department [commission]
collects and distributes wage information to implement this section.
(f)iiIf the department [commission] determines that computing the average
weekly wage for an employee as provided by Subsection (c) is impractical or
unreasonable, the department [commission] shall set the average weekly wage in a
manner that more fairly reflects the employee's average weekly wage and that is fair
and just to both parties or is in the manner agreed to by the parties. The commissioner
[commission] by rule may define methods to determine a fair and just average weekly
wage consistent with this section.
(g)iiAn insurance carrier is entitled to apply for and receive reimbursement at
least annually from the subsequent injury fund for the amount of income benefits paid
to a worker under this section that are based on employment other than the
employment during which the compensable injury occurred. The commissioner
[commission] may adopt rules that govern the documentation, application process,
and other administrative requirements necessary to implement this subsection.
SECTIONi1.158.iiSection 408.043(c), Labor Code, is amended to read as follows:
(c)iiIf, for good reason, the commissioner [commission] determines that
computing the average weekly wage for a seasonal employee as provided by this
section is impractical, the department [commission] shall compute the average weekly
wage as of the time of the injury in a manner that is fair and just to both parties.
SECTIONi1.159.iiSection 408.0445, Labor Code, is amended to read as follows:
Sec.i408.0445.iiAVERAGE WEEKLY WAGE FOR MEMBERS OF STATE MILITARY FORCES AND TEXAS TASK FORCE 1. (a) For purposes of computing income benefits or death benefits under Section 431.104, Government Code, the average weekly wage of a member of the state military forces as defined by Section 431.001, Government Code, who is engaged in authorized training or duty is an amount equal to the sum of the member's regular weekly wage at any employment the member holds in addition to serving as a member of the state military forces,
2316 79th Legislature — Regular Session 71st Day
(b)iiFor purposes of computing income benefits or death benefits under Section
88.303, Education Code, the average weekly wage of a Texas Task Force 1 member,
as defined by Section 88.301, Education Code, who is engaged in authorized training
or duty is an amount equal to the sum of the member's regular weekly wage at any
employment, including self-employment, that the member holds in addition to serving
as a member of Texas Task Force 1, except that the amount may not exceed 100
percent of the state average weekly wage as determined under Section 408.047. A
member for whom an average weekly wage cannot be computed shall be paid the
minimum weekly benefit established by the department [commission].
SECTIONi1.160.iiSections 408.0446(d) and (e), Labor Code, are amended to read as follows:
(d)iiIf the department [commission] determines that computing the average
weekly wage of a school district employee as provided by this section is impractical
because the employee did not earn wages during the 12 months immediately
preceding the date of the injury, the department [commission] shall compute the
average weekly wage in a manner that is fair and just to both parties.
(e)iiThe commissioner [commission] shall adopt rules as necessary to implement
this section.
SECTIONi1.161.iiSection 408.045, Labor Code, is amended to read as follows:
Sec.i408.045.iiNONPECUNIARY WAGES. The department [commission] may
not include nonpecuniary wages in computing an employee's average weekly wage
during a period in which the employer continues to provide the nonpecuniary wages.
SECTIONi1.162.iiSection 408.047, Labor Code, is amended to read as follows:
Sec.i408.047.iiSTATE AVERAGE WEEKLY WAGE. (a) On or after October 1,
2005, the [The] state average weekly wage is the amount computed by the Texas
Workforce Commission under Section 207.002 as the average weekly wage in
covered employment in this state [for the fiscal year beginning September 1, 2003,
and ending August 31, 2004, is $537, and for the fiscal year beginning September 1,
2004, and ending August 31, 2005, is $539].
(b)iiThe state average weekly wage for the period beginning September 1, 2005, and ending September 30, 2005, is $539. This subsection expires October 1, 2005.
SECTIONi1.163.iiSections 408.061(a), (b), (c), (d), (e), and (f), Labor Code, are amended to read as follows:
(a)iiA weekly temporary income benefit may not exceed 130 [100] percent of the
state average weekly wage under Section 408.047 rounded to the nearest whole dollar.
(b)iiA weekly impairment income benefit may not exceed 100 [70] percent of the
state average weekly wage rounded to the nearest whole dollar.
(c)iiA weekly supplemental income benefit may not exceed 100 [70] percent of
the state average weekly wage rounded to the nearest whole dollar.
(d)iiA weekly death benefit may not exceed 130 [100] percent of the state
average weekly wage rounded to the nearest whole dollar.
Tuesday, May 17, 2005 SENATE JOURNAL 2317
(e)iiA weekly lifetime income benefit may not exceed 130 [100] percent of the
state average weekly wage rounded to the nearest whole dollar.
(f)iiThe department [commission] shall compute the maximum weekly income
benefits for each state fiscal year not later than October [September] 1 of each year.
SECTIONi1.164.iiSection 408.062(b), Labor Code, is amended to read as follows:
(b)iiThe department [commission] shall compute the minimum weekly income
benefit for each state fiscal year not later than October [September] 1 of each year.
SECTIONi1.165.iiSection 408.063(a), Labor Code, is amended to read as follows:
(a)iiTo expedite the payment of income benefits, the commissioner [commission]
may by rule establish reasonable presumptions relating to the wages earned by an
employee, including the presumption that an employee's last paycheck accurately
reflects the employee's usual wage.
SECTIONi1.166.iiSection 408.202, Labor Code, is amended to read as follows:
Sec.i408.202.iiASSIGNABILITY OF BENEFITS. Benefits are not assignable,
except a legal beneficiary may, with department [commission] approval, assign the
right to death benefits.
SECTIONi1.167.iiSection 408.221, Labor Code, is amended by amending Subsections (a), (b), (d)-(g), and (i) and adding Subsection (c) to read as follows:
(a)iiAn attorney's fee, including a contingency fee, for representing a claimant
before the department [commission] or court under this subtitle must be approved by
the department [commission] or court.
(b)iiExcept 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
department [commission] or court. Except as provided by Subsection (c) or Section
408D.159(c) [408.147(c)], the attorney's fee shall be paid from the claimant's
recovery.
(c)iiAn insurance carrier that seeks judicial review under Subchapter G, Chapter 410, of a final decision of a commission appeals panel regarding compensability or eligibility for, or the amount of, income or death benefits is liable for reasonable and necessary attorney's fees as provided by Subsection (d) incurred by the claimant as a result of the insurance carrier's appeal if the claimant prevails on an issue on which judicial review is sought by the insurance carrier in accordance with the limitation of issues contained in Section 410.302. If the carrier appeals multiple issues and the claimant prevails on some, but not all, of the issues appealed, the court shall apportion and award fees to the claimant's attorney only for the issues on which the claimant prevails. In making that apportionment, the court shall consider the factors prescribed by Subsection (d). This subsection does not apply to attorney's fees for which an insurance carrier may be liable under Section 408.147. An award of attorney's fees under this subsection is not subject to commission rules adopted under Subsection (f).
(d)iiIn approving an attorney's fee under this section, the department
[commission] or court shall consider:
(1)iithe time and labor required;
(2)iithe novelty and difficulty of the questions involved;
(3)iithe skill required to perform the legal services properly;
2318 79th Legislature — Regular Session 71st Day
(4)iithe fee customarily charged in the locality for similar legal services;
(5)iithe amount involved in the controversy;
(6)iithe benefits to the claimant that the attorney is responsible for securing; and
(7)iithe experience and ability of the attorney performing the services.
(e)iiThe commissioner [commission] by rule or the court may provide for the
commutation of an attorney's fee, except that the attorney's fee shall be paid in
periodic payments in a claim involving death benefits if the only dispute is as to the
proper beneficiary or beneficiaries.
(f)iiThe commissioner [commission] by rule shall provide guidelines for
maximum attorney's fees for specific services in accordance with this section.
(g)iiAn attorney's fee may not be allowed in a case involving a fatal injury or
lifetime income benefit if the insurance carrier admits liability on all issues and
tenders payment of maximum benefits in writing under this subtitle while the claim is
pending before the department [commission].
(i)iiExcept as provided by Subsection (c) or Section 408D.159(c) [408.147(c)],
an attorney's fee may not exceed 25 percent of the claimant's recovery.
SECTIONi1.168.iiSection 408.222, Labor Code, is amended to read as follows:
Sec.i408.222.iiATTORNEY'S FEES PAID TO DEFENSE COUNSEL. (a) The
amount of an attorney's fee for defending an insurance carrier in a workers'
compensation action brought under this subtitle must be approved by the department
[commission] or court and determined by the department [commission] or court to be
reasonable and necessary.
(b)iiIn determining whether a fee is reasonable under this section, the department
[commission] or court shall consider issues analogous to those listed under Section
408.221(d). The defense counsel shall present written evidence to the department
[commission] or court relating to:
(1)iithe time spent and expenses incurred in defending the case; and
(2)iiother evidence considered necessary by the department [commission] or
court in making a determination under this section.
PART 10. ADOPTION OF CHAPTERS 408A, 408B,
AND 408C, LABOR CODE
SECTIONi1.201.iiThe heading to Subchapter B, Chapter 408, Labor Code, and Sections 408.004, 408.0041, 408.006-408.008, 408.021, 408.026, and 408.028-408.030, Labor Code, are designated as Chapter 408A, Labor Code, and that chapter is amended to read as follows:
CHAPTER 408A. WORKERS' COMPENSATION
[SUBCHAPTER B. MEDICAL] BENEFITS: GENERAL
PROVISIONS REGARDING MEDICAL BENEFITS
SUBCHAPTER A. GENERAL PROVISIONS
Sec.i408A.001 [408.021]. ENTITLEMENT TO MEDICAL BENEFITS. (a) An
employee who sustains a compensable injury is entitled to all health care reasonably
required by the nature of the injury as and when needed. The employee is specifically
entitled to health care that:
(1)iicures or relieves the effects naturally resulting from the compensable injury;
Tuesday, May 17, 2005 SENATE JOURNAL 2319
(2)iipromotes recovery; or
(3)iienhances the ability of the employee to return to or retain employment.
(b)iiMedical benefits are payable from the date of the compensable injury.
(c)iiExcept in an emergency, all health care must be approved or recommended by the employee's treating doctor.
(d)iiAn insurance carrier's liability for medical benefits may not be limited or terminated by agreement or settlement.
Sec.i408A.002i[408.004].iiREQUIRED MEDICAL EXAMINATIONS;
ADMINISTRATIVE VIOLATION. (a) The commissioner [commission] may
require an employee to submit to medical examinations to resolve any question about:
(1)iithe appropriateness of the health care received by the employee; or
(2)iisimilar issues.
(b)iiThe commissioner [commission] may require an employee to submit to a
medical examination at the request of the insurance carrier, but only after the
insurance carrier has attempted and failed to receive the permission and concurrence
of the employee for the examination. Except as otherwise provided by this subsection,
the insurance carrier is entitled to the examination only once in a 180-day period. The
commissioner [commission] may adopt rules that require an employee to submit to
not more than three medical examinations in a 180-day period under specified
circumstances, including to determine whether there has been a change in the
employee's condition, whether it is necessary to change the employee's diagnosis, and
whether treatment should be extended to another body part or system. The
commissioner [commission] by rule shall adopt a system for monitoring requests
made under this subsection by insurance carriers. That system must ensure that good
cause exists for any additional medical examination allowed under this subsection that
is not requested by the employee. A subsequent examination must be performed by
the same doctor unless otherwise approved by the commissioner [commission].
(c)iiThe insurance carrier shall pay for:
(1)iian examination required under Subsection (a) or (b); and
(2)iithe reasonable expenses incident to the employee in submitting to the examination.
(d)iiAn injured employee is entitled to have a doctor of the employee's choice
present at an examination required by the commissioner [commission] at the request
of an insurance carrier. The insurance carrier shall pay a fee set by the commissioner
[commission] to the doctor selected by the employee.
(e)iiAn employee who, without good cause as determined by the commissioner
[commission], fails or refuses to appear at the time scheduled for an examination
under Subsection (a) or (b) commits a violation. A violation under this subsection is a
Class D administrative violation. An employee is not entitled to temporary income
benefits, and an insurance carrier may suspend the payment of temporary income
benefits, during and for a period in which the employee fails to submit to an
examination under Subsection (a) or (b) unless the commissioner [commission]
determines that the employee had good cause for the failure to submit to the
examination. The commissioner [commission] may order temporary income benefits
to be paid for the period that the commissioner [commission] determines the
employee had good cause. The commissioner [commission] by rule shall ensure that
2320 79th Legislature — Regular Session 71st Day
(f)iiIf the report of a doctor selected by an insurance carrier indicates that an
employee can return to work immediately or has reached maximum medical
improvement, the insurance carrier may suspend or reduce the payment of temporary
income benefits on the 14th day after the date on which the insurance carrier files a
notice of suspension with the department [commission] as provided by this
subsection. [The commission shall hold an expedited benefit review conference, by
personal appearance or by telephone, not later than the 10th day after the date on
which the commission receives the insurance carrier's notice of suspension. If a
benefit review conference is not held by the 14th day after the date on which the
commission receives the insurance carrier's notice of suspension, an interlocutory
order, effective from the date of the report certifying maximum medical improvement,
is automatically entered for the continuation of temporary income benefits until a
benefit review conference is held, and the insurance carrier is eligible for
reimbursement for any overpayment of benefits as provided by Chapter 410. The
commission is not required to automatically schedule a contested case hearing as
required by Section 410.025(b) if a benefit review conference is scheduled under this
subsection. If a benefit review conference is held not later than the 14th day, the
commission may enter an interlocutory order for the continuation of benefits, and the
insurance carrier is eligible for reimbursement for any overpayments of benefits as
provided by Chapter 410.] The commissioner [commission] shall adopt rules as
necessary to implement this subsection under which:
(1)iian insurance carrier is required to notify the employee and the treating doctor of the suspension of benefits under this subsection by certified mail or another verifiable delivery method;
(2)iithe department [commission] makes a reasonable attempt to obtain the
treating doctor's opinion before the commissioner or a hearings officer [commission]
makes a determination regarding the entry of an interlocutory order under this subtitle
requiring continuation of benefits; and
(3)iithe commissioner [commission] may allow abbreviated contested case
hearings by personal appearance or telephone to consider issues relating to
overpayment of benefits under this section.
(g)iiAn insurance carrier who unreasonably requests a medical examination under Subsection (b) commits a violation. A violation under this subsection is a Class B administrative violation.
Sec.i408A.003i[408.0041].iiDESIGNATED DOCTOR EXAMINATION. (a)
At the request of an insurance carrier or an employee, the commissioner [commission]
shall order a medical examination to resolve any question about:
(1)iithe impairment caused by the compensable injury; or
(2)iithe attainment of maximum medical improvement.
(b)iiA medical examination requested under Subsection (a) shall be performed by
the next available doctor on the department's [commission's] list of designated
doctors whose credentials are appropriate for the issue in question and the injured
Tuesday, May 17, 2005 SENATE JOURNAL 2321
(c)iiThe treating doctor and the insurance carrier are both responsible for sending to the designated doctor all of the injured employee's medical records relating to the issue to be evaluated by the designated doctor that are in their possession. The treating doctor and insurance carrier may send the records without a signed release from the employee. The designated doctor is authorized to receive the employee's confidential medical records to assist in the resolution of disputes. The treating doctor and insurance carrier may also send the designated doctor an analysis of the injured employee's medical condition, functional abilities, and return-to-work opportunities.
(d)iiTo avoid undue influence on a person selected as a designated doctor under
this section, and except as provided by Subsection (c), only the injured employee or
an appropriate member of the staff of the department [commission] may communicate
with the designated doctor about the case regarding the injured employee's medical
condition or history before the examination of the injured employee by the designated
doctor. After that examination is completed, communication with the designated
doctor regarding the injured employee's medical condition or history may be made
only through appropriate department [commission] staff members. The designated
doctor may initiate communication with any doctor or health care provider who has
previously treated or examined the injured employee for the work-related injury or
with peer reviewers identified by the insurance carrier.
(e)iiThe designated doctor shall report to the department [commission]. The
report of the designated doctor has presumptive weight unless the great weight of the
evidence is to the contrary. An employer may make a bona fide offer of employment
subject to Sections 408D.053(e) [408.103(e)] and 408D.156(c) [408.144(c)] based on
the designated doctor's report.
(f)iiIf an insurance carrier is not satisfied with the opinion rendered by a
designated doctor under this section, the insurance carrier may request the
commissioner [commission] to order an employee to attend an examination by a
doctor selected by the insurance carrier. The commissioner [commission] shall allow
the insurance carrier reasonable time to obtain and present the opinion of the doctor
selected under this subsection before the commissioner [commission] makes a
decision on the merits of the issue in question.
(g)iiThe insurance carrier shall pay for:
(1)iian examination required under Subsection (a) or (f); and
(2)iithe reasonable expenses incident to the employee in submitting to the examination.
2322 79th Legislature — Regular Session 71st Day
(h)iiAn employee is not entitled to compensation, and an insurance carrier is
authorized to suspend the payment of temporary income benefits, during and for a
period in which the employee fails to submit to an examination required by this
chapter unless the commissioner [commission] determines that the employee had
good cause for the failure to submit to the examination. The commissioner
[commission] may order temporary income benefits to be paid for the period for
which the commissioner [commission] determined that the employee had good cause.
The commissioner [commission] by rule shall ensure that:
(1)iian employee receives reasonable notice of an examination and the insurance carrier's basis for suspension; and
(2)iithe employee is provided a reasonable opportunity to reschedule an examination for good cause.
(i)iiIf the report of a designated doctor indicates that an employee has reached maximum medical improvement, the insurance carrier may suspend or reduce the payment of temporary income benefits immediately upon written notice to the employee. The written notice shall include a clear statement of the employee's right to appeal the determination of the designated doctor.
Sec.i408A.004i[408.006].iiMENTAL TRAUMA INJURIES. (a) It is the express
intent of the legislature that nothing in this subtitle shall be construed to limit or
expand recovery in cases of mental trauma injuries.
(b)iiA mental or emotional injury that arises principally from a legitimate personnel action, including a transfer, promotion, demotion, or termination, is not a compensable injury under this subtitle.
Sec.i408A.005i[408.007].iiDATE OF INJURY FOR OCCUPATIONAL
DISEASE. For purposes of this subtitle, the date of injury for an occupational disease
is the date on which the employee knew or should have known that the disease may
be related to the employment.
Sec.i408A.006i[408.008].iiCOMPENSABILITY OF HEART ATTACKS. A
heart attack is a compensable injury under this subtitle only if:
(1)iithe attack can be identified as:
(A)iioccurring at a definite time and place; and
(B)iicaused by a specific event occurring in the course and scope of the employee's employment;
(2)iithe preponderance of the medical evidence regarding the attack indicates that the employee's work rather than the natural progression of a preexisting heart condition or disease was a substantial contributing factor of the attack; and
(3)iithe attack was not triggered solely by emotional or mental stress factors, unless it was precipitated by a sudden stimulus.
Sec.i408A.007 [408.028].iiPHARMACEUTICAL SERVICES. (a) A physician
providing care to an injured employee under this subtitle [subchapter] shall prescribe
for the employee any necessary prescription drugs, and order over-the-counter
alternatives to prescription medications as clinically appropriate and applicable, in
accordance with applicable state law and as provided by Subsection (b). A doctor
providing care may order over-the-counter alternatives to prescription medications,
when clinically appropriate, in accordance with applicable state law and as provided
by Subsection (b).
Tuesday, May 17, 2005 SENATE JOURNAL 2323
(b)iiThe commissioner [commission] by rule shall develop a closed [an open]
formulary under Section 413.011 that requires the use of generic pharmaceutical
medications and clinically appropriate over-the-counter alternatives to prescription
medications unless otherwise specified by the prescribing doctor, in accordance with
applicable state law.
(c)iiExcept as otherwise provided by this subtitle, an insurance carrier may not require an injured employee to use pharmaceutical services designated by the carrier.
(d)iiThe commissioner [commission] shall adopt rules to allow an injured
employee to purchase over-the-counter alternatives to prescription medications
prescribed or ordered under Subsection (a) or (b) and to obtain reimbursement from
the insurance carrier for those medications.
(e)iiNotwithstanding Subsection (b), the commissioner [commission] by rule
shall allow an injured employee to purchase a brand name drug rather than a generic
pharmaceutical medication or over-the-counter alternative to a prescription medication
if a health care provider prescribes a generic pharmaceutical medication or an
over-the-counter alternative to a prescription medication. The employee shall be
responsible for paying the difference between the cost of the brand name drug and the
cost of the generic pharmaceutical medication or of an over-the-counter alternative to
a prescription medication. The employee may not seek reimbursement for the
difference in cost from an insurance carrier and is not entitled to use the medical
dispute resolution provisions of Chapter 413 with regard to the prescription. A
payment described by this subsection by an employee to a health care provider does
not violate Section 413.042. This subsection does not affect the duty of a health care
provider to comply with the requirements of Subsection (b) when prescribing
medications or ordering over-the-counter alternatives to prescription medications.
Sec.i408A.0071.iiFEE SCHEDULE FOR PHARMACY AND PHARMACEUTICAL SERVICES. (a) Notwithstanding any other provision of this title, the department by rule shall adopt a fee schedule for pharmacy and pharmaceutical services which will:
(1)iiprovide reimbursement rates that are fair and reasonable;
(2)iiassure adequate access to medications and services for injured employees;
(3)iiminimize costs to employees and insurance carriers; and
(4)iiprospectively resolve uncertainty existing upon the effective date of this amendment regarding the application of the requirements of this title to fees for medications and pharmacy services, including whether and how to apply the requirements of Sections 413.011, 413.043, and 415.005.
(b)iiInsurance carriers and health care provider networks must reimburse for pharmacy benefits and services using the fee schedule as developed by this section, or at rates negotiated in advance by contract.
Sec.i408A.008 [408.029].iiNURSE FIRST ASSISTANT SERVICES. An
insurance carrier may not refuse to reimburse a health care practitioner solely because
that practitioner is a nurse first assistant, as defined by Section 301.1525, Occupations
Code, for a covered service that a physician providing health care services under this
subtitle has requested the nurse first assistant to perform.
2324 79th Legislature — Regular Session 71st Day
Sec.i408A.009 [408.030].iiREPORTS OF PHYSICIAN VIOLATIONS. If the
department [commission] discovers an act or omission by a physician that may
constitute a felony, a misdemeanor involving moral turpitude, a violation of a state or
federal narcotics or controlled substance law, an offense involving fraud or abuse
under the Medicare or Medicaid program, or a violation of this subtitle, the
commissioner [commission] shall immediately report that act or omission to the Texas
State Board of Medical Examiners.
Sec.i408A.010 [408.026].iiSPINAL SURGERY. Except in a medical emergency,
an insurance carrier is liable for medical costs related to spinal surgery only as
provided by Section 413.014 and commissioner [commission] rules.
Sec.i408A.011.iiUNDERSERVED AREAS. The commissioner by rule shall identify areas of this state in which access to health care providers is less available and shall adopt appropriate standards and guidelines regarding health care, including any use of provider networks, in those areas.
Sec.i408A.012.iiELECTRONIC BILLING REQUIREMENTS. (a) The commissioner by rule shall establish requirements regarding the electronic submission and processing of medical bills by health care providers to insurance carriers.
(b)iiInsurance carriers shall accept medical bills submitted electronically by health care providers in accordance with commissioner rule.
(c)iiThe commissioner shall by rule establish criteria for granting exceptions to insurance carriers and health care providers who are not able to accept medical bills electronically.
(d)iiThe commissioner may adopt rules, but not before January 1, 2008, regarding the electronic payment of medical bills by insurance carriers to health care providers upon sufficient evidence that such payments can be made without undue burden to carriers.
Sec.i408A.013.iiPEER REVIEW. (a) The commissioner shall adopt rules regarding doctors who perform peer review functions for insurance carriers. Those rules may include standards for peer review, imposition of sanctions on doctors performing peer review functions, including restriction, suspension, or removal of the doctor's ability to perform peer review on behalf of insurance carriers in the workers' compensation system, and other issues important to the quality of peer review, as determined by the commissioner.
(b)iiA doctor who performs peer review under this section must hold the appropriate professional license issued by this state.
SUBCHAPTER B. PAYMENT OF CLAIMS TO
HEALTH CARE PROVIDERS
Sec.i408A.051.iiCARRIER NOTICE. (a) An insurance carrier shall simultaneously notify the department, the injured employee, any representative of the injured employee, and the injured employee's treating doctor, and all other known health care providers providing direct services to the employee, of any disputes regarding compensability or extent of injury.
(b)iiAn insurance carrier may not deny payment on the ground of compensability for health care services provided before the date of the notification required under Subsection (a).
Tuesday, May 17, 2005 SENATE JOURNAL 2325
(c)iiIf the insurance carrier successfully contests compensability, the carrier is liable for health care provided before the notice in Subsection (a) up to a maximum of $7,000.
Sec.i408A.052.iiRECOVERY FROM HEALTH INSURER. (a) If the injury is finally determined to be noncompensable, the health care provider is entitled to recover from the injured employee's group health insurance company, if any, to the extent covered under the employee's health benefit plan.
(b)iiA health care provider may not file a claim with the injured employee's group health insurance company plan until final adjudication under the workers' compensation system of the compensability under Subtitle A of the services provided by the health care provider.
(c)iiIf an accident or health insurance carrier or other person obligated for the cost of health care services has paid for health care services for an employee for an injury for which a workers' compensation insurance carrier denies compensability, and the injury is later determined to be compensable, the accident or health insurance carrier or other person may recover the amounts paid for such services from the workers' compensation insurance carrier.
Sec.i408A.053.iiSUBMISSION OF CLAIM BY PROVIDER. (a) A health care provider must submit a claim for payment to the insurance carrier not later than the 95th day after the date on which the health care services are provided to the injured employee. Failure by the health care provider to timely remit a claim constitutes a forfeiture of the provider's right to reimbursement on the claim.
(b)iiThe insurance carrier shall review the provider's claim not later than the 65th day after the date on which the claim is received by the carrier. The carrier may request further documentation necessary to clarify the provider's charges at any time during the 65-day period. If the insurance carrier requests clarification under this subsection, the provider must provide the requested clarification not later than the 15th day after the date of receipt of the carrier's request.
Sec.i408A.054.iiDEADLINE FOR CARRIER ACTION. (a) The insurance carrier must pay, reduce, deny, or determine to audit the health care provider's claim not later than the 65th day after the date of receipt by the carrier of the provider's claim.
(b)iiIf the insurance carrier elects to audit the claim, the carrier must complete the audit not later than the 160th day after the date of receipt by the carrier of the provider's claim, and, not later than the 160th day after the receipt of the claim, must make a determination regarding:
(1)iithe relationship of the health care services provided to the compensable injury;
(2)iithe extent of the injury; and
(3)iithe medical necessity of the services provided.
(c)iiIf the insurance carrier chooses to audit the claim, the insurance carrier must pay to the health care provider 85 percent of:
(1)iiif the health care service is not provided through a provider network under Chapter 408B, the amount for the health care service established under the fee guidelines; or
2326 79th Legislature — Regular Session 71st Day
(2)iiif the health care service is provided through a provider network under Chapter 408B, the amount of the contracted rate for that health care service.
(d)iiIf the health care services provided are determined to be appropriate, the insurance carrier shall pay the health care provider the remaining 15 percent of the claim not later than the 160th day after the receipt of the claim.
(e)iiThe failure of the insurance carrier under Subsection (a) to pay, reduce, deny, or notify the health care provider of the intent to audit the claim by the 65th day after the date of receipt by the carrier of the provider's claim constitutes a Class C administrative violation.
(f)iiThe failure of the insurance carrier under Subsection (b) to pay, reduce, or deny an audited claim by the 160th day after the date of receipt of the claim constitutes a Class C administrative violation.
Sec.i408A.055.iiREIMBURSEMENT BY HEALTH CARE PROVIDER. (a) If the health care services provided are determined to be inappropriate, the insurance carrier shall:
(1)iinotify the health care provider in writing of the carrier's decision; and
(2)iidemand a refund by the provider of the portion of payment on the claim that was received by the provider for the inappropriate services.
(b)iiThe health care provider may appeal the insurance carrier's determination under Subsection (a). The provider must file an appeal under this subsection with the insurance carrier not later than the 45th day after the date of the insurance carrier's request for the refund. The insurance carrier must act on the appeal not later than the 45th day after the date on which the provider files the appeal.
(c)iiA health care provider must reimburse the insurance carrier for payments received by the provider for inappropriate charges not later than the 65th day after the date of the carrier's notice. The failure by the health care provider to timely remit payment to the carrier constitutes a Class D administrative violation.
Sec.i408A.056.iiMEDICAL EXAMINATION BY TREATING DOCTOR TO DEFINE COMPENSABLE INJURY. (a) The department shall require an injured employee to submit to a single medical examination to define the compensable injury on request by the insurance carrier.
(b)iiA medical examination under this section shall be performed by the employee's treating doctor. The insurance carrier shall pay the costs of the examination.
(c)iiAfter the medical examination is performed, the treating doctor shall submit to the insurance carrier a report that details all injuries and diagnoses related to the compensable injury, on receipt of which the insurance carrier shall accept all injuries and diagnoses as related to the compensable injury or shall dispute the determination of specific injuries and diagnoses.
(d)iiAny treatment for an injury or diagnosis that is not accepted by the insurance carrier under Subsection (c) as compensable at the time of the medical examination under Subsection (a) must be preauthorized before treatment is rendered. If the insurance carrier denies preauthorization because the treatment is for an injury or diagnosis unrelated to the compensable injury, the injured employee or affected health care provider may file an extent of injury dispute.
Tuesday, May 17, 2005 SENATE JOURNAL 2327
(e)iiAny treatment for an injury or diagnosis that is accepted by the insurance carrier under Subsection (c) as compensable at the time of the medical examination under Subsection (a) may not be reviewed for compensability, but may be reviewed for medical necessity.
(f)iiThe commissioner may adopt rules relating to requirements for a report under this section, including requirements regarding the contents of a report.
SECTIONi1.202.iiSubtitle A, Title 5, Labor Code, is amended by adding Chapters 408B and 408C, transferring Sections 408.022 and 408.025, Labor Code, to Chapter 408C, renumbering those sections as Sections 408C.002 and 408C.004, respectively, and amending those sections to read as follows:
CHAPTER 408B. WORKERS' COMPENSATION BENEFITS: REQUIREMENTS
FOR INSURANCE CARRIERS THAT USE PROVIDER NETWORKS
SUBCHAPTER A. GENERAL PROVISIONS
Sec.i408B.001.iiUSE OF PROVIDER NETWORK: GENERAL REQUIREMENTS FOR INSURANCE CARRIER. (a) An insurance carrier may arrange for health care services for injured employees through a provider network certified under this chapter. The obligations and requirements imposed under this chapter apply only to:
(1)iian insurance carrier that arranges for health care services for injured employees through a certified provider network; and
(2)iiservices provided for compensable injuries for which the insurance carrier is liable under this chapter.
(b)iiA person may not operate a provider network in this state unless the person holds a certificate issued under this chapter and under rules adopted by the commissioner.
(c)iiA person may not perform any act of a provider network except in accordance with the specific authorization of this chapter or rules adopted by the commissioner.
Sec.i408B.002.iiUSE OF PROVIDER NETWORK PROVIDERS. (a) Except for emergency care, or network-approved referrals, if an insurance carrier elects to use a certified provider network, an injured employee who is covered by that insurance carrier is required to obtain treatment for a compensable injury within the provider network if the injured employee lives within the provider network's service area.
(b)iiExcept for emergencies and out-of-network referrals, a provider network shall provide or arrange for health care services only through providers or provider groups that are under contract with or are employed by the provider network.
(c)iiNotwithstanding Subsections (a) and (b), a carrier shall provide and shall reimburse under department rule health care related to the compensable injury for an injured employee who is covered by a network but lives outside the service area in accordance with all provisions of this code, except this chapter.
(d)iiA network provider who has treated an employee may not serve as a designated doctor or perform a required medical examination for that employee for the compensable injury for which the provider provided treatment.
2328 79th Legislature — Regular Session 71st Day
(e)iiNotwithstanding any other provision of this chapter, prescription medication or services, as defined by Section 401.011(19)(E), may not be delivered through a workers' compensation health care network. Prescription medication and services shall be reimbursed as provided by the Texas Workers' Compensation Act and applicable rules of the department.
Sec.i408B.003.iiGENERAL PROVIDER NETWORK REQUIREMENTS. (a) Each provider network certified under this chapter must be a fee-for-service network designed to improve the quality and reduce the cost of health care provided to injured employees.
(b)iiInsurance carriers and the provider networks are prohibited from using capitation as a form of payment for contracted providers.
(c)iiA provider network is not an insurer and may not use in the provider network's name, contracts, or informational literature the word "insurance," "casualty," "surety," or "mutual" or any other word that is:
(1)iidescriptive of the insurance, casualty, or surety business; or
(2)iideceptively similar to the name or description of an insurer or surety corporation engaging in the business of insurance in this state.
Sec.i408B.004.iiINSURANCE CARRIER LIABILITY FOR OUT-OF-NETWORK HEALTH CARE. (a) An insurance carrier that establishes or contracts with a provider network is not liable for all or part of the cost of a health care service related to the compensable injury, other than emergency services, if the employee lives within a service area of any network established by the insurance carrier or with which the insurance carrier has a contract and obtains the health care service without provider network approval from:
(1)iia network provider other than the employee's treating doctor or a specialist to whom the employee is referred by the treating doctor; or
(2)iia non-network provider.
(b)iiAn insurance carrier that establishes or contracts with a provider network is liable for health care services related to a compensable injury provided by non-network providers to an injured employee who does not live within the geographical service area. Health care provided by a non-network provider is not subject to the provisions of this chapter other than this section, and is subject to all other provisions of this code.
Sec.i408B.005.iiRESTRAINT OF TRADE. (a) A provider network that contracts with a provider or providers practicing individually or as a group is not, because of the contract or arrangement, considered to have entered into a conspiracy in restraint of trade in violation of Chapter 15, Business & Commerce Code.
(b)iiNotwithstanding any other law, a person who contracts under this chapter with one or more providers in the process of conducting activities that are permitted by law but that do not require a certificate of authority or other authorization under this code or the Insurance Code is not, because of the contract, considered to have entered into a conspiracy in restraint of trade in violation of Chapter 15, Business & Commerce Code.
Tuesday, May 17, 2005 SENATE JOURNAL 2329
Sec.i408B.006.iiAUTHORITY OF COMMISSIONER. Except as expressly provided by this chapter, the powers and duties created by Chapter 36, Insurance Code, Article 21.58D, Insurance Code, and Sections 843.080, 843.082, 843.102, and 843.151, Insurance Code, do not apply to this chapter.
Sec.i408B.007.iiRULES. The commissioner may adopt rules as necessary to implement this chapter.
SUBCHAPTER B. GENERAL POWERS AND DUTIES OF
INSURANCE CARRIER AND PROVIDER NETWORK
Sec.i408B.051.iiNOTICE TO EMPLOYEES REQUIRED. (a) An insurance carrier that uses a certified provider network shall provide to the employer, and shall ensure that the employer provides to the employer's employees, notice of the provider network requirements, including all information required by Section 408B.052. The insurance carrier shall require the employer to:
(1)iiobtain a signed acknowledgment from each employee, written in English, Spanish, and any other language common to the employer's employees, that the employee has received information concerning the provider network and the provider network's requirements; and
(2)iipost notice of the provider network's requirements at each place of employment.
(b)iiThe insurance carrier shall ensure that an employer provides to each employee hired after the date notice is given under Subsection (a) the notice and information required under that subsection not later than the third day after the date of hire.
(c)iiThe insurance carrier shall require the employer to notify an injured employee of the provider network requirements at the time the employer receives actual or constructive notice of an injury.
(d)iiAn injured employee is not required to comply with the provider network requirements until the employee receives the notice required under Subsection (a).
(e)iiEach self-insured employer, employer group, and governmental entity that qualifies as an insurance carrier and establishes or contracts with a certified provider network shall also comply with the notice obligations established under Subsection (a).
Sec.i408B.052.iiCONTENTS OF NOTICE. (a) The written notice required under Section 408B.051(a) must be written in plain language and in a readable and understandable format, and must be provided in English, Spanish, and any additional language common to an employer's employees.
(b)iiThe notice must include, in a clear, complete, and accurate format:
(1)iia statement that, for workers' compensation purposes, the employer participates in a certified provider network and that employees must receive health care services through the certified provider network;
(2)iithe insurance carrier's toll-free telephone number and address for obtaining additional information about the certified provider network, including information about participating providers;
(3)iia statement that in the event of an injury, an employee must select a treating doctor from a list of all the treating doctors within the certified provider network that are located within the service area;
2330 79th Legislature — Regular Session 71st Day
(4)iia statement that, except for emergency services, an employee must obtain all health care and specialist referrals through the employee's treating doctor;
(5)iian explanation that participating providers have agreed to look only to the insurance carrier and not to employees for payment of health care services related to the compensable injury;
(6)iia statement that, if an employee lives within a service area of any network established by the insurance carrier or with which the insurance carrier has a contract, the employee may be liable for health care related to the compensable injury obtained from a non-participating provider, except for emergency care, health care obtained pursuant to a referral from the employee's treating doctor and prior to network approval, or health care provided pursuant to Section 408B.054;
(7)iiinformation about how to obtain emergency services, including emergency care outside the certified provider network's service area, and after-hours care;
(8)iian explanation regarding continuity of care in the event of the termination of a treating doctor from participation in the certified provider network;
(9)iia description of the complaint system, including a statement that the insurance carrier is prohibited from retaliating against:
(A)iian employee if the employee files a complaint against the carrier or appeals a decision of the carrier; or
(B)iia health care provider if the provider, on behalf of an employee, reasonably filed a complaint against the carrier or appeals a decision of the carrier;
(10)iia summary of the insurance carrier's procedures relating to adverse determinations and the availability of the independent review process;
(11)iia description of where and how to obtain a list of participating providers that includes:
(A)iithe names and addresses of the participating providers;
(B)iia statement of limitations of accessibility and referrals to specialists; and
(C)iia disclosure of which treating doctors are accepting new patients; and
(12)iia description of the certified provider network's service area.
(c)iiNothing in this title shall prohibit an insurance carrier that uses a certified provider network to provide to each covered employee a workers' compensation coverage identification card.
Sec.i408B.053.iiACCESS TO CARE; APPLICABILITY TO CLAIMS. (a) If the insurance carrier has opted to offer workers' compensation benefits through a certified provider network, all claims, including claims with a date of injury before, on, or after September 1, 2005, shall be administered under the provisions of this subchapter.
(b)iiExcept as provided by Section 408B.054, if the insurance carrier is responsible for a claim and provides benefits through a certified provider network, the carrier shall notify an injured employee at the time a claim is filed that the injured employee must select a treating doctor and obtain health care services from participating providers in accordance with the requirements of Subchapter G.
Tuesday, May 17, 2005 SENATE JOURNAL 2331
(c)iiExcept as provided by Section 408B.054, if the insurance carrier responsible for the claim does not arrange for health care services through a certified provider network on the date of injury, but arranges for health care services through a certified provider network at a later date, the carrier shall notify the injured employee that, not later than the 30th day after the date on which the notice is sent, the injured employee must select a treating doctor and obtain health care services from participating providers in accordance with the requirements of Subchapter G. If the injured employee fails to select a treating doctor on or before the 30th day after the date of receipt of the notice, the carrier may assign the injured employee a treating doctor within the certified provider network.
Sec.i408B.054.iiPRE-EXISTING RELATIONSHIPS; CONTINUITY OF CARE. (a) In this section:
(1)ii"Acute condition" means a medical condition that:
(A)iiinvolves a sudden onset of symptoms because of an illness, injury, or other medical problem that requires prompt medical attention; and
(B)iihas a duration of, and corresponding treatment for, not more than 30 days.
(2)ii"Terminal illness" means an incurable or irreversible condition that has a high probability of causing death within one year or less.
(b)iiThis section applies to medical benefits regarding an existing claim in which:
(1)iithe insurance carrier has decided to offer coverage solely through a workers' compensation certified provider network; or
(2)iitreatment is being provided by the insurance carrier through a workers' compensation certified provider network and the network contract with the injured employee's treating doctor is being terminated.
(c)iiThe insurance carrier shall provide for completion of treatment by non-participating providers for injured employees who are being treated by a treating doctor for:
(1)iian acute condition;
(2)iia terminal illness; or
(3)iiperformance of a surgical procedure or other procedure that:
(A)iiis authorized by the insurance carrier as part of a documented course of treatment; and
(B)iihas been recommended and documented by the health care provider to occur not later than the 30th day after the date the carrier begins to arrange for health care services through a certified provider network.
(d)iiCompletion of treatment shall be provided for the duration of a terminal illness.
(e)iiFollowing the determination of the injured employee's medical condition in accordance with Subsection (c), the insurance carrier shall notify the injured worker of the determination regarding the completion of treatment. The notification must be sent to the address at which the employee lives, with a copy of the letter sent to the non-participating provider.
2332 79th Legislature — Regular Session 71st Day
(f)iiIf the injured employee disputes the medical determination under Subsection (c), the injured employee shall request a report from the injured employee's non-participating provider that addresses whether the injured employee falls within any of the conditions set forth in Subsection (c).
(g)iiIf the employer or injured employee objects to the medical determination by the non-participating provider, the dispute regarding the medical determination made by the non-participating provider shall be resolved by use of the carrier's internal reconsideration process, to be followed, if necessary, by review by an independent review organization. The non-participating provider shall have the burden of proving that one of the conditions set forth in Subsection (c) exists.
(h)iiThe independent review organization shall order transfer of the care to a treating doctor and other participating providers in accordance with Subchapter G if the documented evidence fails to establish that one of the conditions set forth in Subsection (c) exists.
(i)iiIf the non-participating provider agrees with the carrier's determination that the injured employee's medical condition does not meet the conditions set forth in Subsection (c), the transfer of care shall go forward during the dispute resolution process.
(j)iiIf the non-participating provider does not agree with the carrier's determination that the injured employee's medical condition does not meet the conditions set forth in Subsection (c), the transfer of care may not go forward until the dispute is resolved. The non-participating provider's performed and prescribed medical services are subject to carrier preauthorization while the dispute is pending.
Sec.i408B.0545.iiTREATMENT BY PRIMARY CARE PHYSICIAN UNDER CHAPTERS 843 AND 1301, INSURANCE CODE. (a) Notwithstanding any other provision of this chapter, the commissioner shall adopt rules to allow an injured employee required to receive health care services within a network to select a physician who, at the time of the employee's work-related injury, was:
(1)iithe employee's primary care provider under Chapter 843, Insurance Code; or
(2)iia member of the preferred panel of a group health network under Chapter 1301, Insurance Code, under the terms of the employee's group health insurance plan.
(b)iiA physician selected by an employee under this section must:
(1)iiagree to comply with the terms and conditions of the workers' compensation network;
(2)iiagree to make all referrals within the workers' compensation network; and
(3)iicomply with the provisions of this chapter.
(c)iiHealth care services provided by a physician under this section are considered to be network services and are subject to the provisions of this chapter.
(d)iiAny change of treating doctor requested by an injured employee being treated by a physician under this section shall be to a network doctor and is subject to the requirements of this chapter.
Tuesday, May 17, 2005 SENATE JOURNAL 2333
Sec.i408B.055.iiACCESSIBILITY AND AVAILABILITY REQUIREMENTS. (a) All services provided under this chapter must be provided by a provider who holds an appropriate license, unless the provider is exempt from license requirements. Each provider network shall ensure that the provider network's provider panel includes a broad choice of health care providers, including an adequate number of treating doctors and specialists, who must be available and accessible to employees 24 hours a day, seven days a week, within the provider network's service area. An adequate number of the treating doctors and specialists must have admitting privileges at one or more provider network hospitals located within the provider network's service area to ensure that any necessary hospital admissions are made.
(b)iiHospital services must be available and accessible 24 hours a day, seven days a week, within the provider network's service area. The provider network shall provide for the necessary hospital services by contracting with general, special, and psychiatric hospitals.
(c)iiEmergency care must be available and accessible 24 hours a day, seven days a week, without restrictions as to where the services are rendered.
(d)iiExcept for emergencies, a provider network shall arrange for services, including referrals to specialists, to be accessible to employees on a timely basis on request, but not later than the 10th day after the date of the request.
(e)iiEach provider network shall provide that provider network services are sufficiently accessible and available as necessary to ensure that the distance from any point in the provider network's service area to a point of service by a treating doctor or general hospital is not greater than 30 miles in nonrural areas and 60 miles in rural areas. For portions of the service area in which the provider network identifies noncompliance with this subsection, the provider network must file an access plan with the department in accordance with Subsection (f).
(f)iiThe provider network shall submit an access plan, as required by commissioner rules, to the department for approval at least 30 days before implementation of the plan if any health care service or a provider network provider is not available to an employee within the distance specified by Subsection (e) because:
(1)iiproviders are not located within that distance;
(2)iithe provider network is unable to obtain provider contracts after good faith attempts; or
(3)iiproviders meeting the provider network's minimum quality of care and credentialing requirements are not located within that distance.
(g)iiThe provider network may make arrangements with providers outside the service area to enable employees to receive a higher level of skill or specialty not available within the provider network service area. The commissioner shall establish by rule what constitutes a higher level of skill necessary for a carrier to use providers outside the geographic service area. The rules shall include a required adequacy review by the commissioner.
(h)iiThe provider network may not be required to expand services outside the provider network's service area to accommodate employees who live outside the service area.
2334 79th Legislature — Regular Session 71st Day
Sec.i408B.056.iiTELEPHONE ACCESS. (a) Each provider network shall have appropriate personnel reasonably available through a toll-free telephone service at least 40 hours per week during normal business hours, in both time zones in this state if applicable, to discuss an employee's care and to allow response to requests for information, including information regarding adverse determinations.
(b)iiA provider network must have a telephone system capable of accepting, recording, or providing instructions to incoming calls during other than normal business hours. The provider network shall respond to those calls not later than two business days after the date:
(1)iithe call was received by the provider network; or
(2)iithe details necessary to respond were received by the provider network from the caller.
SUBCHAPTER C. CERTIFICATION OF PROVIDER NETWORKS
Sec.i408B.101.iiAPPLICATION FOR CERTIFICATION. (a) An insurance carrier that seeks to offer workers' compensation benefits through a certified provider network shall apply to the department for a certificate to determine the adequacy of the provider network to provide benefits under this subtitle.
(b)iiA certificate application must be:
(1)iifiled with the department in the form prescribed by the commissioner;
(2)iiverified by an authorized agent of the insurance carrier; and
(3)iiaccompanied by a nonrefundable fee set by commissioner rule.
Sec.i408B.102.iiCONTENTS OF APPLICATION. Each certificate application must include:
(1)iia description and a map of the insurance carrier's service area or areas, with key and scale, that identifies each county or part of a county to be served;
(2)iia list of all contracted provider network providers that demonstrates the adequacy of the provider network to provide comprehensive health care services sufficient to serve the population of injured employees within the service area, and maps that demonstrate that the access and availability standards are met;
(3)iia description of the types of compensation arrangements made or to be made between the provider network and its contracted providers in exchange for the provision of, or an arrangement to provide, health care services to employees;
(4)iia description of programs and procedures to be used, including:
(A)iia complaint system, as required under Subchapter I; and
(B)iia quality improvement program, as required under Section 408B.203; and
(5)iiany other information determined to be necessary by the commissioner to establish the adequacy and economic stability of the provider network.
Sec.i408B.103.iiCOMMISSIONER ACTION ON APPLICATION. (a) The commissioner shall approve or disapprove an application for certification of a provider network not later than the 60th day after the date the completed application is received by the department. An application is considered complete on receipt of all information required by this chapter and any commissioner rules, including receipt of any additional information requested by the commissioner as needed to make the determination.
Tuesday, May 17, 2005 SENATE JOURNAL 2335
(b)iiAdditional information requested by the commissioner under Subsection (a) may include information derived from an on-site quality-of-care examination.
(c)iiThe department shall notify the applicant of any deficiencies in the application and may allow the applicant to request additional time to revise the application, in which case the 60-day period for approval or disapproval is tolled. The commissioner may grant or deny requests for additional time at the commissioner's discretion.
(d)iiAn order issued by the commissioner disapproving an application must specify in what respects the application does not comply with applicable statutes and rules. An applicant whose application is disapproved may request a hearing not later than the 30th day after the date of the commissioner's disapproval order. The hearing is a contested case hearing under Chapter 2001, Government Code.
Sec.i408B.104.iiTERM OF CERTIFICATE. A certificate issued under this subchapter is valid until revoked or suspended by the commissioner.
SUBCHAPTER D. GENERAL REQUIREMENTS
RELATING TO CONTRACTS
Sec.i408B.151.iiGENERAL CONTRACT REQUIREMENTS. (a) Each carrier-network contract or participating provider contract must comply with this subchapter, as applicable.
(b)iiBefore entering into a carrier-network contract, an insurance carrier shall make a reasonable effort to evaluate the provider network's current and prospective ability to provide or arrange for health care services through participating providers, and to perform any functions delegated to the provider network in accordance with the provisions of this section.
(c)iiAn insurance carrier and a provider network may negotiate the functions to be delegated to the provider network. A carrier may not, through a contract with a provider network, transfer risk.
(d)iiA provider network is not required to accept an application for participation in the provider network from a health care provider who otherwise meets the requirements specified in this chapter for participation if the provider network determines that the provider network has contracted with a sufficient number of qualified health care providers.
(e)iiAn insurance carrier or certified provider network is not liable for any damages or losses alleged by the health care provider arising from a decision to withhold designation as a participating provider. No cause of action related to a refusal to include a provider in a certified provider network may be maintained against an insurance carrier or the certified provider network.
(f)iiA provider network that employs health care providers shall obtain from each participating provider network provider a written agreement that the provider acknowledges and agrees to the contractual provisions under this subchapter.
Sec.i408B.152.iiCARRIER-NETWORK CONTRACT REQUIREMENTS. A carrier-network contract must include:
(1)iia statement that the provider network's role is to provide the services described under this chapter that have been delegated by the carrier, subject to the carrier's oversight and monitoring of the provider network's performance;
2336 79th Legislature — Regular Session 71st Day
(2)iia description of the functions that the carrier delegates to the provider network, consistent with the requirements of this chapter, and the reporting requirements for each function;
(3)iito the extent the carrier delegates one or more of the functions to the provider network, a statement that the provider network will perform the obligations of the carrier in:
(A)iiarranging for the provision of health care through participating provider contracts that comply with the requirements of this section;
(B)iimanaging the selection of treating doctors in accordance with the requirements of Section 408B.302;
(C)iicomplying with the requirements related to termination of provider contracts under Section 408B.306;
(D)iioperating a utilization review plan in accordance with Subchapter H;
(E)iioperating a quality improvement program in accordance with the requirements of Section 408B.203; and
(F)iiperforming credentialing functions in accordance with the requirements of Section 408B.301;
(4)iia provision that requires the provider network to make available to the carrier participating provider contracts;
(5)iia statement that the provider network and any third party to which the provider network subdelegates any function delegated by the carrier to the provider network will perform delegated functions in compliance with the requirements of this subtitle;
(6)iia statement that the carrier retains ultimate responsibility for ensuring that all delegated functions are performed in accordance with this subchapter and that the contract may not be construed to limit in any way the carrier's responsibility to comply with applicable statutory and regulatory requirements;
(7)iia contingency plan under which the carrier would, in the event of termination of the carrier-network contract or a failure to perform, reassume one or more functions of the provider network under the contract, including functions related to:
(A)iinotification to employees;
(B)iiquality of care; and
(C)iicontinuity of care, including a plan for identifying and transitioning injured employees to new providers;
(8)iia provision that requires that any agreement by which the provider network subdelegates to a third party any function delegated by the carrier to the provider network be in writing and be approved by the carrier, and that such an agreement require the delegated third party to be subject to all the requirements of this subchapter;
(9)iia provision that requires the provider network to provide to the department the license number of any delegated third party who performs a function that requires a license as a utilization review agent under Article 21.58A, Insurance Code, or any other license under the Insurance Code or another insurance law of this state;
Tuesday, May 17, 2005 SENATE JOURNAL 2337
(10)iian acknowledgment that:
(A)iiany third party to which a provider network subdelegates any function delegated by the carrier to the provider network must perform in compliance with this subchapter, and that the third party is subject to the carrier's and the provider network's oversight and monitoring of its performance; and
(B)iiif the third party fails to meet monitoring standards established to ensure that functions delegated to the third party under the delegation contract are in full compliance with all statutory and regulatory requirements, the carrier or the provider network may cancel the delegation of one or more delegated functions; and
(11)iia provision for a quality improvement committee that shall have the responsibility of:
(A)iipromoting the delivery of health care services for employees;
(B)iideveloping and overseeing the implementation of programs aimed at promoting participating providers' understanding and application of nationally recognized, scientifically valid, outcome-based treatment and disability standards and guidelines applicable to the treatment of injuries;
(C)iirecommending specific actions, including provider education and training, for improving the quality of care provided to employees; and
(D)iicomplying with Section 408B.203.
Sec.i408B.153.iiCONTRACTS WITH PARTICIPATING PROVIDERS. A carrier-network contract and a participating provider contract must include:
(1)iia provision that the insurance carrier shall monitor the acts of the provider network or participating provider through a monitoring plan that must contain, at a minimum, the requirements set forth in Section 408B.201;
(2)iia provision that the insurance carrier shall provide to participating providers the source of the treatment guidelines and standards utilized to perform a pattern of practice review;
(3)iia provision that the contract:
(A)iimay not be terminated without cause by either party without 90 days' prior written notice; and
(B)iimay be terminated immediately if cause exists;
(4)iirequirements related to termination of, and appeal rights of, participating providers in accordance with Section 408B.306;
(5)iia continuity of care clause that states that if a health care provider's status as a participating provider terminates, the carrier is obligated to continue to reimburse the provider at the contracted rate for care of an employee with a life-threatening condition or an acute condition for which disruption of care would harm the employee if the provider requests continued care;
(6)iibilling and reimbursement provisions in accordance with Sections 408B.154-408B.156;
(7)iiutilization review requirements in accordance with Subchapter H;
(8)iiif the carrier uses a preauthorization process, a list of health care services that require preauthorization and information concerning the preauthorization process;
(9)iia hold-harmless clause stating that participating providers may not under any circumstances bill or attempt to collect any amounts from employees for health care services rendered for a compensable injury, including the insolvency of the
2338 79th Legislature — Regular Session 71st Day
(10)iia statement that the participating provider agrees to follow treatment guidelines, return-to-work guidelines, and individual treatment protocols adopted by the insurance carrier under this subtitle, as applicable to an employee's injury;
(11)iia requirement that the participating provider or provider network provide all necessary information to allow the insurance carrier or the employer to provide information to employees as required by Sections 408B.051 and 408B.052;
(12)iia requirement that the participating provider or provider network provide the carrier, in a form usable for audit purposes, the data necessary for the carrier to comply with regulatory reporting requirements with respect to any services provided under the contract;
(13)iia provision that any failure by the provider network or participating provider to comply with this subchapter or monitoring standards shall allow the carrier to terminate all or any part of the carrier-network contract or participating provider contract;
(14)iia provision that requires the provider network or participating provider to provide documentation, except for information, documents, and deliberations related to peer review for credentialing purposes that are confidential or privileged under state or federal law, that relates to:
(A)iiany regulatory agency's inquiry or investigation of the provider network or participating provider that relates to an employee covered by the carrier's workers' compensation policy; and
(B)iithe final resolution of any regulatory agency's inquiry or investigation;
(15)iia provision relating to complaints that requires the provider network or participating provider to ensure that on receipt of a complaint, a copy of the complaint shall be sent to the carrier and the department within two business days, except that in a case in which a complaint involves emergency care, the provider network or participating provider shall forward the complaint immediately to the carrier, and provided that nothing in this paragraph prohibits the provider network or participating provider from attempting to resolve a complaint;
(16)iia statement that a carrier may not engage in retaliatory action, including limiting coverage, against an employee because the employee or a person acting on behalf of the employee has filed a complaint against the carrier or appealed a decision of the carrier, and a carrier may not engage in retaliatory action, including refusal to renew or termination of a contract, against a participating provider because the provider has, on behalf of an employee, reasonably filed a complaint against the carrier or appealed a decision of the carrier;
(17)iia requirement that a complaint notice be posted in accordance with Section 408B.405;
(18)iia mechanism for the resolution of complaints initiated by complainants that complies with Subchapter I;
Tuesday, May 17, 2005 SENATE JOURNAL 2339
(19)iia statement that a provider network or participating provider may not engage in any of the prohibited practices listed under Subchapter J;
(20)iia statement that the carrier may not use any financial incentive or make a payment to a health care provider or certified provider network that acts directly or indirectly as an inducement to limit medically necessary services;
(21)iia clause regarding appeal by the provider of termination of provider status and applicable written notification to employees regarding such a termination, including any provisions required by the commissioner; and
(22)iiany other provisions required by the commissioner by rule.
Sec.i408B.154.iiAPPLICATION OF PROMPT PAY REQUIREMENTS. The prompt payment of health care services provided by the carrier or certified provider network is subject to Subchapter B, Chapter 408A.
Sec.i408B.155.iiREIMBURSEMENT. (a) The amount of reimbursement for services provided by a provider network provider is determined by the contract between the provider network and the provider or group of providers.
(b)iiIf a provider network has preauthorized a health care service, or if care was provided as a result of an emergency, the insurance carrier or provider network or the provider network's agent or other representative may not deny payment to a provider except for reasons other than medical necessity.
(c)iiA carrier shall reimburse out-of-network providers who provide health care related to a compensable injury to an injured employee who does not live within a service area of any network established by the insurance carrier or with which the insurance carrier has a contract, who provide emergency care, or whose referral by a provider network provider has been approved by the provider network either at a rate that is agreed to by both the provider network and the out-of-network provider, or in accordance with Section 413.011.
(d)iiSubject to Subsection (a), billing by, and reimbursement to, contracted and out-of-network providers is subject to standard reimbursement requirements as provided by this subtitle and applicable rules of the commissioner, as consistent with this subtitle. This subsection may not be construed to require application of rules of the commissioner regarding reimbursement if application of those rules would negate reimbursement amounts negotiated by the provider network.
(e)iiAn insurance carrier shall notify in writing a provider network provider if the carrier contests the compensability of the injury for which the provider provides health care services. A carrier may not deny payment for health care services provided by a provider network provider before that notification on the grounds that the injury was not compensable. The carrier is liable for a maximum of $7,000 for health care services that were provided before the notice required in this subsection was given.
(f)iiIf the carrier contests compensability of an injury and the injury is determined not to be compensable, the carrier may recover the amounts paid for health care services from the employee's accident or health insurance carrier or any other person who may be obligated for the cost of the health services.
(g)iiIf an accident or health insurance carrier or other person obligated for the cost of health care services has paid for health care services for an employee for an injury for which a workers' compensation insurance carrier denies compensability,
2340 79th Legislature — Regular Session 71st Day
Sec.i408B.156.iiRESTRICTIONS ON PAYMENT AND REIMBURSEMENT. (a) An insurance carrier or third-party administrator may not reimburse a doctor or other health care practitioner, an institutional provider, or an organization of doctors and health care providers on a discounted fee basis for services that are provided to an injured employee unless:
(1)iithe carrier or third-party administrator has contracted with either:
(A)iithe doctor or other practitioner, institutional provider, or organization of doctors and health care providers;i or
(B)iia provider network that has contracted with the doctor or other practitioner, institutional provider, or organization of doctors and health care providers;
(2)iithe doctor or other practitioner, institutional provider, or organization of doctors and health care providers has agreed to the contract and has agreed to provide health care services under the terms of the contract; and
(3)iithe carrier or third-party administrator has agreed to provide coverage for those health care services under this chapter.
(b)iiA party to a carrier-network contract may not sell, lease, or otherwise transfer information regarding the payment or reimbursement terms of the contract without the express authority of and prior adequate notification to the other contracting parties.i This subsection does not affect the authority of the commissioner under this code to request and obtain information.
(c)iiAn insurance carrier or third-party administrator who violates this section:
(1)iicommits an unfair claim settlement practice in violation of Subchapter A, Chapter 542, Insurance Code;i and
(2)iiis subject to administrative penalties under Chapters 82 and 84, Insurance Code.
SUBCHAPTER E. MONITORING PLAN; QUALITY IMPROVEMENT
Sec.i408B.201.iiMONITORING PLAN REQUIRED. (a) Each insurance carrier, or entity contracting with a carrier, that enters into carrier-network contracts or participating provider contracts shall monitor the acts of provider networks and participating providers through a monitoring plan.
(b)iiThe monitoring plan must be set forth in each carrier-network contract and participating provider contract, and must contain, at a minimum:
(1)iirequirements for review of the provider network's compliance with the requirements for participating provider contracts as set forth in Subchapter D;
(2)iiprovisions for review of the provider network's or participating provider's compliance with the terms of the carrier-network contract or participating provider contract, respectively, as well as with this chapter affecting the functions delegated by the carrier under the carrier-network contract;
(3)iiprovisions for review of the provider network's and participating provider's compliance with the process for terminating contracts with participating providers, as described by Section 408B.306;
Tuesday, May 17, 2005 SENATE JOURNAL 2341
(4)iiprovisions for review of the provider network's and participating provider's compliance with the utilization review processes set forth in Subchapter H;
(5)iiperiodic certification by the provider network on request by the carrier that the quality improvement program of the provider network and any third parties contracted with the provider network to perform quality improvement complies with the standards under Section 408B.203 to the extent delegated to the provider network by the carrier;
(6)iiperiodic signed statements provided by the provider network on request from the carrier, certifying that the credentialing standards of the provider network and any third parties contracted with the provider network to perform delegated credentialing functions comply with the standards under Section 408B.301 to the extent delegated to the provider network by the carrier;
(7)iia process to objectively evaluate the cost of health care services provided to employees by participating providers under this chapter;
(8)iipolicies and procedures for conducting a pattern of practice review;
(9)iiprocesses to provide the carrier, in a standard electronic format agreed to by the parties, the following information:
(A)iithe average medical cost per claim for health care services provided by a participating provider to employees;
(B)iithe utilization by employees of health care services provided by a participating provider;
(C)iiemployee release to return-to-work outcomes;
(D)iiemployee satisfaction and health-related functional outcomes;
(E)iithe frequency, duration, and outcome of complaints; and
(F)iithe frequency, duration, and outcome of disputes regarding medical benefits;
(10)iia program of education and training aimed at ensuring that participating providers are knowledgeable and skilled in the treatment of occupational injuries and illnesses and the use of disability guidelines, and familiar with the requirements and procedures of the workers' compensation system; and
(11)iipolicies and procedures for protecting the privacy and confidentiality of patient information.
Sec.i408B.202.iiCOMPLIANCE WITH MONITORING PLAN. (a) An insurance carrier that becomes aware of any information that indicates that a provider network or participating provider, or any third party to which the provider network or participating provider delegates a function, is not operating in accordance with the monitoring plan as described by Section 408B.201 or is operating in a condition that renders the continuance of the carrier's relationship with the provider network or participating provider hazardous to employees shall:
(1)iinotify the provider network or participating provider in writing of those findings; and
(2)iirequest in writing a written explanation, with documentation supporting the explanation, of:
(A)iithe provider network's or participating provider's apparent noncompliance with the contract; or
2342 79th Legislature — Regular Session 71st Day
(B)iithe existence of the condition that apparently renders the continuance of the carrier's relationship with the provider network or participating provider hazardous to employees.
(b)iiA provider network or participating provider shall respond to a request from a carrier under Subsection (a) in writing not later than the 30th day after the date the request is received. The carrier shall reasonably assist the participating provider or provider network in its efforts to correct any failure to comply with the monitoring plan or any hazardous condition that forms the basis of the carrier's findings.
(c)iiIf a carrier does not believe that a provider network or participating provider has corrected its failure to comply with the monitoring plan or any hazardous condition by the 90th day after the date the request under Subsection (a) is received, the carrier shall notify the commissioner and provide the department with copies of all notices and requests submitted to the provider network or participating provider and the responses and other documentation the carrier generates or receives in response to the notices and requests.
(d)iiOn receipt of a notice under Subsection (c), or on receipt of a complaint filed with the department only, the commissioner or the commissioner's designated representative shall examine the matters contained in the notice or complaint, as well as any other matter relating to the provider network's or participating provider's ability to meet its responsibilities in connection with any function performed by the provider network or participating provider.
(e)iiOn completion of the examination, the department shall report to the provider network or participating provider and the carrier the results of the examination and any action the department determines is necessary to ensure that the carrier and provider network or participating provider meets its responsibilities under this chapter, and that the provider network can meet its responsibilities in connection with any function delegated by the carrier or performed by the provider network or any third party to which the provider network delegates a function.
(f)iiThe carrier shall respond to the department's report and submit a corrective plan to the department not later than the 30th day after the date of receipt of the report.
(g)iiIn connection with an examination and report as described by Subsections (d)-(f), the commissioner may order a carrier to take any action the commissioner determines is necessary to ensure that the carrier can provide health care services under a workers' compensation insurance policy, including:
(1)iireassuming the functions performed by or delegated to the provider network;
(2)iitemporarily or permanently ceasing arranging for services to employees through the noncompliant provider network;
(3)iicomplying with the contingency plan required by Section 408B.152; or
(4)iiterminating the carrier's contract with the provider network or participating provider.
(h)iiA carrier-network contract or participating provider contract that is provided to the department in connection with an examination under this section is confidential and is not subject to disclosure as public information under Chapter 552, Government Code.
Tuesday, May 17, 2005 SENATE JOURNAL 2343
Sec.i408B.203.iiQUALITY IMPROVEMENT PROGRAM. (a) A carrier shall develop and maintain an ongoing quality improvement program designed to objectively and systematically monitor and evaluate the quality and appropriateness of care and services and to pursue opportunities for improvement. The quality improvement program must include return-to-work and medical case management programs.
(b)iiThe carrier is ultimately responsible for the quality improvement program. The carrier shall:
(1)iiappoint a quality improvement committee that includes participating providers;
(2)iiapprove the quality improvement program;
(3)iiapprove an annual quality improvement plan;
(4)iimeet at least annually to receive and review reports of the quality improvement committee or group of committees, and take action as appropriate;
(5)iireview the annual written report on the quality improvement program; and
(6)iireport the results of the quality improvement program to the department.
(c)iiThe quality improvement committee or committees shall evaluate the overall effectiveness of the quality improvement program.
(d)iiThe quality improvement program must be continuous and comprehensive and must address both the quality of clinical care and the quality of services. The carrier shall dedicate adequate resources, including adequate personnel and information systems, to the quality improvement program.
(e)iiThe carrier shall develop a written description of the quality improvement program that outlines the organizational structure of the program, including functional responsibilities and design.
(f)iiEach carrier shall implement a documented process for the credentialing of participating providers, in accordance with Section 408B.301.
(g)iiThe quality improvement program must provide for an effective peer review procedure for participating providers.
SUBCHAPTER F. EXAMINATIONS
Sec.i408B.251.iiEXAMINATION OF PROVIDER NETWORK. (a) As often as the commissioner considers necessary, the commissioner or the commissioner's designated representative may review the operations of a provider network to determine compliance with this chapter. The review may include on-site visits to the provider network's premises.
(b)iiDuring on-site visits, the provider network shall make available to the department all records relating to the provider network's operations.
Sec.i408B.252.iiEXAMINATION OF PROVIDER OR THIRD PARTY. If requested by the commissioner or the commissioner's representative, each provider, provider group, or third party with which the provider network has contracted to provide health care services or any other services delegated to the provider network by an insurance carrier shall make available for examination by the department that portion of the books and records of the provider, provider group, or third party that is relevant to the relationship with the provider network of the provider, provider group, or third party.
2344 79th Legislature — Regular Session 71st Day
SUBCHAPTER G. NETWORK PROVIDERS
Sec.i408B.301.iiCREDENTIALING. Each insurance carrier shall have processes for credentialing participating providers that appropriately assess and validate the qualifications and other relevant information relating to the providers.
Sec.i408B.302.iiTREATING DOCTORS. (a) An insurance carrier shall, by contract, require treating doctors to provide, at a minimum, the functions and services for employees described by this section.
(b)iiFor each injury, an injured employee shall notify the employee's employer or carrier under Section 408B.053 of the employee's selection of a treating doctor from the list of treating doctors within the certified provider network that are located within the provider network's service area.
(c)iiThe following doctors do not constitute an initial choice of treating doctor:
(1)iia doctor salaried by the employer;
(2)iia doctor recommended by the insurance carrier or the employer;
(3)iiany doctor who provides care before the employee is enrolled in the provider network; or
(4)iia doctor providing emergency care.
(d)iiThe participating employer, or the injured employee in a claim described under Section 408B.053, shall provide notice to the carrier or the carrier's designee of the selection of a treating doctor not later than the fifth business day after the date of the employee's selection.
(e)iiA treating doctor shall participate in the medical case management process as required by the carrier or provider network, including participation in return-to-work planning.
Sec.i408B.303.iiCHANGE IN TREATING DOCTOR. (a) An employee who is dissatisfied with the initial choice of a treating doctor is entitled to select an alternate treating doctor from the provider network's list of treating doctors whose practice is located within 30 miles of where the employee lives if the employee lives in an urban area or within 60 miles of where the employee lives if the employee lives in a rural area. The provider network may not deny an initial selection of an alternate treating doctor.
(b)iiIf the employee is dissatisfied with the employee's second choice of treating doctor, the employee may notify the carrier and request permission to select an alternate treating doctor.
(c)iiThe carrier shall establish procedures and criteria to be used in authorizing an employee to select an alternate treating doctor. The criteria must include, at a minimum, whether:
(1)iitreatment by the current treating doctor is medically inappropriate;
(2)iia conflict exists between the employee and the current treating doctor to the extent that the doctor-patient relationship is jeopardized or impaired; or
(3)iithe employee is receiving appropriate medical care to reach maximum medical improvement in accordance with the carrier's or provider network's treatment guidelines.
(d)iiA change of treating doctor may not be made to secure a new impairment rating or medical report.
Tuesday, May 17, 2005 SENATE JOURNAL 2345
(e)iiDenial of a request for a change of treating doctor is subject to the appeal process for a dispute filed under Subchapter C, Chapter 413.
(f)iiFor purposes of this section, the following does not constitute the selection of an alternate treating doctor:
(1)iia referral made by the treating doctor for health care services;
(2)iithe receipt of services ancillary to surgery;
(3)iithe obtaining of a second or subsequent opinion only on the appropriateness of the diagnosis or treatment;
(4)iithe selection of a new treating doctor because the original treating doctor:
(A)iidies;
(B)iiretires;
(C)iichanges location outside the service area distance requirements, as described by Section 408B.055(e); or
(D)iiterminates the doctor's contract with the carrier or provider network; or
(5)iia change of treating doctor required because of a change of address by the employee to a location outside the service area distance requirements, as described by Section 408B.055(e).
Sec.i408B.304.iiDESIGNATION OF SPECIALIST AS TREATING DOCTOR. (a) A provider network shall ensure that an injured employee with a chronic life-threatening condition or chronic pain related to a compensable injury may apply to the network's medical director to use a non-primary care specialist who is a participating health care provider as the injured employee's treating doctor.
(b)iiThe application must:
(1)iiinclude information specified by the provider network, including certification of the medical need for care by a specialist; and
(2)iibe signed by the injured employee and the non-primary care specialist interested in serving as the injured employee's treating doctor.
(c)iiTo be eligible to serve as the injured employee's treating doctor, a specialist doctor must:
(1)iimeet the provider network's requirements for participation; and
(2)iiagree to accept the responsibility to coordinate all of the injured employee's health care needs.
(d)iiIf a provider network denies a request under this section, the injured employee may appeal the decision through the network's established complaint and appeals process.
Sec.i408B.305.iiREFERRALS. (a) A treating doctor shall provide health care services to an injured employee for the employee's compensable injury and shall make referrals to other participating providers, or request from the carrier referrals to non-participating providers if a health care service is not available within the certified provider network.
(b)iiIf a medically necessary health care service is not available within the certified provider network, a carrier shall allow referral to a non-participating provider on the request of the treating doctor and within the time appropriate to the
2346 79th Legislature — Regular Session 71st Day
(c)iiHealth care services by a non-participating provider must be arranged by the carrier or certified provider network.
(d)iiHealth care services by a non-participating provider must be preauthorized by the carrier or certified provider network and may not be retrospectively reviewed for medical necessity.
(e)iiIf the provider network denies the referral request, the employee may appeal the decision to an independent review organization as provided by this subtitle.
Sec.i408B.306.iiTERMINATION OF CONTRACT. (a) A certified provider network may decline to renew a contract with a participating provider for any reason. Before terminating a participating provider contract, a carrier must provide to the participating provider 90 days' prior written notice of the termination.
(b)iiA certified provider network may terminate a contract with a participating provider for cause in the case of imminent harm to patient health, an action taken against the provider's license to practice, or reasonable cause to suspect fraud or malfeasance, in which case termination may be immediate.
(c)iiOn request, before the effective date of the termination and within a period not later than the 60th day after the date the carrier gave written notice under Subsection (a), a participating provider is entitled to a review by an advisory review panel of the carrier's proposed termination, except in a case involving:
(1)iiimminent harm to patient health;
(2)iian action by a state medical or dental board, another medical or dental licensing board, or another licensing board or government agency that effectively impairs the participating provider's ability to provide health care services; or
(3)iireasonable cause to suspect fraud or malfeasance.
(d)iiOn request by the health care provider whose participation in a certified provider network is being terminated or who is deselected, the health care provider is entitled to an expedited review process by the carrier.
Sec.i408B.307.iiADVISORY REVIEW PANEL. (a) An advisory review panel must:
(1)iibe composed of participating providers who are appointed to serve on the standing quality improvement committee or utilization review committee of the carrier; and
(2)iiinclude, if available, at least one representative of the participating provider's specialty or a similar specialty.
(b)iiThe carrier must consider, but is not bound by, the recommendation of the advisory review panel.
(c)iiOn request, the carrier shall provide to the affected participating provider a copy of the recommendation of the advisory review panel and the carrier determination.
Sec.i408B.308.iiNOTIFICATION OF INJURED EMPLOYEE. (a) Except as provided by Subsection (b), the carrier must provide notification of the termination of a participating provider to each injured employee currently receiving care from the provider being terminated at least 30 days before the effective date of the termination.
Tuesday, May 17, 2005 SENATE JOURNAL 2347
(b)iiNotification of termination of a participating provider for reasons related to imminent harm may be given immediately.
SUBCHAPTER H. UTILIZATION REVIEW
Sec.i408B.351. UTILIZATION REVIEW AGENT. An entity performing utilization review, including an insurance carrier or a certified provider network, must be a certified utilization review agent under Article 21.58A, Insurance Code.
Sec.i408B.352.iiGENERAL STANDARDS FOR UTILIZATION REVIEW; UTILIZATION REVIEW PLAN; SCREENING CRITERIA. (a) An entity performing utilization review shall use a utilization review plan. The plan must be reviewed and approved by a physician and be conducted in accordance with standards developed with input from appropriate providers, including doctors engaged in active practice.
(b)iiThe utilization review plan must include:
(1)iia list of the health care services that require preauthorization in addition to those in Section 413.014; and
(2)iiwritten procedures for:
(A)iiidentification of injured employees whose injuries or circumstances may not fit the screening criteria and who thus may require flexibility in the application of screening criteria through utilization review decisions;
(B)iinotification of the provider network's determinations provided in accordance with Section 408B.355;
(C)iiinforming appropriate parties of the process for reconsideration of an adverse determination, as required by Section 408B.356;
(D)iireceiving or redirecting toll-free normal business hours and after-hours telephone calls, either in person or by recording, and assurance that a toll-free telephone number is maintained 40 hours a week during normal business hours;
(E)iireview, including review of any form used during the review process and the time frames that must be met during the review;
(F)iiensuring that providers used by the provider network to perform utilization review:
(i)iimeet the provider network's credentialing standards; and
(ii)iiare appropriately trained to perform utilization review in accordance with Section 408B.354;
(G)iiensuring that any employee-specific information obtained during the process of utilization review is kept confidential in accordance with applicable federal and state laws; and
(H)iiscreening criteria that meet the requirements of Subsection (c).
(c)iiEach provider network shall use written medically acceptable screening criteria and review procedures that are established and periodically evaluated and updated with appropriate involvement from providers, including providers engaged in active practice. Utilization review decisions must be made in accordance with currently accepted medical or health care practices, taking into account any special circumstances of a case that may require deviation from the norm stated in the screening criteria. The screening criteria may be used only to determine whether to approve the requested treatment and must be:
2348 79th Legislature — Regular Session 71st Day
(1)iiobjective;
(2)iiclinically valid;
(3)iicompatible with established principles of health care; and
(4)iiflexible enough to allow deviations from the norm when justified on a case-by-case basis.
(d)iiThe utilization review plan must provide that denials of care be referred to an appropriate doctor to determine whether health care is medically reasonable and necessary. Treatment may not be denied solely on the basis that the treatment for the indication in question is not specifically addressed by the treatment guideline used by the carrier.
(e)iiThe written screening criteria and review procedures must be available for review and inspection as determined necessary by the commissioner or the commissioner's designated representative. However, any information obtained or acquired under the authority of this subtitle related to the screening criteria and the utilization review plan is confidential and privileged and is not subject to disclosure under Chapter 552, Government Code, or to subpoena except to the extent necessary for the commissioner to enforce this chapter.
Sec.i408B.353.iiGENERAL STANDARDS FOR RETROSPECTIVE REVIEW; SCREENING CRITERIA. An entity performing retrospective review shall use written screening criteria established and periodically updated with appropriate involvement from physicians, including practicing physicians, and other health care providers. Except as provided by this subtitle, the insurance carrier or provider network's system for retrospective review must be under the direction of a physician.
Sec.i408B.354.iiPERSONNEL. (a) Personnel employed by or under contract with a carrier or a certified provider network to perform utilization review or retrospective review must be appropriately trained and qualified and, if applicable, appropriately licensed in the State of Texas. Personnel who obtain information regarding an injured employee's specific medical condition, diagnosis, and treatment options or protocols directly from the treating doctor or other health care provider, either orally or in writing, and who are not doctors must be nurses, physician assistants, or other health care providers qualified to provide the service requested by the provider. This subsection may not be interpreted to require personnel who perform only clerical or administrative tasks to have the qualifications prescribed by this subsection.
(b)iiA carrier or a provider network may not permit or provide compensation or any thing of value to an employee or agent of the carrier or provider network, condition employment of a carrier or provider network employee or agent evaluation, or set the carrier or provider network's employee or agent performance standards based, in a manner inconsistent with the requirements of this subchapter, on:
(1)iithe amount or volume of adverse determinations;
(2)iireductions in or limitations on lengths of stay, duration of treatment, medical benefits, services, or charges; or
(3)iithe number or frequency of telephone calls or other contacts with health care providers or injured employees.
Tuesday, May 17, 2005 SENATE JOURNAL 2349
(c)iiNotwithstanding Section 4(h), Article 21.58A, Insurance Code, a utilization review agent that uses doctors to perform reviews of health care services provided under this subtitle shall use doctors appropriately licensed in this state to perform those reviews. The physician may be employed by or under contract to the carrier or provider network.
Sec.i408B.355.iiNOTICE OF ADVERSE DETERMINATIONS; PREAUTHORIZATION REQUIREMENTS. (a) Each carrier, or provider network if the carrier has delegated utilization review or retrospective review functions to the provider network, shall notify the employee or the employee's representative, if any, and the requesting provider of a determination made in a utilization review or retrospective review.
(b)iiNotification of an adverse determination by the provider network must include:
(1)iithe principal reasons for the adverse determination;
(2)iithe clinical basis for the adverse determination;
(3)iia description, source, and specific location and citation of the screening criteria that were used as guidelines in making the determination;
(4)iia description of the procedure for the reconsideration process; and
(5)iinotification of the availability of independent review in the form prescribed by the commissioner.
(c)iiThe insurance carrier, or the provider network if the carrier has delegated utilization review functions to the provider network, shall specify which health care treatments or services provided in the provider network require preauthorization or concurrent review by the insurance carrier or the provider network. At a minimum, those treatments must include the preauthorization requirements in Section 413.014. Treatments and services for a medical emergency do not require preauthorization. On receipt of a preauthorization request from a provider for proposed services that require preauthorization, the carrier, or the provider network if utilization review functions have been delegated to the provider network, shall issue and transmit a determination indicating whether the proposed health care services are preauthorized. The provider network shall respond to requests for preauthorization within the periods prescribed by this section.
(d)iiFor services not described by Subsection (e) or (f), the determination under Subsection (c) must be issued and transmitted not later than the third calendar day after the date the request is received by the provider network.
(e)iiIf the proposed services are for concurrent hospitalization care, the carrier or the provider network shall, within 24 hours of receipt of the request, transmit a determination indicating whether the proposed services are preauthorized.
(f)iiIf the proposed health care services involve poststabilization treatment or a life-threatening condition, the carrier or the provider network shall transmit to the requesting provider a determination indicating whether the proposed services are preauthorized within the time appropriate to the circumstances relating to the delivery of the services and the condition of the patient, not to exceed one hour from receipt of the request. If the carrier or the provider network issues an adverse determination in response to a request for poststabilization treatment or a request for treatment
2350 79th Legislature — Regular Session 71st Day
(g)iiFor life-threatening conditions, the notification of adverse determination must include notification of the availability of independent review in the form prescribed by the commissioner.
Sec.i408B.356.iiRECONSIDERATION OF ADVERSE DETERMINATION. (a) Each carrier, or provider network if the carrier has delegated utilization review or retrospective review functions to the provider network, shall maintain and make available a written description of the carrier's or provider network's reconsideration procedures involving an adverse determination. The reconsideration procedures must be reasonable and must include:
(1)iia provision stating that reconsideration shall be performed by a provider other than the provider who made the original adverse determination;
(2)iia provision that an employee, a person acting on behalf of the employee, or the employee's requesting provider may, not later than the 30th day after the date of issuance of written notification of an adverse determination, request reconsideration of the adverse determination either orally or in writing;
(3)iia provision that, not later than the fifth calendar day after the date of receipt of the request, the provider network shall send to the requesting party a letter acknowledging the date of the receipt of the request and that includes a reasonable list of documents the requesting party is required to submit;
(4)iia provision that, after the carrier or provider network completes the review of the request for reconsideration of the adverse determination, the carrier or provider network agent shall issue a response letter to the employee or person acting on behalf of the employee and the employee's requesting provider, that:
(A)iiexplains the resolution of the reconsideration; and
(B)iiincludes:
(i)iia statement of the specific medical or clinical reasons for the resolution;
(ii)iithe medical or clinical basis for the decision;
(iii)iithe professional specialty of any provider consulted; and
(iv)iinotice of the requesting party's right to seek review of the denial by an independent review organization and the procedures for obtaining that review; and
(5)iiwritten notification to the requesting party of the determination of the request for reconsideration as soon as practicable, but not later than the 30th day after the date the utilization review agent received the request.
(b)iiIn addition to the written request for reconsideration, the reconsideration procedures must include a method for expedited reconsideration procedures for denials of proposed health care services involving poststabilization treatment or life-threatening conditions, and for denials of continued stays for hospitalized employees. The procedures must include a review by a provider who has not previously reviewed the case and who is of the same or a similar specialty as a provider who typically manages the condition, procedure, or treatment under review. The period during which that reconsideration must be completed must be based on the
Tuesday, May 17, 2005 SENATE JOURNAL 2351
(c)iiNotwithstanding Subsection (a) or (b), an employee with a life-threatening condition is entitled to an immediate review by an independent review organization and is not required to comply with the procedures for a reconsideration of an adverse determination.
Sec.i408B.357.iiDISPUTE RESOLUTION. Fee disputes are subject to the provider network complaint process under Subchapter I. Disputes regarding medical necessity are subject to Subchapter C, Chapter 413.
SUBCHAPTER I. COMPLAINT RESOLUTION
Sec.i408B.401.iiCOMPLAINT SYSTEM REQUIRED. (a) Each provider network shall implement and maintain a complaint system that provides reasonable procedures to resolve an oral or written complaint.
(b)iiThe provider network may require a complainant to file the complaint not later than the 90th day after the date of the event or occurrence that is the basis for the complaint.
(c)iiThe complaint system must include a process for the notice and appeal of a complaint.
(d)iiThe commissioner may adopt rules as necessary to implement this section.
Sec.i408B.402.iiCOMPLAINT INITIATION AND INITIAL RESPONSE; DEADLINES FOR RESPONSE AND RESOLUTION. (a) If a complainant notifies a provider network of a complaint, the provider network, not later than the fifth business day after the date the provider network receives the complaint, shall respond to the complainant, acknowledging the date of receipt of the complaint and providing a description of the provider network's complaint procedures and deadlines.
(b)iiThe provider network shall investigate and resolve a complaint not later than the 30th calendar day after the date the provider network receives the complaint.
Sec.i408B.403.iiRECORD OF COMPLAINTS. (a) Each provider network shall maintain a complaint and appeal log regarding each complaint. The commissioner shall adopt rules designating the classification of provider network complaints under this section.
(b)iiEach provider network shall maintain a record of and documentation on each complaint, complaint proceeding, and action taken on the complaint until the third anniversary of the date the complaint was received.
(c)iiA complainant is entitled to a copy of the provider network's record regarding the complaint and any proceeding relating to that complaint.
(d)iiThe department, during any investigation or examination of a provider network, may review documentation maintained under this subchapter, including original documentation, regarding a complaint and action taken on the complaint.
Sec.i408B.404.iiRETALIATORY ACTION PROHIBITED. A provider network may not engage in any retaliatory action against an employer or employee because the employer or employee or a person acting on behalf of the employer or employee has filed a complaint against the provider network.
2352 79th Legislature — Regular Session 71st Day
Sec.i408B.405.iiPOSTING OF INFORMATION ON COMPLAINT PROCESS REQUIRED. (a) A contract between a provider network and a provider must require the provider to post, in the provider's office, a notice to injured employees on the process for resolving complaints with the provider network.
(b)iiThe notice required under Subsection (a) must include the department's toll-free telephone number for filing a complaint.
SUBCHAPTER J. PROHIBITED PRACTICES
Sec.i408B.451.iiNO INDUCEMENT TO LIMIT SERVICES. An insurance carrier may not use any financial incentive or make a payment to a health care provider that acts directly or indirectly as an inducement to limit services.
Sec.i408B.452.iiINDEMNIFICATION; LIABILITY. (a) An insurance carrier may not require participating providers, by contract or otherwise, to indemnify the carrier for any liability in tort resulting from an act or omission of the carrier.
(b)iiA carrier-network contract or participating provider contract may not transfer liability for acts of one or more parties to any other parties. Each entity shall only be responsible for its own acts, omissions, and decisions relative to the providing of health care services to employees.
Sec.i408B.453.iiNO LIMITATION ON PROVIDER COMMUNICATION. An insurance carrier may not, as a condition of contract with a participating provider, or in any other manner, prohibit, attempt to prohibit, or discourage a participating provider from discussing with or communicating to an employee under the participating provider's care, information or opinions regarding that employee's medical condition or treatment options.
Sec.i408B.454.iiMISLEADING INFORMATION. An employer, insurance carrier, health care provider, employee, or agent or representative of an employer or carrier may not cause or permit the use or distribution to employees of information that is intentionally untrue or intentionally misleading.
SUBCHAPTER K. DISCIPLINARY ACTIONS
Sec.i408B.501.iiDETERMINATION OF VIOLATION; NOTICE. (a) If the commissioner determines that a provider network, insurance carrier, or any other person or third party operating under this chapter, including a third party to which a provider network delegates a function, is in violation of this chapter, rules adopted by the commissioner under this chapter, or applicable provisions of the Insurance Code or rules adopted under that code, the commissioner or a designated representative may notify the provider network, insurance carrier, person, or third party of the alleged violation and may compel the production of any documents or other information as necessary to determine whether the violation occurred.
(b)iiThe commissioner's designated representative may initiate the proceedings under this section.
(c)iiA proceeding under this section is a contested case under Chapter 2001, Government Code.
Sec.i408B.502.iiDISCIPLINARY ACTIONS. If under Section 408B.501 the commissioner determines that a provider network, insurance carrier, or other person or third party described under Section 408B.501 has violated or is violating this chapter, rules adopted by the commissioner under this chapter, or the Insurance Code or rules adopted under that code, the commissioner may:
Tuesday, May 17, 2005 SENATE JOURNAL 2353
(1)iisuspend or revoke a certificate issued under this subtitle;
(2)iiimpose sanctions under Chapter 82, Insurance Code;
(3)iiissue a cease and desist order under Chapter 83, Insurance Code; or
(4)iiimpose administrative penalties under Chapter 84, Insurance Code.
CHAPTER 408C. REQUIREMENTS FOR NON-NETWORK HEALTH CARE AND OUT-OF-NETWORK HEALTH CARE
Sec.i408C.001.iiAPPLICABILITY OF CHAPTER. This chapter applies only to medical benefits provided through an insurance carrier that does not use a provider network.
Sec.i408C.002 [408.022]. SELECTION OF DOCTOR. (a) Except as provided
in Subsection (f), an [in an emergency, the commission shall require an employee to
receive medical treatment from a doctor chosen from a list of doctors approved by the
commission. A doctor may perform only those procedures that are within the scope of
the practice for which the doctor is licensed. The] employee is entitled to the
employee's initial choice of a doctor as provided by this section [from the
commission's list]. The injured employee shall notify the employer, who shall notify
the insurance carrier, of the employee's choice of treating doctor not later than the
later of:
(1)iithe date on which the employee notifies the employer of the injury; or
(2)iithe date of the first non-emergency visit to a health care provider.
(b)iiIf an employee is dissatisfied with the initial choice of a doctor [from the
commission's list], the employee may notify the department [commission] and request
authority to select an 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)iiThe commissioner [commission] shall prescribe criteria to be used by the
department [commission] in granting the employee authority to select an alternate
doctor. The criteria may include:
(1)iiwhether treatment by the current doctor is medically inappropriate;
(2)iithe professional reputation of the doctor;
(3)iiwhether the employee is receiving appropriate medical care to reach maximum medical improvement; and
(4)iiwhether a conflict exists between the employee and the doctor to the extent that the doctor-patient relationship is jeopardized or impaired.
(d)iiA change of doctor may not be made to secure a new impairment rating or medical report.
(e)iiFor purposes of this section, the following is not a selection of an alternate doctor:
(1)iia referral made by the doctor chosen by the employee if the referral is medically reasonable and necessary;
(2)iithe receipt of services ancillary to surgery;
(3)iithe obtaining of a second or subsequent opinion only on the appropriateness of the diagnosis or treatment;
(4)iithe selection of a doctor because the original doctor:
(A)iidies;
(B)iiretires; or
2354 79th Legislature — Regular Session 71st Day
(C)iibecomes unavailable or unable to provide medical care to the employee; or
(5)iia change of doctors required because of a change of address [residence]
by the employee.
(f)iiNotwithstanding the repeal by this Act of Sections 408.023 and 408.0231, Labor Code, there may be no direct or indirect provision of health care under the workers' compensation Act and rules, and no direct or indirect receipt of remuneration under the Act and rules by a doctor who:
(1)iibefore the effective date of this Act:
(A)iiwas removed or deleted from the list of approved doctors either by action of the Texas Workers' Compensation Commission or by agreement with the doctor; or
(B)iiwas not admitted to the list of approved doctors either by action of the Texas Workers' Compensation Commission or by agreement with the doctor;
(C)iiwas suspended from the list of approved doctors either by action of the Texas Workers' Compensation Commission or by agreement with the doctor; or
(D)iihad the license to practice suspended by the appropriate licensing board including those whose suspension was stayed, deferred, or probated, or voluntarily relinquished the license to practice; and
(2)iiwas not reinstated or restored by the Texas Workers' Compensation Commission to the list of approved doctors prior to the effective date of this Act.
Sec.i408C.003.iiTREATING DOCTOR DUTIES. (a) The injured employee's treating doctor is responsible for the efficient management of medical care as required by Section 408C.004(c) and commissioner rules. The department shall collect information regarding:
(1)iireturn-to-work outcomes;
(2)iipatient satisfaction; and
(3)iicost and utilization of health care provided or authorized by a treating doctor.
(b)iiThe commissioner may adopt rules to define the role of the treating doctor and to specify outcome information to be collected for a treating doctor.
(c)iiA doctor who provides health care services under this chapter may perform only those procedures that are within the scope of the practice for which the doctor is licensed.
Sec.i408C.004 [408.025].iiREPORTS AND RECORDS REQUIRED FROM
HEALTH CARE PROVIDERS. (a) The commissioner [commission] by rule shall
adopt requirements for reports and records that are required to be filed with the
department [commission] or provided to the injured employee, the employee's
attorney, or the insurance carrier by a health care provider.
(b)iiThe commissioner [commission] by rule shall adopt requirements for reports
and records that are to be made available by a health care provider to another health
care provider to prevent unnecessary duplication of tests and examinations.
(c)iiThe treating doctor is responsible for maintaining efficient utilization of health care.
Tuesday, May 17, 2005 SENATE JOURNAL 2355
(d)iiOn the request of an injured employee, the employee's attorney, or the
insurance carrier, a health care provider shall furnish records relating to treatment or
hospitalization for which compensation is being sought. The department
[commission] may regulate the charge for furnishing a report or record, but the charge
may not be less than the fair and reasonable charge for furnishing the report or record.
A health care provider may disclose to the insurance carrier of an affected employer
records relating to the diagnosis or treatment of the injured employee without the
authorization of the injured employee to determine the amount of payment or the
entitlement to payment.
Sec.i408C.005.iiPREAUTHORIZATION; UTILIZATION REVIEW FOR OUT-OF-NETWORK CARE. (a) The preauthorization requirements of Section 413.014 apply to out-of-network care.
(b)iiFor out-of-network care, an insurance carrier may:
(1)iiperform utilization review itself if the carrier is a certified utilization review agent under Article 21.58A, Insurance Code; or
(2)iicontract for utilization review services with a certified utilization review agent.
Sec.i408C.006.iiDISPUTE RESOLUTION FOR OUT-OF-NETWORK CARE. The medical dispute resolution requirements of Subchapter C, Chapter 413, apply to a dispute regarding out-of-network care.
SECTIONi1.203.iiThe following laws are repealed:
(1)iiSections 408.0221-408.0223, Labor Code;
(2)iiSection 408.023, Labor Code;
(3)iiSection 408.0231, Labor Code; and
(4)iiSection 408.024, Labor Code.
PART 11. ADOPTION OF CHAPTERS 408D AND 408E,
LABOR CODE
SECTIONi1.251.iiSubchapters E, F, G, H, and I, Chapter 408, Labor Code, are redesignated as Chapter 408D, Labor Code, and that chapter is amended to read as follows:
CHAPTER 408D. WORKERS' COMPENSATION BENEFITS:
INCOME BENEFITS
SUBCHAPTER A [E]. INCOME BENEFITS: [IN] GENERAL PROVISIONS
Sec.i408D.001 [408.081].iiINCOME BENEFITS. (a) An employee is entitled to
income benefits as provided by [in] this subtitle [chapter].
(b)iiExcept as otherwise provided by this section or this subtitle, income benefits
shall be paid as required under Section 409.021(a) weekly as and when they accrue
without order from the commissioner [commission]. Interest on accrued but unpaid
benefits shall be paid, without order of the commissioner [commission], at the time
the accrued benefits are paid.
(c)iiThe commissioner [commission] by rule shall establish requirements for
agreements under which income benefits may be paid monthly. Income benefits may
be paid monthly only:
(1)iion the request of the employee and the agreement of the employee and the insurance carrier; and
2356 79th Legislature — Regular Session 71st Day
(2)iiin compliance with the requirements adopted by the commissioner
[commission].
(d)iiAn employee's entitlement to income benefits under this chapter terminates on the death of the employee. An interest in future income benefits does not survive after the employee's death.
Sec.i408D.002i[408.082].iiACCRUAL OF RIGHT TO INCOME BENEFITS.
(a) Income benefits may not be paid under this subtitle for an injury that does not
result in disability for at least one week.
(b)iiIf the disability continues for longer than one week, weekly income benefits begin to accrue on the eighth day after the date of the injury. If the disability does not begin at once after the injury occurs or within eight days of the occurrence but does result subsequently, weekly income benefits accrue on the eighth day after the date on which the disability began.
(c)iiIf the disability continues for 14 days [four weeks] or longer after the date
the disability [it] begins, compensation shall be computed from the date the disability
begins.
(d)iiThis section does not preclude the recovery of medical benefits as provided
by this subtitle [Subchapter B].
Sec.i408D.003i[408.083].iiTERMINATION OF RIGHT TO TEMPORARY
INCOME, IMPAIRMENT INCOME, AND SUPPLEMENTAL INCOME
BENEFITS. (a) Except as provided by Subsection (b), an employee's eligibility for
temporary income benefits, impairment income benefits, and supplemental income
benefits terminates on the expiration of 401 weeks after the date of injury.
(b)iiIf an employee incurs an occupational disease, the employee's eligibility for temporary income benefits, impairment income benefits, and supplemental income benefits terminates on the expiration of 401 weeks after the date on which benefits began to accrue.
Sec.i408D.004i[408.084].iiCONTRIBUTING INJURY. (a) At the request of the
insurance carrier, the commissioner [commission] may order that impairment income
benefits and supplemental income benefits be reduced in a proportion equal to the
proportion of a documented impairment that resulted from earlier compensable
injuries.
(b)iiThe department [commission] shall consider the cumulative impact of the
compensable injuries on the employee's overall impairment in determining a
reduction under this section.
(c)iiIf the combination of the compensable injuries results in an injury
compensable under Section 408D.201 [408.161], the benefits for that injury shall be
paid as provided by Section 408D.202 [408.162].
Sec.i408D.005i[408.085].iiADVANCE OF BENEFITS FOR HARDSHIP. (a) If
there is a likelihood that income benefits will be paid, the department [commission]
may grant an employee suffering 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 ordered before or after the employee attains maximum medical
improvement. An insurance carrier shall pay the advance ordered.
Tuesday, May 17, 2005 SENATE JOURNAL 2357
(b)iiAn employee must apply to the department [commission] for an advance on
a form prescribed by the commissioner [commission]. The application must describe
the hardship that is the grounds for the advance.
(c)iiAn advance under this section may not exceed an amount equal to four times
the maximum weekly benefit for temporary income benefits as computed under [in]
Section 408.061. The department [commission] may not grant more than three
advances to a particular employee based on the same injury.
(d)iiThe department [commission] may not grant an 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 408D.109
[408.129].
Sec.i408D.006i[408.086].iiDEPARTMENT [COMMISSION]
DETERMINATION OF EXTENDED UNEMPLOYMENT OR
UNDEREMPLOYMENT. (a) During the period that impairment income benefits or
supplemental income benefits are being paid to an employee, the department
[commission] shall determine at least annually whether any extended unemployment
or underemployment is a direct result of the employee's impairment.
(b)iiTo make this determination, the department [commission] may require
periodic reports from the employee and the insurance carrier and, at the insurance
carrier's expense, may require physical or other examinations, vocational assessments,
or other tests or diagnoses necessary to perform the department's duties [its duty]
under this section and Subchapter D [H].
SUBCHAPTER B [F]. TEMPORARY INCOME BENEFITS
Sec.i408D.051i[408.101].iiTEMPORARY INCOME BENEFITS. (a) An
employee is entitled to temporary income benefits if the employee has a disability and
has not attained maximum medical improvement.
(b)iiOn the initiation of compensation as provided by Section 409.021, the insurance carrier shall pay temporary income benefits as provided by this subchapter.
Sec.i408D.052i[408.102].iiDURATION OF TEMPORARY INCOME
BENEFITS. (a) Temporary income benefits continue until the employee reaches
maximum medical improvement.
(b)iiThe commissioner [commission] by rule shall establish a presumption that
maximum medical improvement has been reached based on a lack of medical
improvement in the employee's condition.
Sec.i408D.053i[408.103].iiAMOUNT OF TEMPORARY INCOME
BENEFITS. (a) Subject to Sections 408.061 and 408.062, the amount of a temporary
income benefit is equal to:
(1)ii70 percent of the amount computed by subtracting the employee's weekly earnings after the injury from the employee's average weekly wage; or
(2)iifor the first 26 weeks, 75 percent of the amount computed by subtracting the employee's weekly earnings after the injury from the employee's average weekly wage if the employee earns less than $8.50 an hour.
(b)iiA temporary income benefit under Subsection (a)(2) may not exceed the employee's actual earnings for the previous year. It is presumed that the employee's actual earnings for the previous year are equal to:
2358 79th Legislature — Regular Session 71st Day
(1)iithe sum of the employee's wages as reported in the most recent four
quarterly wage reports to the Texas Workforce [Employment] Commission divided by
52;
(2)iithe employee's wages in the single quarter of the most recent four
quarters in which the employee's earnings were highest, divided by 13, if the
department [commission] finds that the employee's most recent four quarters'
earnings reported in the Texas Workforce [Employment] Commission wage reports
are not representative of the employee's usual earnings; or
(3)iithe amount the department [commission] determines from other credible
evidence to be the actual earnings for the previous year if the Texas Workforce
[Employment] Commission does not have a wage report reflecting at least one
quarter's earnings because the employee worked outside the state during the previous
year.
(c)iiA presumption under Subsection (b) may be rebutted by other credible evidence of the employee's actual earnings.
(d)iiThe Texas Workforce [Employment] Commission shall provide information
required under this section in the manner most efficient for transferring the
information.
(e)iiFor purposes of Subsection (a), if an employee is offered a bona fide position of employment that the employee is reasonably capable of performing, given the physical condition of the employee and the geographic accessibility of the position to the employee, the employee's weekly earnings after the injury are equal to the weekly wage for the position offered to the employee.
Sec.i408D.054i[408.104].iiMAXIMUM MEDICAL IMPROVEMENT AFTER
SPINAL SURGERY. (a) On application by either the employee or the insurance
carrier, the commissioner [commission] by order may extend the 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 408A.010 [408.026] and
commissioner [commission] rules, within 12 weeks before the expiration of the
104-week period. If an order is issued under this section, the order shall extend the
statutory period for maximum medical improvement to a date certain, based on
medical evidence presented to the department [commission].
(b)iiEither the employee or the insurance carrier may dispute an application for extension made under this section. A dispute under this subsection is subject to Chapter 410.
(c)iiThe commissioner [commission] shall adopt rules to implement this section,
including rules establishing procedures for requesting and disputing an extension.
Sec.i408D.055i[408.105].iiSALARY CONTINUATION IN LIEU OF
TEMPORARY INCOME BENEFITS. (a) In lieu of payment of temporary income
benefits under this subchapter, an employer may continue to pay the salary of an
employee who sustains a compensable injury under a contractual obligation between
the employer and employee, such as a collective bargaining agreement, written
agreement, or policy.
(b)iiSalary continuation may include wage supplementation if:
(1)iiemployer reimbursement is not sought from the carrier as provided by
Section 408D.107 [408.127]; and
Tuesday, May 17, 2005 SENATE JOURNAL 2359
(2)iithe supplementation does not affect the employee's eligibility for any future income benefits.
SUBCHAPTER C [G]. IMPAIRMENT INCOME BENEFITS
Sec.i408D.101i[408.121].iiIMPAIRMENT INCOME BENEFITS. (a) An
employee's entitlement to impairment income benefits begins on the day after the date
the employee reaches maximum medical improvement and ends on the earlier of:
(1)iithe date of expiration of a period computed at the rate of three weeks for each percentage point of impairment; or
(2)iithe date of the employee's death.
(b)iiThe insurance carrier shall begin to pay impairment income benefits not later than the fifth day after the date on which the insurance carrier receives the doctor's report certifying maximum medical improvement. Impairment income benefits shall be paid for a period based on the impairment rating, unless that rating is disputed under Subsection (c).
(c)iiIf the insurance carrier disputes the impairment rating used under Subsection (a), the carrier shall pay the employee impairment income benefits for a period based on the carrier's reasonable assessment of the correct rating.
Sec.i408D.102i[408.122].iiELIGIBILITY FOR IMPAIRMENT INCOME
BENEFITS; DESIGNATED DOCTOR. (a) A claimant may not recover impairment
income benefits unless evidence of impairment based on an objective clinical or
laboratory finding exists. If the finding of impairment is made by a doctor chosen by
the claimant and the finding is contested, a designated doctor or a doctor selected by
the insurance carrier must be able to confirm the objective clinical or laboratory
finding on which the finding of impairment is based.
(b)iiTo be eligible to serve as a designated doctor, a doctor must meet specific
qualifications, including training in the determination of impairment ratings. The
department [executive director] shall develop qualification standards and
administrative policies to implement this subsection, and the commissioner
[commission] may adopt rules as necessary. If medical benefits are provided through a
certified provider network, the designated doctor shall not be a health care practitioner
under the certified provider network. The designated doctor doing the review must be
trained and experienced with the treatment and procedures used by the doctor treating
the patient's medical condition, and the treatment and procedures performed must be
within the scope of practice of the designated doctor. A designated doctor's
credentials must be appropriate for the issue in question and the injured employee's
medical condition.
(c)iiThe report of the designated doctor has presumptive weight, and the
department [commission] shall base its determination of whether the employee has
reached maximum medical improvement on the report unless the great weight of the
other medical evidence is to the contrary.
Sec.i408D.103i[408.123].iiCERTIFICATION OF MAXIMUM MEDICAL
IMPROVEMENT; EVALUATION OF IMPAIRMENT RATING. (a) After an
employee has been certified by a doctor as having reached maximum medical
improvement, the certifying doctor shall evaluate the condition of the employee and
assign an impairment rating using the impairment rating guidelines described by
Section 408D.104 [408.124]. If the certification and evaluation are performed by a
2360 79th Legislature — Regular Session 71st Day
(b)iiA certifying doctor shall issue a written report certifying that maximum
medical improvement has been reached, stating the employee's impairment rating, and
providing any other information required by the department [commission] to:
(1)iithe department [commission];
(2)iithe employee; and
(3)iithe insurance carrier.
(c)iiIf an employee is not certified as having reached maximum medical
improvement before the expiration of 102 weeks after the date income benefits begin
to accrue, the department [commission] shall notify the treating doctor of the
requirements of this subchapter.
(d)iiExcept as otherwise provided by this section, an employee's first valid certification of maximum medical improvement and first valid assignment of an impairment rating is final if the certification or assignment is not disputed before the 91st day after the date written notification of the certification or assignment is provided to the employee and the carrier by verifiable means.
(e)iiAn employee's first certification of maximum medical improvement or assignment of an impairment rating may be disputed after the period described by Subsection (d) if:
(1)iicompelling medical evidence exists of:
(A)iia significant error by the certifying doctor in applying the appropriate American Medical Association guidelines or in calculating the impairment rating;
(B)iia clearly mistaken diagnosis or a previously undiagnosed medical condition; or
(C)iiimproper or inadequate treatment of the injury before the date of the certification or assignment that would render the certification or assignment invalid; or
(2)iiother compelling circumstances exist as prescribed by commissioner
[commission] rule.
(f)iiIf an employee has not been certified as having reached maximum medical
improvement before the expiration of 104 weeks after the date income benefits begin
to accrue or the expiration date of any extension of benefits under Section 408D.054
[408.104], the impairment rating assigned after the expiration of either of those
periods is final if the impairment rating is not disputed before the 91st day after the
date written notification of the certification or assignment is provided to the employee
and the carrier by verifiable means. A certification or assignment may be disputed
after the 90th day only as provided by Subsection (e).
(g)iiIf an employee's disputed certification of maximum medical improvement or assignment of impairment rating is finally modified, overturned, or withdrawn, the first certification or assignment made after the date of the modification, overturning, or withdrawal becomes final if the certification or assignment is not disputed before
Tuesday, May 17, 2005 SENATE JOURNAL 2361
Sec.i408D.104i[408.124].iiIMPAIRMENT RATING GUIDELINES. (a) An
award of an impairment income benefit, whether by the department [commission] or a
court, must be based [shall be made] on an impairment rating determined using the
impairment rating guidelines described by [in] this section.
(b)iiFor determining the existence and degree of an employee's impairment, the
department [commission] shall use "Guides to the Evaluation of Permanent
Impairment," third edition, second printing, dated February 1989, published by the
American Medical Association.
(c)iiNotwithstanding Subsection (b), the commissioner [commission] by rule
may adopt the fourth edition of the "Guides to the Evaluation of Permanent
Impairment," published by the American Medical Association, or a subsequent edition
of those guides, for determining the existence and degree of an employee's
impairment.
Sec.i408D.105i[408.125].iiDISPUTE AS TO IMPAIRMENT RATING;
ADMINISTRATIVE VIOLATION. (a) If an impairment rating is disputed, the
department [commission] shall direct the employee to the next available doctor on the
department's [commission's] list of designated doctors, as provided by Section
408.0041.
(b)iiThe designated doctor shall report in writing to the department
[commission].
(c)iiThe report of the designated doctor shall have presumptive weight, and the
department [commission] shall base the impairment rating on that report unless the
great weight of the other medical evidence is to the contrary. If the great weight of the
medical evidence contradicts the impairment rating contained in the report of the
designated doctor chosen by the department [commission], the department
[commission] shall adopt the impairment rating of one of the other doctors.
(d)iiTo avoid undue influence on a person selected as a designated doctor under
this section, only the injured employee or an appropriate member of the staff of the
department [commission] may communicate with the designated doctor about the case
regarding the injured employee's medical condition or history before the examination
of the injured employee by the designated doctor. After that examination is
completed, communication with the designated doctor regarding the injured
employee's medical condition or history may be made only through appropriate
department [commission] staff members. The designated doctor may initiate
communication with any doctor who has previously treated or examined the injured
employee for the work-related injury.
(e)iiNotwithstanding Subsection (d), the treating doctor and the insurance carrier are both responsible for sending to the designated doctor all the injured employee's medical records that are in their possession and that relate to the issue to be evaluated by the designated doctor. The treating doctor and the insurance carrier may send the records without a signed release from the employee. The designated doctor is authorized to receive the employee's confidential medical records to assist in the
2362 79th Legislature — Regular Session 71st Day
(f)iiA violation of Subsection (d) is a Class C administrative violation.
Sec.i408D.106i[408.126].iiAMOUNT OF IMPAIRMENT INCOME
BENEFITS. Subject to Sections 408.061 and 408.062, an impairment income benefit
is equal to 70 percent of the employee's average weekly wage.
Sec.i408D.107i[408.127].iiREDUCTION OF IMPAIRMENT INCOME
BENEFITS. (a) An insurance carrier shall reduce impairment income benefits to an
employee by an amount equal to employer payments made under Section 408.003 that
are not reimbursed or reimbursable under that section.
(b)iiThe insurance carrier shall remit the amount of a reduction under this section to the employer who made the payments.
(c)iiThe commissioner [commission] shall adopt rules and forms to ensure the
full reporting and the accuracy of reductions and reimbursements made under this
section.
Sec.i408D.108i[408.128].iiCOMMUTATION OF IMPAIRMENT INCOME
BENEFITS. (a) An employee may elect to commute the remainder of the impairment
income benefits to which the employee is entitled if the employee has returned to
work for at least three months, earning at least 80 percent of the employee's average
weekly wage.
(b)iiAn employee who elects to commute impairment income benefits is not entitled to additional income benefits for the compensable injury.
Sec.i408D.109i[408.129].iiACCELERATION OF IMPAIRMENT INCOME
BENEFITS. (a) On approval by the commissioner [commission] of a written request
received from an employee, an insurance 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)iiThe commissioner [commission] shall approve the request and order the
acceleration of the benefits if the commissioner [commission] determines that the
acceleration is:
(1)iirequired to relieve hardship; and
(2)iiin the overall best interest of the employee.
(c)iiThe duration of the impairment income benefits to which the employee is entitled shall be reduced to offset the increased payments caused by the acceleration taking into consideration the discount for present payment computed at the rate provided under Section 401.023.
(d)iiThe commissioner [commission] may prescribe forms necessary to
implement this section.
SUBCHAPTER D [H]. SUPPLEMENTAL INCOME BENEFITS
Sec.i408D.151i[408.141].iiAWARD OF SUPPLEMENTAL INCOME
BENEFITS. An award of a supplemental income benefit, whether by the department
[commission] or a court, shall be made in accordance with this subchapter.
Tuesday, May 17, 2005 SENATE JOURNAL 2363
Sec.i408D.152i[408.142].iiSUPPLEMENTAL INCOME BENEFITS. (a) An
employee is entitled to supplemental income benefits if on the expiration of the
impairment income benefit period computed under Section 408D.101(a)(1)
[408.121(a)(1)] the employee:
(1)iihas an impairment rating of 15 percent or more as determined by this subtitle from the compensable injury;
(2)iihas not returned to work or has returned to work earning less than 80 percent of the employee's average weekly wage as a direct result of the employee's impairment;
(3)iihas not elected to commute a portion of the impairment income benefit
under Section 408D.108 [408.128]; and
(4)iihas complied with the requirements adopted under Section 408D.153
[attempted in good faith to obtain employment commensurate with the employee's
ability to work].
(b)iiIf an employee is not entitled to supplemental income benefits at the time of payment of the final impairment income benefit because the employee is earning at least 80 percent of the employee's average weekly wage, the employee may become entitled to supplemental income benefits at any time within one year after the date the impairment income benefit period ends if:
(1)iithe employee earns wages for at least 90 days that are less than 80 percent of the employee's average weekly wage;
(2)iithe employee meets the requirements of Subsections (a)(1), (3), and (4); and
(3)iithe decrease in earnings is a direct result of the employee's impairment from the compensable injury.
Sec.i408D.153.iiWORK SEARCH COMPLIANCE STANDARDS. (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. To be eligible to receive supplemental income benefits under this chapter, a recipient must provide evidence satisfactory to the department of:
(1)iiactive participation in a vocational rehabilitation program conducted by the Department of Assistive and Rehabilitative Services or a private vocational rehabilitation provider;
(2)iiactive participation in work search efforts conducted through the Texas Workforce Commission; or
(3)iiactive work search efforts documented by job applications submitted by the recipient.
(b)iiIn adopting rules under this section, the commissioner shall:
(1)iiestablish the level of activity that a recipient should have with the Texas Workforce Commission and the Department of Assistive and Rehabilitative Services;
(2)iidefine the number of job applications required to be submitted by a recipient to satisfy the work search requirements; and
(3)iiconsider factors affecting the availability and suitability of employment, including recognition of access to employment in rural areas, economic conditions, and other appropriate employment availability factors.
2364 79th Legislature — Regular Session 71st Day
(c)iiThe commissioner may consult with the Texas Workforce Commission, the Department of Assistive and Rehabilitative Services, and other appropriate entities in adopting rules under this section.
Sec.i408D.154.iiRETURN-TO-WORK GOALS AND ASSISTANCE. (a) The department shall assist recipients of income benefits to return to the workforce. The department shall develop improved data sharing, within the standards of federal privacy requirements, with all appropriate state agencies and workforce programs to inform the department of changes needed to assist income benefit recipients to successfully reenter the workforce.
(b)iiThe department shall train staff dealing with income benefits to respond to questions and assist injured employees in their effort to return to the workforce. If the department determines that an injured employee is unable to ever return to the workforce, the department shall inform the employee of possible eligibility for other forms of benefits, such as social security disability income benefits.
(c)iiAs necessary to implement the requirements of this section, the department shall:
(1)iiattempt to remove any barriers to successful employment that are identified at the department, the Texas Workforce Commission, the Department of Assistive and Rehabilitative Services, and private vocational rehabilitation programs;
(2)iiensure that data is tracked among the department, the Texas Workforce Commission, the Department of Assistive and Rehabilitative Services, and insurance carriers, including outcome data;
(3)iiestablish a mechanism to refer income benefit recipients to the Texas Workforce Commission and local workforce development centers for employment opportunities; and
(4)iidevelop a mechanism to promote employment success that includes post-referral contacts by the department with income benefit recipients.
Sec.i408D.155i[408.143].iiEMPLOYEE STATEMENT. (a) After the
department's [commission's] initial determination of supplemental income benefits,
the employee must file a statement with the insurance carrier stating:
(1)iithat 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)iithe amount of wages the employee earned in the filing period provided by Subsection (b); and
(3)iithat the employee has complied with the requirements adopted under
Section 408D.153 [in good faith sought employment commensurate with the
employee's ability to work].
(b)iiThe statement required under this section must be filed quarterly on a form
and in the manner provided by the department [commission]. The department
[commission] may modify the filing period as appropriate to an individual case.
(c)iiFailure to file a statement under this section relieves the insurance carrier of liability for supplemental income benefits for the period during which a statement is not filed.
Sec.i408D.156i[408.144].iiCOMPUTATION OF SUPPLEMENTAL INCOME
BENEFITS. (a) Supplemental income benefits are calculated quarterly and paid
monthly.
Tuesday, May 17, 2005 SENATE JOURNAL 2365
(b)iiSubject to Section 408.061, the amount of a supplemental income benefit for
a week is equal to 80 percent of the amount computed by subtracting the weekly wage
the employee earned during the reporting period provided by Section 408D.155(b)
[408.143(b)] from 80 percent of the employee's average weekly wage determined
under Section 408.041, 408.042, 408.043, [or] 408.044, 408.0445, or 408.0446.
(c)iiFor the purposes of this subchapter, if an employee is offered a bona fide position of employment that the employee is capable of performing, given the physical condition of the employee and the geographic accessibility of the position to the employee, the employee's weekly wages are considered to be equal to the weekly wages for the position offered to the employee.
Sec.i408D.157i[408.145].iiPAYMENT OF SUPPLEMENTAL INCOME
BENEFITS. An insurance carrier shall pay supplemental income benefits beginning
not later than the seventh day after the expiration date of the employee's impairment
income benefit period and shall continue to pay the benefits in a timely manner.
Sec.i408D.158i[408.146].iiTERMINATION OF SUPPLEMENTAL INCOME
BENEFITS; REINITIATION. (a) If an employee earns wages that are at least 80
percent of the employee's average weekly wage for at least 90 days during a time that
the employee receives supplemental income benefits, the employee ceases to be
entitled to supplemental income benefits for the filing period.
(b)iiSupplemental income benefits terminated under this section shall be reinitiated when the employee:
(1)iisatisfies the conditions of Section 408D.152(b) [408.142(b)]; and
(2)iifiles the statement required under Section 408D.155 [408.143].
(c)iiNotwithstanding any other provision of this section, an employee who is not entitled to supplemental income benefits for 12 consecutive months ceases to be entitled to any additional income benefits for the compensable injury.
Sec.i408D.159i[408.147].iiCONTEST OF SUPPLEMENTAL INCOME
BENEFITS BY INSURANCE CARRIER; ATTORNEY'S FEES. (a) An insurance
carrier may request a contested case hearing [benefit review conference] to contest an
employee's entitlement to supplemental income benefits or the amount of
supplemental income benefits.
(b)iiIf an insurance carrier fails to [make a] request [for] a contested case hearing
[benefit review conference] within 10 days after the date of the expiration of the
impairment income benefit period or within 10 days after receipt of the employee's
statement, the insurance carrier waives the right to contest entitlement to supplemental
income benefits and the amount of supplemental income benefits for that period of
supplemental income benefits.
(c)iiIf an insurance carrier disputes a department [commission] determination
that an employee is entitled to supplemental income benefits or 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 insurance carrier's 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 subsection are not subject to Sections
408.221(b), (f), and (i).
2366 79th Legislature — Regular Session 71st Day
Sec.i408D.160i[408.148].iiEMPLOYEE DISCHARGE AFTER
TERMINATION. The department [commission] may reinstate supplemental income
benefits to an employee who is discharged within 12 months of the date of losing
entitlement to supplemental income benefits under Section 408D.158(c) [408.146(c)]
if the department [commission] finds that the employee was discharged at that time
with the intent to deprive the employee of supplemental income benefits.
Sec.i408D.161i[408.149].iiSTATUS REVIEW; HEARING [BENEFIT REVIEW
CONFERENCE]. (a) Not more than once in each period of 12 calendar months, an
employee and an insurance carrier each may request the department [commission] to
review the status of the employee and determine whether the employee's
unemployment or underemployment is a direct result of impairment from the
compensable injury. The department shall conduct the review not later than the 10th
day after the date on which the department receives the request.
(b)iiEither party may request a contested case hearing [benefit review
conference] to contest a determination of the department [commission] at any time,
subject only to the limits placed on the insurance carrier by Section 408D.159
[408.147].
Sec.i408D.162i[408.150].iiVOCATIONAL REHABILITATION. (a) The
department [commission] shall refer an employee to the Department of Assistive and
Rehabilitative Services [Texas Rehabilitation Commission] with a recommendation
for appropriate services if the department [commission] determines that an employee
[entitled to supplemental income benefits] could be materially assisted by vocational
rehabilitation or training in returning to employment or returning to employment more
nearly approximating the employee's preinjury employment. The department
[commission] shall also notify insurance carriers of the need for vocational
rehabilitation or training services. The insurance carrier may provide services through
a private provider of vocational rehabilitation services under Section 409.012.
(b)iiAn employee who refuses services or refuses to cooperate with services
provided under this section by the Department of Assistive and Rehabilitative
Services [Texas Rehabilitation Commission] or a private provider loses entitlement to
supplemental income benefits.
Sec.i408D.163i[408.151].iiMEDICAL EXAMINATIONS FOR
SUPPLEMENTAL INCOME BENEFITS. (a) On or after the second anniversary of
the date the department [commission] makes the initial award of supplemental income
benefits, an insurance carrier may not 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.
(b)iiIf a dispute exists as to whether the employee's medical condition has
improved sufficiently to allow the employee to return to work, the department
[commission] shall direct the employee to be examined by a designated doctor chosen
by the department [commission]. The designated doctor shall report to the department
[commission]. The report of the designated doctor has presumptive weight, and the
Tuesday, May 17, 2005 SENATE JOURNAL 2367
(c)iiThe department [commission] may require an employee to whom Subsection
(a) applies to submit to a medical examination under Section 408A.002 [408.004]
only to determine whether the employee's medical condition is a direct result of
impairment from a compensable injury.
SUBCHAPTER E [I]. LIFETIME INCOME BENEFITS
Sec.i408D.201i[408.161].iiLIFETIME INCOME BENEFITS. (a) Lifetime
income benefits are paid until the death of the employee for:
(1)iitotal and permanent loss of sight in both eyes;
(2)iiloss of both feet at or above the ankle;
(3)iiloss of both hands at or above the wrist;
(4)iiloss of one foot at or above the ankle and the loss of one hand at or above the wrist;
(5)iian injury to the spine that results in permanent and complete paralysis of both arms, both legs, or one arm and one leg;
(6)iia physically traumatic injury to the brain resulting in an incurable insanity or imbecility; or
(7)iithird degree burns that cover at least 40 percent of the body and require grafting, or third degree burns covering the majority of either both hands or one hand and the face.
(b)iiFor purposes of Subsection (a), the total and permanent loss of use of a body part is the loss of that body part.
(c)iiSubject to Section 408.061, the amount of lifetime income benefits is equal to 75 percent of the employee's average weekly wage. Benefits being paid shall be increased at a rate of three percent a year notwithstanding Section 408.061.
(d)iiAn insurance carrier may pay lifetime income benefits through an annuity if
the annuity agreement meets the terms and conditions for annuity agreements adopted
by the commissioner [commission] by rule. The establishment of an annuity under
this subsection does not relieve the insurance carrier of the liability under this title for
ensuring that the lifetime income benefits are paid.
Sec.i408D.202i[408.162].iiSUBSEQUENT INJURY FUND BENEFITS. (a) If a
subsequent compensable injury, with the effects of a previous injury, results in a
condition for which the injured employee is entitled to lifetime income benefits, the
insurance carrier is liable for the payment of benefits for the subsequent injury only to
the extent that the subsequent injury would have entitled the employee to benefits had
the previous injury not existed.
(b)iiThe subsequent injury fund shall compensate the employee for the remainder of the lifetime income benefits to which the employee is entitled.
SECTIONi1.252.iiSubchapter J, Chapter 408, Labor Code, is redesignated as Chapter 408E, Labor Code, and amended to read as follows:
2368 79th Legislature — Regular Session 71st Day
CHAPTERi408E.iiWORKERS' COMPENSATION BENEFITS:
[SUBCHAPTER J.] DEATH AND BURIAL BENEFITS
Sec.i408E.001i[408.181].iiDEATH BENEFITS. (a) An insurance carrier shall
pay death benefits to the legal beneficiary if a compensable injury to the employee
results in death.
(b)iiSubject to Section 408.061, the amount of a death benefit is equal to 75 percent of the employee's average weekly wage.
(c)iiThe commissioner [commission] by rule shall establish requirements for
agreements under which death benefits may be paid monthly. Death benefits may be
paid monthly only:
(1)iion the request of the legal beneficiary and the agreement of the legal beneficiary and the insurance carrier; and
(2)iiin compliance with the requirements adopted by the commissioner
[commission].
(d)iiAn insurance carrier may pay death benefits through an annuity if the
annuity agreement meets the terms and conditions for annuity agreements adopted by
the commissioner [commission] by rule. The establishment of an annuity under this
subsection does not relieve the insurance carrier of the liability under this title for
ensuring that the death benefits are paid.
Sec.i408E.002i[408.182].iiDISTRIBUTION OF DEATH BENEFITS. (a) In this
section:
(1)ii"Eligible child" means a child of a deceased employee if the child:
(A)iiis a minor;
(B)iiis enrolled as a full-time student in an accredited educational institution and is less than 25 years of age; or
(C)iiis a dependent of the deceased employee at the time of the employee's death.
(2)ii"Eligible grandchild" means a grandchild of a deceased employee who is a dependent of the deceased employee and whose parent is not an eligible child.
(3)ii"Eligible spouse" means the surviving spouse of a deceased employee unless the spouse abandoned the employee for longer than the year preceding the death without good cause, as determined by the department.
(b)iiIf there is an eligible child or grandchild and an eligible spouse, half of the death benefits shall be paid to the eligible spouse and half shall be paid in equal shares to the eligible children. If an eligible child has predeceased the employee, death benefits that would have been paid to that child shall be paid in equal shares per stirpes to the children of the deceased child.
(c)i[(b)]iiIf there is an eligible spouse and no eligible child or grandchild, all the
death benefits shall be paid to the eligible spouse.
(d)i[(c)]iiIf there is an eligible child or grandchild and no eligible spouse, the
death benefits shall be paid to the eligible children or grandchildren.
(e)i[(d)]iiIf there is no eligible spouse, no eligible child, and no eligible
grandchild, the death benefits shall be paid in equal shares to surviving dependents of
the deceased employee who are parents, stepparents, siblings, or grandparents of the
deceased.
Tuesday, May 17, 2005 SENATE JOURNAL 2369
(f)i[(e)]iiIf an employee is not survived by legal beneficiaries, the death benefits
shall be paid to the subsequent injury fund under Section 403.007.
[(f)iiIn this section:
[(1)ii"Eligible child" means a child of a deceased employee if the child is:
[(A)iia minor;
[(B)iienrolled as a full-time student in an accredited educational
institution and is less than 25 years of age; or
[(C)iia dependent of the deceased employee at the time of the
employee's death.
[(2)ii"Eligible grandchild" means a grandchild of a deceased employee who
is a dependent of the deceased employee and whose parent is not an eligible child.
[(3)ii"Eligible spouse" means the surviving spouse of a deceased employee
unless the spouse abandoned the employee for longer than the year immediately
preceding the death without good cause, as determined by the commission.]
Sec.i408E.003i[408.183].iiDURATION OF DEATH BENEFITS. (a)
Entitlement to death benefits begins on the day after the date of an employee's death.
(b)iiAn eligible spouse is entitled to receive death benefits for life or until
remarriage. On remarriage, the eligible spouse is entitled to receive 104 weeks of
death benefits, commuted as provided by commissioner [commission] rule.
(c)iiA child who is eligible for death benefits because the child is a minor on the date of the employee's death is entitled to receive benefits until the child attains the age of 18.
(d)iiA child eligible for death benefits under Subsection (c) who at age 18 is enrolled as a full-time student in an accredited educational institution or a child who is eligible for death benefits because on the date of the employee's death the child is enrolled as a full-time student in an accredited educational institution is entitled to receive or to continue to receive, as appropriate, benefits until the earliest of:
(1)iithe date the child ceases, for a second consecutive semester, to be enrolled as a full-time student in an accredited educational institution;
(2)iithe date the child attains the age of 25; or
(3)iithe date the child dies.
(e)iiA child who is eligible for death benefits because the child is a dependent of the deceased employee on the date of the employee's death is entitled to receive benefits until the earlier of:
(1)iithe date the child dies; or
(2)iiif the child is dependent:
(A)iibecause the child is an individual with a physical or mental disability, the date the child no longer has the disability; or
(B)iibecause of a reason other than a physical or mental disability, the date of the expiration of 364 weeks of death benefit payments.
(f)iiAn eligible grandchild is entitled to receive death benefits until the earlier of:
(1)iithe date the grandchild dies; or
(2)iiif the grandchild is:
(A)iia minor at the time of the employee's death, the date the grandchild ceases to be a minor; or
2370 79th Legislature — Regular Session 71st Day
(B)iinot a minor at the time of the employee's death, the date of the expiration of 364 weeks of death benefit payments.
(g)iiAny other person entitled to death benefits is entitled to receive death benefits until the earlier of:
(1)iithe date the person dies; or
(2)iithe date of the expiration of 364 weeks of death benefit payments.
(h)iiSection 401.011(16) does not apply to the use of the term "disability" in this section.
Sec.i408E.004i[408.184].iiREDISTRIBUTION OF DEATH BENEFITS. (a) If a
legal beneficiary dies or otherwise becomes ineligible for death benefits, benefits shall
be redistributed to the remaining legal beneficiaries as provided by Sections 408E.002
[408.182] and 408E.003 [408.183].
(b)iiIf a spouse ceases to be eligible because of remarriage, the benefits payable
to the remaining legal beneficiaries remain constant for 104 weeks. After the 104th
week, the spouse's share of benefits shall be redistributed as provided by Sections
408E.002 [408.182] and 408E.003 [408.183].
(c)iiIf all legal beneficiaries, other than the subsequent injury fund, cease to be eligible and the insurance carrier has not made 364 weeks of full death benefit payments, including the remarriage payment, the insurance carrier shall pay to the subsequent injury fund an amount computed by subtracting the total amount paid from the amount that would be paid for 364 weeks of death benefits.
Sec.i408E.005i[408.185].iiEFFECT OF BENEFICIARY DISPUTE;
ATTORNEY'S FEES. On settlement of a case in which the insurance carrier admits
liability for death benefits but a dispute exists as to the proper beneficiary or
beneficiaries, the settlement shall be paid in periodic payments as provided by law,
with a reasonable attorney's fee not to exceed 25 percent of the settlement, paid
periodically, and based on time and expenses.
Sec.i408E.006i[408.186].iiBURIAL BENEFITS. (a) If the death of an employee
results from a compensable injury, the insurance carrier shall pay to the person who
incurred liability for the costs of burial the lesser of:
(1)iithe actual costs incurred for reasonable burial expenses; or
(2)ii$6,000.
(b)iiIf the employee died away from the employee's usual place of employment, the insurance carrier shall pay the reasonable cost of transporting the body, not to exceed the cost of transporting the body to the employee's usual place of employment.
Sec.i408E.007i[408.187].iiAUTOPSY. (a) If in a claim for death benefits based
on an occupational disease an autopsy is necessary to determine the cause of death,
the department [commission] may, after opportunity for hearing, order the legal
beneficiaries of a deceased employee to permit an autopsy.
(b)iiA legal beneficiary is entitled to have a representative present at an autopsy ordered under this section.
(c)iiThe department [commission] shall require the insurance carrier to pay the
costs of a procedure ordered under this section.
PART 12. AMENDMENTS TO CHAPTER 409, LABOR CODE
SECTIONi1.301.iiSection 409.002, Labor Code, is amended to read as follows:
Tuesday, May 17, 2005 SENATE JOURNAL 2371
Sec.i409.002.iiFAILURE TO FILE NOTICE OF INJURY. Failure to notify an employer as required by Section 409.001(a) relieves the employer and the employer's insurance carrier of liability under this subtitle unless:
(1)iithe employer, a person eligible to receive notice under Section 409.001(b), or the employer's insurance carrier has actual knowledge of the employee's injury;
(2)iithe department [commission] determines that good cause exists for
failure to provide notice in a timely manner; or
(3)iithe employer or the employer's insurance carrier does not contest the claim.
SECTIONi1.302.iiSection 409.003, Labor Code, is amended to read as follows:
Sec.i409.003.iiCLAIM FOR COMPENSATION. An employee or a person
acting on the employee's behalf shall file with the department [commission] a claim
for compensation for an injury not later than one year after the date on which:
(1)iithe injury occurred; or
(2)iiif the injury is an occupational disease, the employee knew or should have known that the disease was related to the employee's employment.
SECTIONi1.303.iiSection 409.004, Labor Code, is amended to read as follows:
Sec.i409.004.iiEFFECT OF FAILURE TO FILE CLAIM FOR
COMPENSATION. Failure to file a claim for compensation with the department
[commission] as required under Section 409.003 relieves the employer and the
employer's insurance carrier of liability under this subtitle unless:
(1)iigood cause exists for failure to file a claim in a timely manner; or
(2)iithe employer or the employer's insurance carrier does not contest the claim.
SECTIONi1.304.iiSections 409.005(d)-(f) and (h)-(k), Labor Code, are amended to read as follows:
(d)iiThe insurance carrier shall file the report of the injury on behalf of the
policyholder. Except as provided by Subsection (e), the insurance carrier must
electronically file the report with the department [commission] not later than the
seventh day after the date on which the carrier receives the report from the employer.
(e)iiThe commissioner [executive director] may waive the electronic filing
requirement under Subsection (d) and allow an insurance carrier to mail or deliver the
report to the department [commission] not later than the seventh day after the date on
which the carrier receives the report from the employer.
(f)iiA report required under this section may not be considered to be an
admission by or evidence against an employer or an insurance carrier in a proceeding
before the department [commission] or a court in which the facts set out in the report
are contradicted by the employer or insurance carrier.
(h)iiThe commissioner [commission] may adopt rules relating to:
(1)iithe information that must be contained in a report required under this section, including the summary of rights and responsibilities required under Subsection (g); and
(2)iithe development and implementation of an electronic filing system for injury reports under this section.
2372 79th Legislature — Regular Session 71st Day
(i)iiAn employer and insurance carrier shall file subsequent reports as required
by commissioner [commission] rule.
(j)iiThe employer shall, on the written request of the employee, a doctor, the
insurance carrier, or the department [commission], notify the employee, the
employee's treating doctor if known to the employer, and the insurance carrier of the
existence or absence of opportunities for modified duty or a modified duty
return-to-work program available through the employer. If those opportunities or that
program exists, the employer shall identify the employer's contact person and provide
other information to assist the doctor, the employee, and the insurance carrier to assess
modified duty or return-to-work options.
(k)iiThis section does not prohibit the commissioner [commission] from
imposing requirements relating to return-to-work under other authority granted to the
department [commission] in this subtitle.
SECTIONi1.305.iiSections 409.006(b) and (c), Labor Code, are amended to read as follows:
(b)iiThe record shall be available to the department [commission] at reasonable
times and under conditions prescribed by the commissioner [commission].
(c)iiThe commissioner [commission] may adopt rules relating to the information
that must be contained in an employer record under this section.
SECTIONi1.306.iiSection 409.007(a), Labor Code, is amended to read as follows:
(a)iiA person must file a claim for death benefits with the department
[commission] not later than the first anniversary of the date of the employee's death.
SECTIONi1.307.iiSection 409.009, Labor Code, is amended to read as follows:
Sec.i409.009.iiSUBCLAIMS. A person may file a written claim with the
department [commission] as a subclaimant if the person has:
(1)iiprovided compensation, including health care provided by a health care insurer, directly or indirectly, to or for an employee or legal beneficiary; and
(2)iisought and been refused reimbursement from the insurance carrier.
SECTIONi1.308.iiSection 409.010, Labor Code, is amended to read as follows:
Sec.i409.010.iiINFORMATION PROVIDED TO EMPLOYEE OR LEGAL
BENEFICIARY. Immediately on receiving notice of an injury or death from any
person, the department [commission] shall mail to the employee or legal beneficiary a
clear and concise description of:
(1)iithe services provided by:
(A)iithe department; and
(B) the office of injured employee counsel [commission], including the
services of the ombudsman program;
(2)iithe department's [commission's] procedures under this subtitle; and
(3)iithe person's rights and responsibilities under this subtitle.
SECTIONi1.309.iiSections 409.011(a) and (c), Labor Code, are amended to read as follows:
(a)iiImmediately on receiving notice of an injury or death from any person, the
department [commission] shall mail to the employer a description of:
(1)iithe services provided by the department and the office of injured
employee counsel [commission];
Tuesday, May 17, 2005 SENATE JOURNAL 2373
(2)iithe department's [commission's] procedures under this subtitle; and
(3)iithe employer's rights and responsibilities under this subtitle.
(c)iiThe department [commission] is not required to provide the information to
an employer more than once during a calendar year.
SECTIONi1.310.iiSection 409.012, Labor Code, is amended to read as follows:
Sec.i409.012.iiSKILLED CASE MANAGEMENT; VOCATIONAL
REHABILITATION [INFORMATION]. (a) The department shall require an
insurance carrier to evaluate a compensable injury in which the injured employee
sustains an injury that could possibly result in lost time from employment as early as
is practicable to determine if skilled case management is necessary for the injured
employee's case and, if so, to provide skilled case management, in accordance with
commissioner rules.
(b)iiThe department [commission] shall analyze each report of injury received
from an employer under this chapter to determine whether the injured employee
would be assisted by vocational rehabilitation. [(b)] If the department [commission]
determines that an injured employee would be assisted by vocational rehabilitation,
the department [commission] shall notify:
(1)iithe injured employee in writing of the services and facilities available
through the Department of Assistive and Rehabilitative Services [Texas Rehabilitation
Commission] and private providers of vocational rehabilitation; and
(2)ii[. The commission shall notify] the Department of Assistive and
Rehabilitative Services [Texas Rehabilitation Commission] and the affected insurance
carrier that the injured employee has been identified as one who could be assisted by
vocational rehabilitation.
(c)iiThe department [commission] shall cooperate with the office of injured
employee counsel, the Department of Assistive and Rehabilitative Services, [Texas
Rehabilitation Commission] and private providers of vocational rehabilitation in the
provision of services and facilities to employees by the Department of Assistive and
Rehabilitative Services [Texas Rehabilitation Commission].
(d)iiA private provider of vocational rehabilitation services may register with the
department [commission].
(e)iiThe commissioner [commission] by rule may require that a private provider
of vocational rehabilitation services maintain certain credentials and qualifications in
order to provide services in connection with a workers' compensation insurance
claim.
SECTIONi1.311.iiSection 409.013, Labor Code, is amended to read as follows:
Sec.i409.013.iiPLAIN LANGUAGE INFORMATION; NOTIFICATION OF
INJURED EMPLOYEE [WORKER]. (a) The department [commission] shall
develop information for public dissemination about the benefit process and the
compensation procedures established under this chapter. The information must be
written in plain language and must be available in English and Spanish.
(b)iiOn receipt of a report under Section 409.005, the department [commission]
shall contact the affected employee by mail or by telephone and shall provide the
information required under Subsection (a) to that employee, together with any other
2374 79th Legislature — Regular Session 71st Day
SECTIONi1.312.iiSection 409.021, Labor Code, is amended to read as follows:
Sec.i409.021.iiINITIATION OF BENEFITS; DUTIES OF INSURANCE
CARRIER [CARRIER'S REFUSAL]; ADMINISTRATIVE VIOLATION. (a) An
insurance carrier shall initiate compensation under this subtitle promptly. Not later
than the 15th day after the date on which an insurance carrier receives written notice
of an injury, the insurance carrier shall:
(1)iibegin the payment of benefits as required by this subtitle; or
(2)iinotify the department [commission] and the employee in writing of its
refusal to pay and advise the employee of:
(A)iithe right to request a contested case hearing [benefit review
conference]; and
(B)iithe means to obtain additional information from the department
[commission].
(b)i[(a-1)]iiAn insurance carrier that fails to comply with Subsection (a) does not
waive the carrier's right to contest the compensability of the injury as provided by
Subsection (e) [(c)] but commits an administrative violation subject to Subsection (g)
[(e)].
(c)i[(a-2)]iiAn insurance carrier is not required to comply with Subsection (a) if
the insurance carrier has accepted the claim as a compensable injury and income or
death benefits have not yet accrued but will be paid by the insurance carrier when the
benefits accrue and are due.
(d)i[(b)]iiAn insurance carrier shall notify the department [commission] in
writing of the initiation of income or death benefit payments in the manner prescribed
by commissioner [commission] rules.
(e)i[(c)]iiIf an insurance carrier does not contest the compensability of an injury
on or before the 60th day after the date on which the insurance carrier is notified of
the injury, the insurance carrier waives its right to contest compensability. The
initiation of payments by an insurance carrier does not affect the right of the insurance
carrier to continue to investigate or deny the compensability of an injury during the
60-day period.
(f)i[(d)]iiAn insurance carrier may reopen the issue of the compensability of an
injury if there is a finding of evidence that could not reasonably have been discovered
earlier.
(g)i[(e)]iiAn insurance carrier commits a violation if the insurance carrier does
not initiate payments or file a notice of refusal as required by this section. A violation
under this subsection shall be assessed at $500 if the carrier initiates compensation or
files a notice of refusal within five working days of the date required by Subsection
(a), $1,500 if the carrier initiates compensation or files a notice of refusal more than
five and less than 16 working days of the date required by Subsection (a), $2,500 if
the carrier initiates compensation or files a notice of refusal more than 15 and less
than 31 working days of the date required by Subsection (a), or $5,000 if the carrier
initiates compensation or files a notice of refusal more than 30 days after the date
required by Subsection (a). The administrative penalties are not cumulative.
Tuesday, May 17, 2005 SENATE JOURNAL 2375
(h)i[(f)]iiFor purposes of this section, "written notice" to a certified self-insurer
occurs only on written notice to the qualified claims servicing contractor designated
by the certified self-insurer under Section 407.061(c).
(i)i[(f)]iiFor purposes of this section:
(1)iia certified self-insurer receives notice on the date the qualified claims servicing contractor designated by the certified self-insurer under Section 407.061(c) receives notice; and
(2)iia political subdivision that self-insures under Section 504.011, either individually or through an interlocal agreement with other political subdivisions, receives notice on the date the intergovernmental risk pool or other entity responsible for administering the claim for the political subdivision receives notice.
(j)iiEach insurance carrier shall establish a single point of contact in the carrier's office for an injured employee for whom the carrier receives a notice of injury.
SECTIONi1.313.iiSection 409.023(a), Labor Code, is amended to read as follows:
(a)iiAn insurance carrier shall continue to pay benefits promptly as and when the
benefits accrue without a final decision, order, or other action of the commissioner
[commission], except as otherwise provided.
SECTIONi1.314.iiSection 409.0231(b), Labor Code, is amended to read as follows:
(b)iiThe commissioner [commission] shall adopt rules in consultation with the
[Texas] Department of Information Resources as necessary to implement this section,
including rules prescribing a period of benefits that is of sufficient duration to allow
payment by electronic funds transfer.
SECTIONi1.315.iiSection 409.024, Labor Code, is amended to read as follows:
Sec.i409.024.iiTERMINATION OR REDUCTION OF BENEFITS; NOTICE;
ADMINISTRATIVE VIOLATION. (a) An insurance carrier shall file with the
department [commission] a notice of termination or reduction of benefits, including
the reasons for the termination or reduction, not later than the 10th day after the date
on which benefits are terminated or reduced.
(b)iiAn insurance carrier commits a violation if the insurance carrier does not
have reasonable grounds to terminate or reduce benefits, as determined by the
department [commission]. A violation under this subsection is a Class B
administrative violation.
PART 13. AMENDMENTS TO CHAPTER 410, LABOR CODE
SECTIONi1.351.iiSection 410.002, Labor Code, is amended to read as follows:
Sec.i410.002.iiLAW GOVERNING LIABILITY PROCEEDINGS. A
proceeding before the department [commission] to determine the liability of an
insurance carrier for compensation for an injury or death under this subtitle is
governed by this chapter.
SECTIONi1.352.iiSection 410.005, Labor Code, is amended by amending Subsections (a) and (c) and adding Subsection (d) to read as follows:
(a)iiUnless the department [commission] determines that good cause exists for
the selection of a different location, a prehearing [benefit review] conference or a
contested case hearing may not be conducted at a site more than 75 miles from the
claimant's residence at the time of the injury.
2376 79th Legislature — Regular Session 71st Day
(c)iiAn injured employee who is a party to a prehearing conference may select
the department field office at which the prehearing conference [All appeals panel
proceedings] shall be conducted [in Travis County].
(d)iiNotwithstanding Subsections (a) and (c), if determined appropriate by the commissioner, the department may conduct a prehearing conference telephonically on agreement by the injured employee.
SECTIONi1.353.iiSection 410.006(a), Labor Code, is amended to read as follows:
(a)iiA claimant may be represented at a prehearing [benefit review] conference, a
contested case hearing, or arbitration by an attorney or may be assisted by an
individual of the claimant's choice who does not work for an attorney or receive a fee.
An employee of an attorney may represent a claimant if that employee:
(1)iiis a relative of the claimant; and
(2)iidoes not receive a fee.
SECTIONi1.354.iiSubchapter A, Chapter 410, Labor Code, is amended by adding Sections 410.007 and 410.008 to read as follows:
Sec.i410.007.iiINFORMATION LIST. (a) The department shall determine the type of information that is most useful to parties to help resolve disputes regarding income benefits. That information may include:
(1)iireports regarding the compensable injury;
(2)iimedical information regarding the injured employee; and
(3)iiwage records.
(b)iiThe department shall publish a list developed of the information under Subsection (a) in appropriate media, including the department's Internet website, to provide guidance to parties to a dispute on the type of information they should have available at a prehearing conference or a contested case hearing.
(c)iiAt the time a prehearing conference is scheduled, the department shall provide a copy of the list under Subsection (b) to each party to the dispute.
Sec.i410.008.iiPRECEDENT MANUAL. (a) The commissioner by rule shall adopt a precedent manual for workers' compensation disputes to establish better and more consistent decisions at each level of the dispute resolution process. In developing the precedent manual, the commissioner shall use as a model the precedent manual developed by the Texas Workforce Commission for appealed unemployment insurance cases.
(b)iiThe commissioner may adopt key contested case decisions and court decisions as precedent decisions.
(c)iiThe department shall:
(1)iipublish the decisions adopted under Subsection (b) in the precedent manual by subject areas; and
(2)iimake the precedent manual available on the department's Internet website.
(d)iiThe department shall instruct each department employee involved in dispute resolution under this subtitle in the use of the manual and ensure that decisions at each stage of the dispute resolution process are made based on the precedents, as appropriate.
Tuesday, May 17, 2005 SENATE JOURNAL 2377
SECTIONi1.355.iiThe heading to Subchapter B, Chapter 410, Labor Code, is amended to read as follows:
SUBCHAPTER B. INITIAL DISPUTE RESOLUTION
[BENEFIT REVIEW CONFERENCE]
SECTIONi1.356.iiSubchapter B, Chapter 410, Labor Code, is amended by adding Sections 410.051, 410.052, and 410.053 to read as follows:
Sec.i410.051.iiINFORMAL BENEFIT DISPUTE RESOLUTION. (a) Before filing a dispute under this chapter with the department, the parties to the dispute, including the claimant, employer, and insurance carrier, must demonstrate a good faith effort to resolve the dispute among themselves.
(b)iiThe commissioner shall adopt rules that specify:
(1)iithe requirements for documentation of attempts under Subsection (a) to resolve the dispute, including documentation of telephone calls or written correspondence; and
(2)iithe standards by which an insurance carrier is required to reconsider the issue being disputed by the claimant, including:
(A)iithe identification of additional information or explanations necessary to resolve the dispute;
(B)iithe name of the insurance carrier and information as to how to contact the insurance carrier representative who has the authority to resolve disputes informally; and
(C)iithe time frame and method by which the insurance carrier representative will contact the claimant to discuss a possible resolution of the dispute.
(c)iiIf a claimant notifies an insurance carrier of an issue requiring dispute resolution under this subchapter, the carrier, not later than the fifth business day after the date of receipt of the notice, shall notify the claimant acknowledging receipt of the request for reconsideration.
(d)iiAn insurance carrier shall acknowledge, investigate, and resolve a request for reconsideration under this section not later than the 15th calendar day after the date on which the carrier receives notice of the request for reconsideration from the claimant.
(e)iiA claimant may request a contested case hearing under this subchapter if the claimant has requested reconsideration and:
(1)iiafter reconsideration, the claimant is dissatisfied with the insurance carrier's proposed resolution; or
(2)iithe claimant has not received the insurance carrier's response to the request for reconsideration by the 15th calendar day after the date the insurance carrier received notice of the request for reconsideration.
(f)iiFailure to comply with the requirements of this section and rules adopted by the commissioner may result, after notice and hearing, in the determination of an administrative violation and imposition of sanctions and administrative penalties as provided by Chapters 82 and 84, Insurance Code.
Sec.i410.052.iiREQUEST FOR ARBITRATION OR CONTESTED CASE HEARING. If the parties are unable to timely resolve a dispute through the informal dispute resolution process required under Section 410.051, the claimant may file with the department a request for:
2378 79th Legislature — Regular Session 71st Day
(1)iiarbitration under Subchapter C; or
(2)iia contested case hearing under Subchapter D.
Sec.i410.053.iiPAYMENT OF BENEFITS UNDER INTERLOCUTORY ORDER. If the parties to a dispute have filed a request with the department under Section 410.052, the commissioner may issue an interlocutory order for the payment of all or part of medical benefits or income benefits during the pendency of the dispute. The order may address accrued benefits, future benefits, or both accrued benefits and future benefits.
SECTIONi1.357.iiSection 410.102, Labor Code, is amended to read as follows:
Sec.i410.102.iiARBITRATORS; QUALIFICATIONS. (a) An arbitrator must be
an employee of the department [commission], except that the department
[commission] may contract with qualified arbitrators on a determination of special
need.
(b)iiAn arbitrator must:
(1)iibe a member of the National Academy of Arbitrators;
(2)iibe on an approved list of the American Arbitration Association or Federal Mediation and Conciliation Service; or
(3)iimeet qualifications established by the commissioner [commission] by
rule [and be approved by an affirmative vote of at least two commission members
representing employers of labor and at least two commission members representing
wage earners].
(c)iiThe department [commission] shall require that each arbitrator have
appropriate training in the workers' compensation laws of this state. The
commissioner by rule [commission] shall establish procedures to carry out this
subsection.
SECTIONi1.358.iiSection 410.103, Labor Code, is amended to read as follows:
Sec.i410.103.iiDUTIES OF ARBITRATOR. An arbitrator shall:
(1)iiprotect the interests of all parties;
(2)iiensure that all relevant evidence has been disclosed to the arbitrator and to all parties; and
(3)iirender an award consistent with this subtitle and the policies of the
department [commission].
SECTIONi1.359.iiSection 410.104, Labor Code, is amended to read as follows:
Sec.i410.104.iiELECTION OF ARBITRATION; EFFECT. (a) If issues remain
unresolved after the informal dispute resolution process required under Section
410.051 [a benefit review conference], the parties, by agreement, may elect to engage
in arbitration in the manner provided by this subchapter. Arbitration may be used only
to resolve disputed benefit issues and is an alternative to a contested case hearing. [A
contested case hearing scheduled under Section 410.025(b) is canceled by an election
under this subchapter.]
(b)iiTo elect arbitration, the parties must file the election with the department on
a form prescribed by the commissioner [commission] not later than the 20th day after
the date the insurance carrier is required to resolve the dispute under Section
410.051(d) [last day of the benefit review conference. The commission shall prescribe
a form for that purpose].
Tuesday, May 17, 2005 SENATE JOURNAL 2379
(c)iiAn election to engage in arbitration under this subchapter is irrevocable and
binding on all parties for the resolution of all disputes under this chapter arising out of
the claims that are under the jurisdiction of the department [commission].
(d)iiAn agreement to elect arbitration binds the parties to the provisions of
Chapters 408-408E [Chapter 408] relating to benefits, and any award, agreement, or
settlement after arbitration is elected must comply with those chapters [that chapter].
SECTIONi1.360.iiSection 410.105, Labor Code, is amended to read as follows:
Sec.i410.105.iiLISTS OF ARBITRATORS. (a) The department [commission]
shall establish regional lists of arbitrators who meet the qualifications prescribed
under Sections 410.102(a) and (b). Each regional list shall be initially prepared in a
random name order, and subsequent additions to a list shall be added chronologically.
(b)iiThe department [commission] shall review the lists of arbitrators annually
and determine if each arbitrator is fair and impartial and makes awards that are
consistent with and in accordance with this subtitle and the rules of the commissioner
[commission]. The commissioner [commission] shall remove an arbitrator if, after the
review, the commissioner determines that the arbitrator is not fair and impartial or
does not make awards consistent with this subtitle and the commissioner's rules
[arbitrator does not receive an affirmative vote of at least two commission members
representing employers of labor and at least two commission members representing
wage earners].
(c)iiThe department's [commission's] lists are confidential and are not subject to
disclosure under Chapter 552, Government Code. The lists may not be revealed by
any department [commission] employee to any person who is not a department
[commission] employee. The lists are exempt from discovery in civil litigation unless
the party seeking the discovery establishes reasonable cause to believe that a violation
of the requirements of this section or Section 410.106, 410.107, 410.108, or
410.109(b) occurred and that the violation is relevant to the issues in dispute.
SECTIONi1.361.iiSection 410.106, Labor Code, is amended to read as follows:
Sec.i410.106.iiSELECTION OF ARBITRATOR. (a) The department
[commission] shall assign the arbitrator for a particular case by selecting the next
name after the previous case's selection in consecutive order.
(b)iiThe department [commission] may not change the order of names once the
order is established under this subchapter, except that once each arbitrator on the list
has been assigned to a case, the names shall be randomly reordered.
SECTIONi1.362.iiSection 410.107(a), Labor Code, is amended to read as follows:
(a)iiThe department [commission] shall assign an arbitrator to a pending case not
later than the 30th day after the date on which the election for arbitration is filed with
the department [commission].
SECTIONi1.363.iiSection 410.108(a), Labor Code, is amended to read as follows:
(a)iiEach party is entitled, in its sole discretion, to one rejection of the arbitrator
in each case. If a party rejects the arbitrator, the department [commission] shall assign
another arbitrator as provided by Section 410.106.
SECTIONi1.364.iiSection 410.109, Labor Code, is amended to read as follows:
2380 79th Legislature — Regular Session 71st Day
Sec.i410.109.iiSCHEDULING OF ARBITRATION. (a) The arbitrator shall
schedule arbitration to be held not later than the 30th day after the date of the
arbitrator's assignment and shall notify the parties and the department [commission]
of the scheduled date.
(b)iiIf an arbitrator is unable to schedule arbitration in accordance with
Subsection (a), the department [commission] shall appoint the next arbitrator on the
applicable list. Each party is entitled to reject the arbitrator appointed under this
subsection in the manner provided under Section 410.108.
SECTIONi1.365.iiSection 410.110, Labor Code, is amended to read as follows:
Sec.i410.110.iiCONTINUANCE. (a) A request by a party for a continuance of
the arbitration to another date must be directed to the department [director]. The
department [director] may grant a continuance only if the department [director]
determines, giving due regard to the availability of the arbitrator, that good cause for
the continuance exists.
(b)iiIf the department [director] grants a continuance under this section, the
rescheduled date may not be later than the 30th day after the original date of the
arbitration.
(c)iiWithout regard to whether good cause exists, the department [director] may
not grant more than one continuance to each party.
SECTIONi1.366.iiSection 410.111, Labor Code, is amended to read as follows:
Sec.i410.111.iiRULES. The commissioner [commission] shall adopt rules for
arbitration consistent with generally recognized arbitration principles and procedures.
SECTIONi1.367.iiSection 410.114(b), Labor Code, is amended to read as follows:
(b)iiThe department [commission] shall make an electronic recording of the
proceeding.
SECTIONi1.368.iiSection 410.118(d), Labor Code, is amended to read as follows:
(d)iiThe arbitrator shall file a copy of the award as part of the permanent claim
file at the department [commission] and shall notify the parties in writing of the
decision.
SECTIONi1.369.iiSection 410.119(b), Labor Code, is amended to read as follows:
(b)iiAn arbitrator's award is a final order of the commissioner [commission].
SECTIONi1.370.iiSections 410.121(a) and (b), Labor Code, are amended to read as follows:
(a)iiOn application of an aggrieved party, a court of competent jurisdiction shall vacate an arbitrator's award on a finding that:
(1)iithe award was procured by corruption, fraud, or misrepresentation;
(2)iithe decision of the arbitrator was arbitrary and capricious; or
(3)iithe award was outside the jurisdiction of the department [commission].
(b)iiIf an award is vacated, the case shall be remanded to the department
[commission] for another arbitration proceeding.
SECTIONi1.371.iiSection 410.151, Labor Code, is amended to read as follows:
Tuesday, May 17, 2005 SENATE JOURNAL 2381
Sec.i410.151.iiCONTESTED CASE HEARING; PREHEARING
CONFERENCE REQUIRED [SCOPE]. (a) If arbitration is not elected under Section
410.104, a party to a claim [for which a benefit review conference is held or a party
eligible to proceed directly to a contested case hearing as provided by Section
410.024] is entitled to obtain a contested case hearing by filing a request with the
department in the manner prescribed by the commissioner by rule not later than the
90th day after the date the insurance carrier is required to resolve the dispute under
Section 410.051(d).
(b)iiOn receipt of a request for a contested case hearing, the department shall:
(1)iidirect the parties to meet in a prehearing conference to establish the disputed issues involved in the claim;
(2)iischedule the prehearing conference to be held not later than the 30th day after the date of receipt of the claimant's request;
(3)iischedule the contested case hearing to be held not later than the 60th day after the date of receipt of the claimant's request; and
(4)iinotify the office of injured employee counsel that a request for administrative resolution of the dispute has been filed with the department.
(c)iiThe department shall send written notice of the prehearing conference and the contested case hearing to the parties to the claim.
(d)iiAn issue that was not raised at a prehearing [benefit review] conference [or
that was resolved at a benefit review conference] may not be considered at a contested
case hearing under this subchapter unless:
(1)iithe parties consent; or
(2)ii[if the issue was not raised,] the department [commission] determines
that good cause existed for not raising the issue at the conference.
(e)iiNotwithstanding Subsection (a), the department may extend the 90-day period for filing a request for a contested case hearing if the party to the claim applies for an extension in the manner prescribed by the commissioner and presents evidence satisfactory to the department of good cause for the failure to comply with the 90-day requirement.
SECTIONi1.372.iiSection 410.153, Labor Code, is amended to read as follows:
Sec.i410.153.iiAPPLICATION OF ADMINISTRATIVE PROCEDURE ACT.
Chapter 2001, Government Code, applies to a contested case hearing to the extent that
the commissioner determines [commission finds] appropriate, except that the
following do not apply:
(1)iiSection 2001.054;
(2)iiSections 2001.061 and 2001.062;
(3)iiSection 2001.202; and
(4)iiSubchapters F, G, I, and Z, except for Section 2001.141(c).
SECTIONi1.373.iiSection 410.154, Labor Code, is amended to read as follows:
Sec.i410.154.iiSCHEDULING OF HEARING. The department [commission]
shall schedule a contested case hearing in accordance with Section 410.151 [410.024
or 410.025(b)].
SECTIONi1.374.iiSection 410.155, Labor Code, is amended to read as follows:
2382 79th Legislature — Regular Session 71st Day
Sec.i410.155.iiCONTINUANCE. (a) A written request by a party for a
continuance of a contested case hearing to another date must be directed to the
department [commission].
(b)iiThe department [commission] may grant a continuance only if the
department [commission] determines that there is good cause for the continuance.
SECTIONi1.375.iiSection 410.157, Labor Code, is amended to read as follows:
Sec.i410.157.iiRULES. The commissioner [commission] shall adopt rules
governing procedures under which contested case hearings are conducted.
SECTIONi1.376.iiSection 410.158(a), Labor Code, is amended to read as follows:
(a)iiExcept as provided by Section 410.162, discovery is limited to:
(1)iidepositions on written questions to any health care provider;
(2)iidepositions of other witnesses as permitted by the hearing officer for good cause shown; and
(3)iiinterrogatories as prescribed by the commissioner [commission].
SECTIONi1.377.iiSection 410.159, Labor Code, is amended to read as follows:
Sec.i410.159.iiSTANDARD INTERROGATORIES. (a) The commissioner
[commission] by rule shall prescribe standard form sets of interrogatories to elicit
information from claimants and insurance carriers.
(b)iiStandard interrogatories shall be answered by each party and served on the
opposing party within the time prescribed by commissioner [commission] rule, unless
the parties agree otherwise.
SECTIONi1.378.iiSection 410.160, Labor Code, is amended to read as follows:
Sec.i410.160.iiEXCHANGE OF INFORMATION. Within the time prescribed
by commissioner [commission] rule, the parties shall exchange:
(1)iiall medical reports and reports of expert witnesses who will be called to testify at the hearing;
(2)iiall medical records;
(3)iiany witness statements;
(4)iithe identity and location of any witness known to the parties to have knowledge of relevant facts; and
(5)iiall photographs or other documents that a party intends to offer into evidence at the hearing.
SECTIONi1.379.iiSection 410.161, Labor Code, is amended to read as follows:
Sec.i410.161.iiFAILURE TO DISCLOSE INFORMATION. A party who fails to
disclose information known to the party or documents that are in the party's
possession, custody, or control at the time disclosure is required by Sections
410.158-410.160 may not introduce the evidence at any subsequent proceeding before
the department [commission] or in court on the claim unless good cause is shown for
not having disclosed the information or documents under those sections.
SECTIONi1.380.iiSections 410.168(c)-(f), Labor Code, are amended to read as follows:
Tuesday, May 17, 2005 SENATE JOURNAL 2383
(c)iiThe hearing officer may enter an interlocutory order for the payment of all or
part of medical benefits or income benefits. The order may address accrued benefits,
future benefits, or both accrued benefits and future benefits. The order is binding
during the pendency of a judicial review as provided by this chapter [an appeal to the
appeals panel].
(d)iiOn a form prescribed by rule by the commissioner [that the commission by
rule prescribes], the hearing officer shall issue a separate written decision regarding
attorney's fees and any matter related to attorney's fees. The decision regarding
attorney's fees and the form may not be made known to a jury in a judicial review of
an award, including an appeal.
(e)iiThe commissioner [commission] by rule shall prescribe the times within
which the hearing officer shall [must] file the decisions with the department after the
date the contested case hearing is concluded. The commissioner may issue an order
for payment of benefits on receipt of the decision [division].
(f)iiThe department [division] shall send a copy of the decision to each party.
SECTIONi1.381.iiSection 410.169, Labor Code, is amended to read as follows:
Sec.i410.169.iiEFFECT OF DECISION. A decision of a hearing officer
regarding benefits is final in the absence of a timely appeal by a party and is binding
during the pendency of a judicial review as provided by this chapter [an appeal to the
appeals panel].
SECTIONi1.382.iiSubchapter D, Chapter 410, Labor Code, is amended by adding Sections 410.170-410.173 to read as follows:
Sec.i410.170.iiCLERICAL ERROR. The commissioner may revise a decision in a contested case hearing on a finding of clerical error.
Sec.i410.171.iiCONTINUATION OF DEPARTMENT JURISDICTION. During judicial review of a hearing officer's decision on any disputed issue relating to a workers' compensation claim, the department retains jurisdiction of all other issues related to the claim.
Sec.i410.172.iiJUDICIAL ENFORCEMENT OF ORDER OR DECISION; ADMINISTRATIVE VIOLATION. (a) If a person refuses or fails to comply with an interlocutory order, final order, or decision of the department under this subtitle, the department may bring suit in Travis County to enforce the order or decision.
(b)iiIf an insurance carrier refuses or fails to comply with an interlocutory order, final order, or decision of the department under this subtitle, the claimant may bring suit in the county of the claimant's residence at the time of injury or death, if the employee is deceased, or in the case of an occupational disease, in the county where the employee resided on the date disability began or any county agreed to by the parties.
(c)iiIf the department brings suit to enforce an interlocutory order, final order, or decision, the department is entitled to reasonable attorney's fees and costs for the prosecution and collection of the claim, in addition to a judgment enforcing the order or decision and any other remedy provided by law.
2384 79th Legislature — Regular Session 71st Day
(d)iiA claimant who brings suit to enforce an interlocutory order, final order, or decision of the department under this subtitle is entitled to a penalty equal to 12 percent of the amount of benefits recovered in the judgment, interest, and reasonable attorney's fees for the prosecution and collection of the claim, in addition to a judgment enforcing the order or decision.
(e)iiA person commits a violation if the person fails or refuses to comply with an interlocutory order, final order, or decision of the department before the 21st day after the date the order or decision becomes final. A violation under this subsection is a Class A administrative violation.
Sec.i410.173.iiREIMBURSEMENT FOR CERTAIN OVERPAYMENTS. The subsequent injury fund shall reimburse an insurance carrier for any overpayment of benefits made under an interlocutory order or decision if that order or decision is reversed or modified by final arbitration, order, or decision of the commissioner or a court.
SECTIONi1.383.iiSection 410.251, Labor Code, is amended to read as follows:
Sec.i410.251.iiEXHAUSTION OF REMEDIES. A party that has exhausted the
party's [its] administrative remedies under this subtitle and that is aggrieved by a final
decision of the department [appeals panel] may seek judicial review under this
subchapter and Subchapter G, if applicable.
SECTIONi1.384.iiSection 410.252, Labor Code, is amended by amending Subsections (a) and (b) and adding Subsection (e) to read as follows:
(a)iiA party may seek judicial review by filing suit not later than the 40th day
after the date on which the decision of the hearings officer [appeals panel] was filed
with the department [division].
(b)iiThe party bringing suit to appeal the decision must file a petition in district
[with the appropriate] court in:
(1)iithe county where the employee lived [resided] at the time of the injury
or death, if the employee is deceased; or
(2)iiin the case of an occupational disease, in the county where the employee
lived [resided] on the date disability began or any county agreed to by the parties.
(e)iiA district court described by Subsection (b) has exclusive jurisdiction of a suit described by this section.
SECTIONi1.385.iiSection 410.253, Labor Code, is amended to read as follows:
Sec.i410.253.iiSERVICE; NOTICE. (a) A party seeking judicial review shall simultaneously:
(1)iifile a copy of the party's petition with the court;
(2)iiserve any opposing party to the suit; and
(3)iiprovide written notice of the suit or notice of appeal to the department
[commission].
(b)iiA party may not seek judicial review under Section 410.251 unless the party
has provided written notice of the suit to the department [commission] as required by
this section.
SECTIONi1.386.iiSection 410.254, Labor Code, is amended to read as follows:
Tuesday, May 17, 2005 SENATE JOURNAL 2385
Sec.i410.254.iiDEPARTMENT [COMMISSION] INTERVENTION. On timely
motion initiated by the commissioner [executive director], the department may
[commission shall be permitted to] intervene in any judicial proceeding under this
subchapter or Subchapter G.
SECTIONi1.387.iiSections 410.256(a), (c), (d), and (f), Labor Code, are amended to read as follows:
(a)iiA claim or issue may not be settled contrary to the provisions of the
contested case hearing [an appeals panel] decision issued on the claim or issue unless
a party to the proceeding has filed for judicial review under this subchapter or
Subchapter G. The trial court must approve a settlement made by the parties after
judicial review of an award is sought and before the court enters judgment.
(c)iiA settlement may not provide for:
(1)iipayment of any benefits in a lump sum except as provided by Section
408D.108 [408.128]; or
(2)iilimitation or termination of the claimant's right to medical benefits under
Section 408A.001 [408.021].
(d)iiA settlement or agreement that resolves an issue of impairment may not be
made before the claimant reaches maximum medical improvement and must adopt
one of the impairment ratings under Subchapter C [G], Chapter 408D [408].
(f)iiSettlement of a claim or issue under this section does not constitute a
modification or reversal of the decision awarding benefits for the purpose of Section
410.173 [410.209].
SECTIONi1.388.iiSections 410.257(a), (b), (c), and (e), Labor Code, are amended to read as follows:
(a)iiA judgment entered by a court on judicial review of a [an appeals panel]
decision of a hearing officer under this subchapter or Subchapter G must comply with
all appropriate provisions of the law.
(b)iiA judgment under this section may not provide for:
(1)iipayment of benefits in a lump sum except as provided by Section
408D.108 [408.128]; or
(2)iithe limitation or termination of the claimant's right to medical benefits
under Section 408A.001 [408.021].
(c)iiA judgment that resolves an issue of impairment may not be entered before
the date the claimant reaches maximum medical improvement. The judgment must
adopt an impairment rating under Subchapter C [G], Chapter 408D [408], except to
the extent Section 410.307 applies.
(e)iiA judgment under this section based on default or on an agreement of the
parties does not constitute a modification or reversal of a decision awarding benefits
for the purpose of Section 410.173 [410.209].
SECTIONi1.389.iiThe heading to Section 410.258, Labor Code, is amended to read as follows:
Sec.i410.258.iiNOTIFICATION OF DEPARTMENT [COMMISSION] OF
PROPOSED JUDGMENTS AND SETTLEMENTS; RIGHT TO INTERVENE.
SECTIONi1.390.iiSections 410.258(a)-(e), Labor Code, are amended to read as follows:
2386 79th Legislature — Regular Session 71st Day
(a)iiThe party who initiated a proceeding under this subchapter or Subchapter G
must file any proposed judgment or settlement made by the parties to the proceeding,
including a proposed default judgment, with the department [executive director of the
commission] not later than the 30th day before the date on which the court is
scheduled to enter the judgment or approve the settlement. The proposed judgment or
settlement must be mailed to the commissioner [executive director] by certified mail,
return receipt requested.
(b)iiThe department [commission] may intervene in a proceeding under
Subsection (a) not later than the 30th day after the date of receipt of the proposed
judgment or settlement.
(c)iiThe commissioner [commission] shall review the proposed judgment or
settlement to determine compliance with all appropriate provisions of the law. If the
commissioner [commission] determines that the proposal is not in compliance with
the law, the department [commission] may intervene as a matter of right in the
proceeding not later than the 30th day after the date of receipt of the proposed
judgment or settlement. The court may limit the extent of the department's
[commission's] intervention to providing the information described by Subsection (e).
(d)iiIf the department [commission] does not intervene before the 31st day after
the date of receipt of the proposed judgment or settlement, the court shall enter the
judgment or approve the settlement if the court determines that the proposed judgment
or settlement is in compliance with all appropriate provisions of the law.
(e)iiIf the department [commission] intervenes in the proceeding, the
commissioner [commission] shall inform the court of each reason the commissioner
[commission] believes the proposed judgment or settlement is not in compliance with
the law. The court shall give full consideration to the information provided by the
commissioner [commission] before entering a judgment or approving a settlement.
SECTIONi1.3905.iiSection 410.301(a), Labor Code, is amended to read as follows:
(a)iiJudicial review [of a final decision of a commission appeals panel] regarding
compensability or eligibility for or the amount of income or death benefits shall be
conducted as provided by this subchapter.
SECTIONi1.391.iiSection 410.302, Labor Code, is amended to read as follows:
Sec.i410.302.iiADMISSIBILITY OF RECORDS; LIMITATION OF ISSUES. (a) The records of a prehearing conference or contested case hearing conducted under this chapter are admissible in a trial under this subchapter in accordance with the Texas Rules of Evidence.
(b)iiA trial under this subchapter is limited to issues decided by the hearing
officer at the contested case hearing [commission appeals panel] and on which judicial
review is sought. The pleadings must specifically set forth the determinations of the
hearing officer [appeals panel] by which the party is aggrieved.
SECTIONi1.392.iiSection 410.304, Labor Code, is amended to read as follows:
Sec.i410.304.iiCONSIDERATION OF [APPEALS PANEL] DECISION. (a) In
a jury trial, the court, before submitting the case to the jury, shall inform the jury in the
court's instructions, charge, or questions to the jury of the hearing officer's
[commission appeals panel] decision on each disputed issue described by Section
410.301(a) that is submitted to the jury.
Tuesday, May 17, 2005 SENATE JOURNAL 2387
(b)iiIn a trial to the court without a jury, the court in rendering its judgment on an
issue described by Section 410.301(a) shall consider the decision of the hearing
officer [commission appeals panel].
SECTIONi1.393.iiSections 410.306(b) and (c), Labor Code, are amended to read as follows:
(b)iiThe department [commission] on payment of a reasonable fee shall make
available to the parties a certified copy of the department's [commission's] record. All
facts and evidence the record contains are admissible to the extent allowed under the
Texas Rules of [Civil] Evidence.
(c)iiExcept as provided by Section 410.307, evidence of extent of impairment
shall be limited to that presented to the department [commission]. The court or jury, in
its determination of the extent of impairment, shall adopt one of the impairment
ratings under Subchapter C [G], Chapter 408D [408].
SECTIONi1.394.iiSections 410.307(a) and (d), Labor Code, are amended to read as follows:
(a)iiEvidence of the extent of impairment is not limited to that presented to the
department [commission] if the court, after a hearing, finds that there is a substantial
change of condition. The court's finding of a substantial change of condition may be
based only on:
(1)iimedical evidence from the same doctor or doctors whose testimony or
opinion was presented to the department [commission];
(2)iievidence that has come to the party's knowledge since the contested case hearing;
(3)iievidence that could not have been discovered earlier with due diligence by the party; and
(4)iievidence that would probably produce a different result if it is admitted into evidence at the trial.
(d)iiIf the court finds a substantial change of condition under this section, new
medical evidence of the extent of impairment must be from and is limited to the same
doctor or doctors who made impairment ratings [before the commission] under
Section 408C.103 [408.123].
SECTIONi1.395.iiSection 410.308(a), Labor Code, is amended to read as follows:
(a)iiThe department [commission or the Texas Department of Insurance] shall
furnish any interested party in the claim with a certified copy of the notice of the
employer securing compensation with the insurance carrier, filed with the department
[commission].
SECTIONi1.396.iiThe following laws are repealed:
(1)iiSection 410.001, Labor Code;
(2)iiSection 410.004, Labor Code;
(3)iiSections 410.021-410.034, Labor Code; and
(4)iiSubchapter E, Chapter 410, Labor Code.
PART 14. AMENDMENTS TO CHAPTER 411, LABOR CODE
SECTIONi1.401.iiSection 411.003(a), Labor Code, is amended to read as follows:
2388 79th Legislature — Regular Session 71st Day
(a)iiAn insurance company, the agent, servant, or employee of the insurance
company, or a safety consultant who performs a safety consultation under this chapter
[Subchapter D or E] has no liability for an accident, injury, or occupational disease
based on an allegation that the accident, injury, or occupational disease was caused or
could have been prevented by a program, inspection, or other activity or service
undertaken by the insurance company for the prevention of accidents in connection
with operations of the employer.
SECTIONi1.402.iiSection 411.011, Labor Code, is amended to read as follows:
Sec.i411.011.iiCOORDINATION AND ENFORCEMENT OF STATE LAWS
AND RULES. The department [division] shall coordinate and enforce the
implementation of state laws and rules relating to workers' health and safety issues.
SECTIONi1.403.iiSection 411.012, Labor Code, is amended to read as follows:
Sec.i411.012.iiCOLLECTION AND ANALYSIS OF INFORMATION. (a) The
department [division] shall collect and serve as a repository for statistical information
on workers' health and safety. The department [division] shall analyze and use that
information to:
(1)iiidentify and assign priorities to safety needs; and
(2)iibetter coordinate the safety services provided by public or private organizations, including insurance carriers.
(b)iiThe department [division] shall coordinate or supervise the collection by
state or federal entities of information relating to job safety, including information
collected for the supplementary data system and the annual survey of the Bureau of
Labor Statistics of the United States Department of Labor.
SECTIONi1.404.iiSection 411.013, Labor Code, is amended to read as follows:
Sec.i411.013.iiFEDERAL CONTRACTS AND PROGRAMS. The department
[With the approval of the commission, the division] may:
(1)iienter into contracts with the federal government to perform occupational safety projects; and
(2)iiapply for federal funds through any federal program relating to occupational safety.
SECTIONi1.405.iiSection 411.014, Labor Code, is amended to read as follows:
Sec.i411.014.iiEDUCATIONAL PROGRAMS; COOPERATION WITH
OTHER ENTITIES. (a) The department [division] shall promote workers' health and
safety through educational and other innovative programs developed by the
department or other state agencies [division].
(b)iiThe department [division] shall cooperate with other entities in the
development and approval of safety courses, safety plans, and safety programs.
(c)iiThe department [division] shall cooperate with business and industry trade
associations, labor organizations, and other entities to develop means and methods of
educating employees and employers concerning workplace safety.
SECTIONi1.406.iiSections 411.015(a), (d), and (e), Labor Code, are amended to read as follows:
(a)iiThe department [division] shall publish or procure and issue educational
books, pamphlets, brochures, films, videotapes, and other informational and
educational material.
Tuesday, May 17, 2005 SENATE JOURNAL 2389
(d)iiThe department [division] shall make specific decisions regarding the issues
and problems to be addressed by the educational materials after assigning appropriate
priorities based on frequency of injuries, degree of hazard, severity of injuries, and
similar considerations.
(e)iiThe educational materials provided under this section must include specific references to:
(1)iithe requirements of state and federal laws and regulations;
(2)iirecommendations and practices of business, industry, and trade associations; and
(3)iiif needed, recommended work practices based on recommendations
made by the department [division] for the prevention of injury.
SECTIONi1.407.iiSection 411.016, Labor Code, is amended to read as follows:
Sec.i411.016.iiPEER REVIEW SAFETY PROGRAM. The department
[division] shall certify safe employers to provide peer review safety programs.
SECTIONi1.408.iiSection 411.017, Labor Code, is amended to read as follows:
Sec.i411.017.iiADVISORY SERVICE TO INSURANCE CARRIERS. The
department [division] shall advise insurance carrier loss control service organizations
of safety needs and priorities developed by the department [division] and of:
(1)iihazard classifications, specific employers, industries, occupations, or geographic regions to which loss control services should be directed; or
(2)iithe identity and types of injuries or occupational diseases and means and methods for prevention of those injuries or diseases to which loss control services should be directed.
SECTIONi1.409.iiSection 411.018, Labor Code, is amended to read as follows:
Sec.i411.018.iiFEDERAL OSHA COMPLIANCE. In accordance with Section
7(c), Occupational Safety and Health Act of 1970 (29 U.S.C. Section 656), the
department [division] shall:
(1)iiconsult with employers regarding compliance with federal occupational safety laws and rules; and
(2)iicollect information relating to occupational safety as required by federal laws, rules, or agreements.
SECTIONi1.410.iiSection 411.031, Labor Code, is amended to read as follows:
Sec.i411.031.iiJOB SAFETY INFORMATION SYSTEM; COOPERATION
WITH OTHER AGENCIES. (a) The department [division] shall maintain a job
safety information system.
(b)iiThe department [division] shall obtain from any appropriate state agency,
including the Texas Workforce Commission [Department of Insurance], the [Texas]
Department of State Health Services, and the Department of Assistive and
Rehabilitative Services [Texas Employment Commission], data and statistics,
including data and statistics compiled for rate-making purposes.
(c)iiThe department [division] shall consult with the Texas Workforce
[Department of Insurance and the Texas Employment] Commission in the design of
data information and retrieval systems to accomplish the mutual purposes of the
department [those agencies] and [of] the commission [division].
SECTIONi1.411.iiSection 411.035, Labor Code, is amended to read as follows:
2390 79th Legislature — Regular Session 71st Day
Sec.i411.035.iiUSE OF INJURY REPORT. A report made under Section
411.032 may not be considered to be an admission by or evidence against an
employer or an insurance carrier in a proceeding before the department [commission]
or a court in which the facts set out in the report are contradicted by the employer or
insurance carrier.
SECTIONi1.412.iiSection 411.064, Labor Code, is amended to read as follows:
Sec.i411.064.iiINSPECTIONS. (a) The department, in conjunction with the
audits conducted under Section 402.166(g), may [division shall] conduct inspections
[an inspection at least every two years] to determine the adequacy of the accident
prevention services required by Section 411.061 for each insurance company writing
workers' compensation insurance in this state.
(b)iiIf, after an inspection under Subsection (a), an insurance company's accident
prevention services are determined to be inadequate, the department [division] shall
reinspect the accident prevention services of the insurance company not earlier than
the 180th day or later than the 270th day after the date the accident prevention
services were determined by the department [division] to be inadequate.
(c)iiThe insurance company shall reimburse the department [commission] for the
reasonable cost of the reinspection, including a reasonable allocation of the
department's [commission's] administrative costs incurred in conducting the
inspections.
SECTIONi1.413.iiSection 411.065, Labor Code, is amended to read as follows:
Sec.i411.065.iiANNUAL INFORMATION SUBMITTED BY INSURANCE
COMPANY. (a) Each insurance company writing workers' compensation insurance
in this state shall submit to the department [division] at least once a year detailed
information on the type of accident prevention facilities offered to that insurance
company's policyholders.
(b)iiThe information must include:
(1)iithe amount of money spent by the insurance company on accident prevention services;
(2)ii[the number and qualifications of field safety representatives employed
by the insurance company;
[(3)]iithe number of site inspections performed;
(3)i[(4)]iiaccident prevention services for which the insurance company
contracts;
(4)i[(5)]iia breakdown of the premium size of the risks to which services
were provided;
(5)i[(6)]iievidence of the effectiveness of and accomplishments in accident
prevention; and
(6)i[(7)]iiany additional information required by the department
[commission].
SECTIONi1.414.iiSection 411.067, Labor Code, is amended to read as follows:
Sec.i411.067.iiDEPARTMENT [COMMISSION] PERSONNEL. [(a)] The
department [commission] shall employ the personnel necessary to enforce this
subchapter, including at least 10 safety inspectors to perform inspections at a job site
and at an insurance company to determine the adequacy of the accident prevention
services provided by the insurance company.
Tuesday, May 17, 2005 SENATE JOURNAL 2391
[(b)iiA safety inspector must have the qualifications required for a field safety
representative by Section 411.062.]
SECTIONi1.415.iiThe heading to Subchapter F, Chapter 411, Labor Code, is amended to read as follows:
SUBCHAPTER F. EMPLOYEE REPORTS OF SAFETY VIOLATIONS;
EDUCATIONAL MATERIALS
SECTIONi1.416.iiSection 411.081, Labor Code, is amended to read as follows:
Sec.i411.081.iiTELEPHONE HOTLINE. (a) The department [division] shall
maintain in English and in Spanish a 24-hour toll-free telephone service for reports of
violations of occupational health or safety law.
(b)iiEach employer shall notify its employees of this service in a manner
prescribed by the commissioner [commission].
(c)iiThe commissioner shall adopt rules requiring the notice under Subsection (b) to be posted:
(1)iiin English and Spanish;
(2)iiin a conspicuous place in the employer's place of business; and
(3)iiin a sufficient number of other locations convenient to all employees.
SECTIONi1.417.iiSubchapter F, Chapter 411, Labor Code, is amended by adding Section 411.084 to read as follows:
Sec.i411.084.iiEDUCATIONAL MATERIALS. (a) The department shall provide to employers and employees educational material, including books, pamphlets, brochures, films, videotapes, or other informational material.
(b)iiEducational material shall be provided to employers and employees in English and Spanish.
(c)iiThe department shall adopt minimum content requirements for the educational material required under this section, including:
(1)iiinformation on an employee's right to report an unsafe working environment;
(2)iiinstructions on how to report unsafe working conditions and safety violations; and
(3)iiinformation on state laws regarding retaliation by employers.
SECTIONi1.418.iiSection 411.104, Labor Code, is amended to read as follows:
Sec.i411.104.iiADMINISTRATION BY DEPARTMENT. [DIVISION
DUTIES.ii(a)] The department [division] shall administer this subchapter.
[(b)iiIn addition to the duties specified in this chapter, the division shall perform
other duties as required by the commission.]
SECTIONi1.419.iiThe following laws are repealed:
(1)iiSection 411.001(1), Labor Code;
(2)iiSubchapters D and G, Chapter 411, Labor Code;
(3)iiSection 411.062, Labor Code;
(4)iiSection 411.063(b), Labor Code; and
(5)iiSection 411.102(1), Labor Code.
PART 15. AMENDMENTS TO CHAPTER 412, LABOR CODE
SECTIONi1.451.iiSections 412.041(g), (i), and (l), Labor Code, are amended to read as follows:
2392 79th Legislature — Regular Session 71st Day
(g)iiThe director shall act as an adversary before the department [commission]
and courts and present the legal defenses and positions of the state as an employer and
insurer, as appropriate.
(i)iiIn administering Chapter 501, the director is subject to the rules, orders, and
decisions of the commissioner [commission] in the same manner as a private
employer, insurer, or association.
(l)iiThe director shall furnish copies of all rules to:
(1)ii[the commission;
[(2)]iithe commissioner [of the Texas Department of Insurance]; and
(2)i[(3)]iithe administrative heads of all state agencies affected by this
chapter and Chapter 501.
PART 16. AMENDMENTS TO CHAPTER 413, LABOR CODE
SECTIONi1.501.iiThe heading to Subchapter A, Chapter 413, Labor Code, is amended to read as follows:
SUBCHAPTER A. GENERAL PROVISIONS
[DIVISION OF MEDICAL REVIEW]
SECTIONi1.502.iiSection 413.001, Labor Code, is amended to read as follows:
Sec.i413.001.iiAPPLICABILITY. This chapter applies to the provision of health
care services by insurance carriers who use provider networks and to insurance
carriers who do not use provider networks. [DEFINITION.iiIn this chapter, "division"
means the division of medical review of the commission.]
SECTIONi1.503.iiSection 413.002, Labor Code, is amended to read as follows:
Sec.i413.002.ii[DIVISION OF] MEDICAL REVIEW. (a) [The commission
shall maintain a division of medical review to ensure compliance with the rules and to
implement this chapter under the policies adopted by the commission.
[(b)]iiThe department [division] shall monitor health care providers, insurance
carriers, and workers' compensation claimants who receive medical services to ensure
the compliance of those persons with rules adopted by the commissioner
[commission] relating to health care, including medical policies and fee guidelines.
(b)i[(c)]iiIn monitoring health care providers who serve as designated doctors
under this subtitle [Chapter 408], the department [division] shall evaluate the
compliance of those providers with this subtitle and with rules adopted by the
commissioner [commission] relating to medical policies, fee guidelines, and
impairment ratings.
(c)iiThe department may monitor independent review organizations to ensure the compliance of those organizations with rules adopted by the commissioner. In monitoring independent review organizations who provide services described by this chapter, the department shall evaluate:
(1)iithe compliance of those organizations with this subtitle and with rules adopted by the commissioner relating to medical policies, fee guidelines, and impairment ratings; and
(2)iithe quality and timeliness of decisions made under Section 408A.003, 408D.102, or 413.031.
SECTIONi1.504.iiSection 413.003, Labor Code, is amended to read as follows:
Tuesday, May 17, 2005 SENATE JOURNAL 2393
Sec.i413.003.iiAUTHORITY TO CONTRACT. The commissioner
[commission] may contract with a private or public entity to perform a duty or
function of the department under this chapter [division].
SECTIONi1.505.iiSection 413.004, Labor Code, is amended to read as follows:
Sec.i413.004.iiCOORDINATION WITH PROVIDERS. The department
[division] shall coordinate the department's [its] activities with health care providers
as necessary to perform the department's [its] duties under this chapter. The
coordination may include:
(1)iiconducting educational seminars on commissioner [commission] rules
and procedures; or
(2)iiproviding information to and requesting assistance from professional peer review organizations.
SECTIONi1.506.iiSection 413.007, Labor Code, is amended to read as follows:
Sec.i413.007.iiINFORMATION MAINTAINED BY DEPARTMENT
[DIVISION]. (a) The department [division] shall maintain a statewide data base of
medical charges, actual payments, and treatment protocols that may be used by:
(1)iithe commissioner [commission] in adopting [the] medical policies and
fee guidelines; and
(2)iithe department [division] in administering [the] medical policies, fee
guidelines, or rules.
(b)iiThe department [division] shall ensure that the data base:
(1)iicontains information necessary to detect practices and patterns in medical charges, actual payments, and treatment protocols; and
(2)iimay [can] be used in a meaningful way to allow the [commission to]
control of medical costs as provided by this subtitle.
(c)iiThe department [division] shall ensure that the data base is available for
public access for a reasonable fee established by the department [commission]. The
identities of injured employees [workers] and beneficiaries may not be disclosed.
(d)iiThe department [division] shall take appropriate action to be aware of and to
maintain the most current information on developments in the treatment and cure of
injuries and diseases common in workers' compensation cases.
SECTIONi1.507.iiSections 413.008(a) and (b), Labor Code, are amended to read as follows:
(a)iiOn request from the department [commission] for specific information, an
insurance carrier shall provide to the department [division] any information in the
carrier's [its] possession, custody, or control that reasonably relates to the
department's [commission's] duties under this subtitle and to health care:
(1)iitreatment;
(2)iiservices;
(3)iifees; and
(4)iicharges.
(b)iiThe department [commission] shall maintain the confidentiality of
information received under this section [keep confidential information] that is
confidential by law.
SECTIONi1.508.iiSection 413.011, Labor Code, is amended to read as follows:
2394 79th Legislature — Regular Session 71st Day
Sec.i413.011.iiREIMBURSEMENT POLICIES FOR NON-NETWORK AND
OUT-OF-NETWORK HEALTH CARE; FEE [AND] GUIDELINES; MEDICAL
POLICIES; TREATMENT GUIDELINES AND PROTOCOLS. (a) This section
applies to non-network health care and out-of-network health care which the
insurance carrier is obligated to provide.
(a-1)iiThe commissioner [commission] shall adopt [use] health care
reimbursement policies and fee guidelines for health care that is provided through a
provider network under Section 408B.004(b) that reflect the standardized
reimbursement structures found in other health care delivery systems, with minimal
modifications to those reimbursement methodologies as necessary to meet
occupational injury requirements.
(b)iiTo achieve standardization, the commissioner [commission] shall adopt the
most current reimbursement methodologies, models, and values or weights used by
the federal Centers for Medicare & Medicaid Services [Health Care Financing
Administration], including applicable payment policies relating to coding, billing, and
reporting, and may modify documentation requirements as necessary to meet the
requirements of Section 413.053.
(c)i[(b)]iiIn determining the appropriate fees, the commissioner [commission]
shall also develop multiple conversion factors or other payment adjustment factors
taking into account economic indicators in health care and the requirements of
Subsection (e) [(d)]. The department [commission] shall also provide for reasonable
fees for the evaluation and management of care as required by Section 408C.004(b)
[408.025(c)] and commissioner [commission] rules. This section does not adopt the
Medicare fee schedule, and the commissioner [commission] shall not adopt
conversion factors or other payment adjustment factors based solely on those factors
as developed by the federal Centers for Medicare & Medicaid Services [Health Care
Financing Administration].
(d)i[(c)]iiThis section may not be interpreted in a manner that would discriminate
in the amount or method of payment or reimbursement for services in a manner
prohibited by Section 1451.104 [3(d), Article 21.52], Insurance Code, or as restricting
the ability of chiropractors to serve as treating doctors as authorized by this subtitle.
The commissioner [commission] shall also develop guidelines relating to fees charged
or paid for providing expert testimony relating to an issue arising under this subtitle.
(e)iiFee guidelines [(d)iiGuidelines for medical services fees] must be fair and
reasonable and designed to ensure the quality of medical care and to achieve effective
medical cost control. The guidelines may not provide for payment of a fee in excess of
the fee charged for similar treatment of an injured individual of an equivalent standard
of living and paid by that individual or by someone acting on that individual's behalf.
The commissioner [commission] shall consider the increased security of payment
afforded by this subtitle in establishing the fee guidelines. Agreements between a
provider and the insurance carrier or provider network that are above the guidelines
are permitted.
(f)iiThe rules adopted by the department for the reimbursement of prescription medications and services shall authorize pharmacies to utilize agents or assignees to process claims and act on their behalf pursuant to terms and conditions as agreed upon by pharmacies.
Tuesday, May 17, 2005 SENATE JOURNAL 2395
(g)i[(e)]iiThe commissioner [commission] by rule shall [may] adopt one or more
sets of treatment guidelines, including return-to-work guidelines, and individual
treatment protocols, including protocols for pharmacy benefits. Except as otherwise
provided by this subsection, the treatment guidelines and protocols must be nationally
recognized, scientifically valid, and outcome-based and designed to reduce excessive
or inappropriate medical care while safeguarding necessary medical care. If a
nationally recognized treatment guideline or protocol is not available for adoption by
the commissioner [commission], the commissioner [commission] may adopt another
treatment guideline or protocol as long as it is scientifically valid and outcome-based.
(h)i[(f)]iiThe commissioner [commission] by rule may establish medical policies
or treatment guidelines or protocols relating to necessary treatments for injuries.
(i)i[(g)]iiAny medical policies or guidelines adopted by the commissioner
[commission] must be:
(1)iidesigned to ensure the quality of medical care and to achieve effective medical cost control;
(2)iidesigned to enhance a timely and appropriate return to work; and
(3)iiconsistent with Sections 413.013, 413.020, 413.052, and 413.053.
SECTIONi1.509.iiSection 413.013, Labor Code, is amended to read as follows:
Sec.i413.013.iiPROGRAMS. The commissioner [commission] by rule shall
establish:
(1)iifor health care that is not provided through a provider network under Chapter 408B:
(A)iia program for prospective, concurrent, and retrospective review and resolution of a dispute regarding health care treatments and services; and
(B)i[(2)]iia program for the systematic monitoring of the necessity of
treatments administered and fees charged and paid for medical treatments or services,
including the authorization of prospective, concurrent, or retrospective review under
the medical policies of the commissioner [commission] to ensure that the medical
policies or guidelines are not exceeded;
(2)i[(3)]iia program to detect practices and patterns by insurance carriers,
including carriers who use provider networks, in unreasonably denying authorization
of payment for medical services requested or performed if authorization is required by
the medical policies of the commissioner [commission]; and
(3)i[(4)]iia program to increase the intensity of review for compliance with
the medical policies or fee guidelines for any health care provider that has established
a practice or pattern in charges and treatments inconsistent with the medical policies
and fee guidelines.
SECTIONi1.510.iiSection 413.014, Labor Code, is amended by amending Subsections (b)-(e) and adding Subsection (f) to read as follows:
(b)iiThe commissioner [commission] by rule shall specify which health care
treatments and services provided by an insurance carrier who does not use a provider
network under Chapter 408B require express preauthorization or concurrent review by
the insurance carrier.
(1)iiTreatments and services for a medical emergency do not require express preauthorization.
2396 79th Legislature — Regular Session 71st Day
(2)iiFor preauthorized surgeries under this section, the commissioner shall, by rule, require access to surgically implanted, inserted, or otherwise applied devices or tissues by ensuring reimbursement of reasonable, necessary, and actual costs.
(c)iiThe commissioner [commission] rules adopted under this section must
provide that preauthorization and concurrent review are required at a minimum for:
(1)iispinal surgery, as provided by Section 408A.010 [408.026];
(2)iiwork-hardening or work-conditioning services provided by a health care
facility that is not credentialed by an organization recognized by commissioner
[commission] rules;
(3)iiinpatient hospitalization, including any procedure and length of stay;
(4)iiphysical and occupational therapy;
(5)iioutpatient or ambulatory surgical services, as defined by commissioner
[commission] rule; and
(6)i[(5)]iiany investigational or experimental services or devices.
(d)iiThe insurance carrier is not liable for those specified treatments and services
requiring preauthorization unless preauthorization is sought by the claimant or health
care provider and either obtained from the insurance carrier or ordered by the
department [commission].
(e)iiIf a specified health care treatment or service is preauthorized as provided by this section, that treatment or service is not subject to retrospective review of the medical necessity of the treatment or service.
(f)iiThe department [commission] may not prohibit an insurance carrier and a
health care provider from voluntarily discussing health care treatment and treatment
plans and pharmaceutical services, either prospectively or concurrently, and may not
prohibit an insurance carrier from certifying or agreeing to pay for health care
consistent with those agreements. The insurance carrier is liable for health care
treatment and treatment plans and pharmaceutical services that are voluntarily
preauthorized and may not dispute the certified or agreed-on preauthorized health care
treatment and treatment plans and pharmaceutical services at a later date.
SECTIONi1.511.iiSection 413.0141, Labor Code, is amended to read as follows:
Sec.i413.0141.iiINITIAL PHARMACEUTICAL COVERAGE. (a) The
commissioner [commission may] by rule shall provide that an insurance carrier,
including a carrier who provides health care services through a provider network,
shall provide for payment of specified pharmaceutical services sufficient for the first
seven days following the date of injury if the health care provider requests and
receives verification of insurance coverage and a verbal confirmation of an injury
from the employer or from the insurance carrier [as provided by Section 413.014].
(b)iiThe commissioner rules must [adopted by the commission shall] provide that
an insurance carrier is eligible for reimbursement for pharmaceutical services paid
under this section from the subsequent injury fund in the event the injury is
determined not to be compensable.
SECTIONi1.512.iiSections 413.015(a) and (b), Labor Code, are amended to read as follows:
(a)iiInsurance carriers who do not provide health care services through a provider network under Chapter 408B shall make appropriate payment of charges for medical services provided under this subtitle. An insurance carrier may contract with a
Tuesday, May 17, 2005 SENATE JOURNAL 2397
(b)iiThe commissioner [commission] shall provide by rule for the review and
audit of the payment by insurance carriers subject to this section of charges for
medical services provided under this subtitle to ensure compliance of health care
providers and insurance carriers with the medical policies and fee guidelines adopted
by the commissioner [commission].
SECTIONi1.513.iiSection 413.017, Labor Code, is amended to read as follows:
Sec.i413.017.iiPRESUMPTION OF REASONABLENESS. The following medical services are presumed reasonable:
(1)iimedical services consistent with the medical policies and fee guidelines
adopted by the commissioner [commission]; and
(2)iimedical services that are provided subject to prospective, concurrent, or
retrospective review as required by the medical policies of the commissioner
[commission] and that are authorized by an insurance carrier.
SECTIONi1.514.iiSection 413.018, Labor Code, is amended to read as follows:
Sec.i413.018.iiREVIEW OF MEDICAL CARE; RETURN TO WORK
PROGRAMS [IF GUIDELINES EXCEEDED]. (a) The commissioner [commission]
by rule shall provide for the periodic review of medical care provided in claims in
which guidelines for expected or average return to work time frames are exceeded.
(b)iiThe commissioner [division] shall review the medical treatment provided in
a claim that exceeds the guidelines and may take appropriate action to ensure that
necessary and reasonable care is provided.
(c)iiThe department [commission] shall implement a program to encourage
employers and treating doctors to discuss the availability of modified duty to
encourage the safe and more timely return to work of injured employees. The
department [commission] may require a treating or examining doctor, on the request
of the employer, insurance carrier, or commissioner [commission], to provide a
functional capacity evaluation of an injured employee and to determine the
employee's ability to engage in physical activities found in the workplace or in
activities that are required in a modified duty setting.
(d)iiThe department [commission] shall provide through the department's
[commission's] health and safety information [and medical review outreach] programs
information to employers regarding effective return to work programs.
(e)iiThis section does not require an employer to provide modified duty or an
employee to accept a modified duty assignment. An employee who does not accept an
employer's offer of modified duty determined by the commissioner [commission] to
be a bona fide job offer is subject to Section 408D.053(e) [408.103(e)].
(f)i[(e)]iiThe commissioner [commission] may adopt rules and forms as
necessary to implement this section.
(g)iiThe commissioner shall adopt rules to recognize exemplary return-to-work programs.
2398 79th Legislature — Regular Session 71st Day
(h)iiThe commissioner shall adopt rules that allow insurance carriers to offer incentives to employers who offer exemplary return-to-work programs.
SECTIONi1.515.iiSection 413.020, Labor Code, is amended to read as follows:
Sec.i413.020.iiDEPARTMENT [COMMISSION] CHARGES. The
commissioner [commission] by rule shall establish procedures to enable the
department [commission] to charge:
(1)iian insurance carrier a reasonable fee for access to or evaluation of health care treatment, fees, or charges under this subtitle; and
(2)iia health care provider who exceeds a fee or utilization guideline established under this subtitle or an insurance carrier who unreasonably disputes charges that are consistent with a fee or utilization guideline established under this subtitle a reasonable fee for review of health care treatment, fees, or charges under this subtitle.
SECTIONi1.516.iiSubchapter C, Chapter 413, Labor Code, is amended to read as follows:
SUBCHAPTER C. DISPUTE RESOLUTION REGARDING
MEDICAL BENEFITS
Sec.i413.031.iiMEDICAL DISPUTE: RIGHT TO REVIEW [RESOLUTION].
(a) A party, including a health care provider, is entitled to a review of a medical
service provided or for which authorization of payment is sought if a health care
provider is:
(1)iidenied payment or paid a reduced amount for the medical service rendered;
(2)iidenied authorization for the payment for the service requested or
performed if authorization is required or allowed by this subtitle or commissioner
[commission] rules;
(3)iiordered by the commissioner [commission] to refund a payment
received; or
(4)iiordered to make a payment that was refused or reduced for a medical service rendered.
(b)iiA health care provider who submits a charge in excess of the fee guidelines
or treatment policies is entitled to a review of the medical service to determine if
reasonable medical justification exists for the deviation. A claimant is entitled to a
review of a medical service for which preauthorization is sought by the health care
provider and denied by the insurance carrier. The commissioner [commission] shall
adopt rules to notify claimants of their rights under this subsection.
(c)iiA claimant is entitled to a review of a request for a change of treating doctor under Section 408B.303.
Sec.i413.032.iiINFORMAL DISPUTE RESOLUTION AT CARRIER. (a) Before bringing a dispute regarding medical benefits to the department, the parties to the dispute must try to resolve the dispute among themselves through an informal process conducted by the insurance carrier.
(b)iiIf a party notifies an insurance carrier of an issue requiring dispute resolution under this subchapter, the carrier, not later than the fifth business day after the date of receiving the notice, shall send to the party a letter acknowledging receipt of the notice.
Tuesday, May 17, 2005 SENATE JOURNAL 2399
(c)iiAn insurance carrier shall acknowledge, investigate, and resolve an issue under this section not later than the 30th calendar day after the date the carrier receives a written notice of the issue from the party.
(d)iiThe commissioner shall adopt rules that specify the requirements for documentation of the initial attempt under Subsection (a) to resolve the dispute, including documentation of telephone calls or written correspondence.
Sec.i413.033.iiFEE DISPUTES. [(c)] In resolving disputes over the amount of
payment due for services determined to be medically necessary and appropriate for
treatment of a compensable injury, the role of the department [commission] is to
adjudicate the payment given the relevant statutory provisions and commissioner
[commission] rules. The department [commission] shall publish on its Internet
website its medical dispute decisions, including decisions of independent review
organizations[, and any subsequent decisions by the State Office of Administrative
Hearings]. Before publication, the department [commission] shall redact only that
information necessary to prevent identification of the injured employee [worker].
Sec.i413.034.iiREVIEW BY INDEPENDENT REVIEW ORGANIZATION. (a) If the parties are unable to resolve a dispute regarding medical benefits through the informal dispute resolution process required under Section 413.032, either party may file with the department a request for review by an independent review organization certified under Article 21.58C, Insurance Code.
(b)iiAni[(d)iiA review of the medical necessity of a health care service requiring
preauthorization under Section 413.014 or commission rules under that section shall
be conducted by an] independent review organization shall conduct a review of the
medical necessity of a health care service:
(1)iirequiring preauthorization under Section 413.014 or commissioner rules under that section; or
(2)iiprovided under this chapter or Chapter 408 or 408A.
(c)iiAn independent review organization shall conduct a review under this
section [Article 21.58C, Insurance Code,] in the same manner as reviews of utilization
review decisions [by health maintenance organizations]. It is a defense for the
insurance carrier if the carrier timely complies with the decision of the independent
review organization.
(d)iiIn performing a review of medical necessity, the independent review organization shall consider the department's health care reimbursement policies adopted under Section 413.011 if those policies are raised by one of the parties to the dispute. If the independent review organization's decision is contrary to the department's policies adopted under Section 413.011, the independent review organization must indicate in the decision the specific basis for its divergence in the review of medical necessity. This subsection does not prohibit an independent review organization from considering the payment policies adopted under Section 413.011 in any dispute, regardless of whether those policies are raised by a party to the dispute.
(e)iiIn performing a review of medical necessity, an independent review organization may request that the department order an examination by a designated doctor.
2400 79th Legislature — Regular Session 71st Day
Sec.i413.035.iiINDEPENDENT REVIEW ORGANIZATION DECISION; APPEAL. (a) An independent review organization that conducts a review under this subchapter shall specify the elements on which the decision of the organization is based. At a minimum, the decision must include:
(1)iia list of all medical records and other documents reviewed by the organization;
(2)iia description and the source of the screening criteria or clinical basis used in making the decision;
(3)iian analysis of and explanation for the decision, including the findings and conclusions used to support the decision; and
(4)iia description of the qualifications of each physician or other health care provider who reviews the decision.
(b)iiThe independent review organization shall certify that each physician or other health care provider who reviews the decision certifies that no known conflicts of interest exist between that provider and the injured employee, the injured employee's employer, and any of the treating doctors or insurance carrier health care providers who reviewed the case for decision before referral to the independent review organization.
(c)iiEither party may appeal the decision of the independent review organization to district court for judicial review. Judicial review under this section shall be conducted in the manner provided for judicial review of contested cases under Subchapter G, Chapter 2001, Government Code.
Sec.i413.036.iiALTERNATIVE PROCESS. [(e) Except as provided by
Subsections (d), (f), and (m), a review of the medical necessity of a health care service
provided under this chapter or Chapter 408 shall be conducted by an independent
review organization under Article 21.58C, Insurance Code, in the same manner as
reviews of utilization review decisions by health maintenance organizations. It is a
defense for the insurance carrier if the carrier timely complies with the decision of the
independent review organization.
[(e-1)iiIn performing a review of medical necessity under Subsection (d) or (e),
the independent review organization shall consider the commission's health care
reimbursement policies and guidelines adopted under Section 413.011 if those
policies and guidelines are raised by one of the parties to the dispute. If the
independent review organization's decision is contrary to the commission's policies or
guidelines adopted under Section 413.011, the independent review organization must
indicate in the decision the specific basis for its divergence in the review of medical
necessity. This subsection does not prohibit an independent review organization from
considering the payment policies adopted under Section 413.011 in any dispute,
regardless of whether those policies are raised by a party to the dispute.
[(f)]iiThe commissioner [commission] by rule may prescribe an alternative [shall
specify the appropriate] dispute resolution process for disputes:
(1)iiin which a claimant has paid for medical services and seeks reimbursement; or
(2)iiregarding medical services costing less than the cost of a review of the medical necessity of a health care service by an independent review organization.
Tuesday, May 17, 2005 SENATE JOURNAL 2401
Sec.i413.037.iiPAYMENT OF COSTS. (a) [(g)iiIn performing a review of
medical necessity under Subsection (d) or (e), an independent review organization
may request that the commission order an examination by a designated doctor under
Chapter 408.
[(h)]iiThe insurance carrier shall pay the cost of [the] review by an independent
review organization if the dispute arises in connection with a request for health care
services:
(1)iiprovided through a provider network; or
(2)iithat require preauthorization under Section 413.014 or commissioner
[commission] rules under that section.
(b)i[(i)]iiExcept as provided by Subsection (a) [(h)], the cost of the review shall
be paid by the nonprevailing party.
(c)i[(j)]iiNotwithstanding Subsections (a) and (b) [(h) and (i)], an employee may
not be required to pay any portion of the cost of a review.
(d)iiExcept as otherwise provided by this subsection, the cost of a review under an alternative dispute resolution process under Section 413.036 shall be paid by the nonprevailing party. An employee whose weekly income benefit is less than 75 percent of the average weekly wage may not be required to pay more than half of the cost of such a review.
[(k)iiExcept as provided by Subsection (l), a party to a medical dispute that
remains unresolved after a review of the medical service under this section is entitled
to a hearing. The hearing shall be conducted by the State Office of Administrative
Hearings within 90 days of receipt of a request for a hearing in the manner provided
for a contested case under Chapter 2001, Government Code (the administrative
procedure law). A party who has exhausted the party's administrative remedies under
this subtitle and who is aggrieved by a final decision of 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
contested cases under Subchapter G, Chapter 2001, Government Code.
[(l)iiA party to a medical dispute regarding spinal surgery that remains
unresolved after a review by an independent review organization as provided by
Subsections (d) and (e) is entitled to dispute resolution as provided by Chapter 410.
[(m)iiThe commission by rule may prescribe an alternate dispute resolution
process to resolve disputes regarding medical services costing less than the cost of a
review of the medical necessity of a health care service by an independent review
organization. The cost of a review under the alternate dispute resolution process shall
be paid by the nonprevailing party.]
SECTIONi1.517.iiSections 413.041(a), (b), and (d), Labor Code, are amended to read as follows:
(a)iiEach health care practitioner shall disclose to the department [commission]
the identity of any health care provider in which the health care practitioner, or the
health care provider that employs the health care practitioner, has a financial interest.
The health care practitioner shall make the disclosure in the manner provided by
commissioner [commission] rule.
2402 79th Legislature — Regular Session 71st Day
(b)iiThe commissioner [commission] shall require by rule that a doctor disclose
financial interests in other health care providers [as a condition of registration for the
approved doctor list established under Section 408.023] and shall define "financial
interest" for purposes of this subsection as provided by analogous federal regulations.
The commissioner [commission] by rule shall adopt the federal standards that prohibit
the payment or acceptance of payment in exchange for health care referrals relating to
fraud, abuse, and antikickbacks.
(d)iiThe department [commission] shall publish all final disclosure enforcement
orders issued under this section on the department's [commission's] Internet website.
SECTIONi1.518.iiSection 413.042(a), Labor Code, is amended to read as follows:
(a)iiA health care provider may not pursue a private claim against a workers' compensation claimant for all or part of the cost of a health care service provided to the claimant by the provider unless:
(1)iithe injury is finally adjudicated not compensable under this subtitle; or
(2)iithe employee violates Section 408C.002 [408.022] relating to the
selection of a doctor and the doctor did not know of the violation at the time the
services were rendered.
SECTIONi1.519.iiSection 413.044, Labor Code, is amended to read as follows:
Sec.i413.044.iiSANCTIONS ON DESIGNATED DOCTOR. In addition to or in
lieu of an administrative penalty under Section 415.021 or a sanction imposed under
Section 415.023, the department [commission] may impose sanctions against a person
who serves as a designated doctor under this subtitle, including a designated doctor
who serves under a provider network, [Chapter 408] who, after an evaluation
conducted under Section 413.002(b) [413.002(c)], is determined by the department
[division] to be out of compliance with this subtitle or with rules adopted by the
commissioner [commission] relating to medical policies, fee guidelines, and
impairment ratings.
SECTIONi1.520.iiThe heading to Subchapter E, Chapter 413, Labor Code, is amended to read as follows:
SUBCHAPTER E. IMPLEMENTATION OF DEPARTMENT
[COMMISSION] POWERS AND DUTIES
SECTIONi1.521.iiSection 413.051, Labor Code, is amended to read as follows:
Sec.i413.051.iiCONTRACTS WITH REVIEW ORGANIZATIONS AND HEALTH CARE PROVIDERS. (a) In this section, "health care provider professional review organization" includes an independent review organization.
(b)iiThe department [commission] may contract with a health care provider,
health care provider professional review organization, or other entity to develop,
maintain, or review medical policies or fee guidelines or to review compliance with
the medical policies or fee guidelines.
(c)i[(b)]iiFor purposes of review or resolution of a dispute with an insurance
carrier that does not use a provider network under Chapter 408B, as to compliance
with the medical policies or fee guidelines, the department [commission] may contract
with a health care provider, health care provider professional review organization, or
Tuesday, May 17, 2005 SENATE JOURNAL 2403
(d)i[(c)]iiThe department [commission] may contract with a health care provider,
health care provider professional review organization, or other entity for medical
consultant services, including:
(1)iiindependent medical examinations;
(2)iimedical case reviews; or
(3)iiestablishment of medical policies and fee guidelines.
(e)i[(d)]iiThe commissioner [commission] shall establish standards for contracts
under this section.
[(e)iiFor purposes of this section, "health care provider professional review
organization" includes an independent review organization.]
SECTIONi1.522.iiSection 413.0511, Labor Code, is amended to read as follows:
Sec.i413.0511.iiMEDICAL ADVISOR. (a) The department [commission] shall
employ or contract with a medical advisor, who must be a physician [doctor as that
term is defined by Section 401.011].
(b)iiThe medical advisor shall make recommendations regarding the adoption of rules to:
(1)iidevelop, maintain, and review guidelines as provided by Section 413.011, including rules regarding impairment ratings;
(2)iireview compliance with those guidelines;
(3)iiregulate or perform other acts related to medical benefits as required by
the commissioner [commission];
(4)iiimpose sanctions [or delete doctors from the commission's list of
approved doctors under Section 408.023] for[:
[(A)iiany reason described by Section 408.0231; or
[(B)]iinoncompliance with commissioner [commission] rules;
(5)ii[impose conditions or restrictions as authorized by Section 408.0231(f);
[(6)]iireceive, and share with the medical quality review panel established
under Section 413.0512, confidential information, and other information to which
access is otherwise restricted by law, as provided by Sections 413.0512, 413.0513,
and 413.0514 from the Texas State Board of Medical Examiners, the Texas Board of
Chiropractic Examiners, or other occupational licensing boards regarding a physician,
chiropractor, or other type of doctor [who applies for registration or is registered with
the commission on the list of approved doctors]; and
(6)i[(7)]iidetermine minimal modifications to the reimbursement
methodology and model used by the Medicare system as necessary to meet
occupational injury requirements.
SECTIONi1.523.iiSections 413.0512(a), (c), and (d), Labor Code, are amended to read as follows:
(a)iiThe commissioner, with the advice of the medical advisor, shall establish a
medical quality review panel of health care providers to assist the medical advisor in
performing the duties required under Section 413.0511. The panel is [independent of
the medical advisory committee created under Section 413.005 and is] not subject to
Chapter 2110, Government Code.
2404 79th Legislature — Regular Session 71st Day
(c)iiThe medical quality review panel shall recommend to the medical advisor:
(1)iiappropriate action regarding doctors, other health care providers,
insurance carriers, [and] utilization review agents, independent review organizations,
and provider networks; and
(2)iithe addition or deletion of doctors from the list of [approved doctors
under Section 408.023 or the list of] designated doctors established under Section
408D.102 [408.122].
(d)iiA 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 or a department employee
[commission member] under Section 34.001, Insurance Code [402.010].
SECTIONi1.524.iiSection 413.0513, Labor Code, is amended to read as follows:
Sec.i413.0513.iiCONFIDENTIALITY REQUIREMENTS. (a) Information
collected, assembled, or maintained by or on behalf of the department [commission]
under Section 413.0511 or 413.0512 constitutes an investigation file for purposes of
Section 402.211 [402.092] and may not be disclosed under Section 413.0511 or
413.0512 except as provided by that section.
(b)iiConfidential information, and other information to which access is restricted
by law, developed by or on behalf of the department [commission] under Section
413.0511 or 413.0512 is not subject to discovery or court subpoena in any action
other than:
(1)iian action to enforce this subtitle brought by the department
[commission], an appropriate licensing or regulatory agency, or an appropriate
enforcement authority; or
(2)iia criminal proceeding.
SECTIONi1.525.iiSection 413.0514, Labor Code, is amended to read as follows:
Sec.i413.0514.iiINFORMATION SHARING WITH OCCUPATIONAL
LICENSING BOARDS.ii(a) This section applies only to information held by or for
the department [commission], the Texas State Board of Medical Examiners, and Texas
Board of Chiropractic Examiners that relates to a person who is licensed or otherwise
regulated by any of those state agencies.
(b)iiThe department [commission] and the Texas State Board of Medical
Examiners on request or on its own initiative, may share with each other confidential
information or information to which access is otherwise restricted by law. The
department [commission] and the Texas State Board of Medical Examiners shall
cooperate with and assist each other when either agency is conducting an
investigation by providing information to each other that the sending agency
determines is relevant to the investigation. Except as provided by this section,
confidential information that is shared under this section remains confidential under
law and legal restrictions on access to the information remain in effect. Furnishing
information by the Texas State Board of Medical Examiners to the department
Tuesday, May 17, 2005 SENATE JOURNAL 2405
(c)iiInformation that is received by the department [commission] from the Texas
State Board of Medical Examiners or by the Texas State Board of Medical Examiners
from the department [commission] remains confidential, may not be disclosed by the
department [commission] except as necessary to further the investigation, and shall be
exempt from disclosure under Sections 402.211 [402.092] and 413.0513.
(d)iiThe department [commission] and the Texas Board of Chiropractic
Examiners, on request or on either agency's [its own] initiative, may share with each
other confidential information or information to which access is otherwise restricted
by law. The department [commission] and the Texas Board of Chiropractic Examiners
shall cooperate with and assist each other when either agency is conducting an
investigation by providing information to each other that is relevant to the
investigation. Except as provided by this section, confidential information that is
shared under this section remains confidential under law and legal restrictions on
access to the information remain in effect unless the agency sharing the information
approves use of the information by the receiving agency for enforcement purposes.
Furnishing information by the Texas Board of Chiropractic Examiners to the
department [commission] or by the department [commission] to the Texas Board of
Chiropractic Examiners under this subsection does not constitute a waiver of privilege
or confidentiality as established by law.
(e)iiInformation that is received by the department [commission] from the Texas
Board of Chiropractic Examiners or by the Texas Board of Chiropractic Examiners
from the department remains confidential and may not be disclosed by the department
[commission] except as necessary to further the investigation unless the agency
sharing the information and the agency receiving the information agree to use of the
information by the receiving agency for enforcement purposes.
(f)iiThe department [commission] and the Texas State Board of Medical
Examiners shall provide information to each other on all disciplinary actions taken.
(g)iiThe department [commission] and the Texas Board of Chiropractic
Examiners shall provide information to each other on all disciplinary actions taken.
SECTIONi1.526.iiSection 413.0515, Labor Code, is amended to read as follows:
Sec.i413.0515.iiREPORTS OF PHYSICIAN AND CHIROPRACTOR
VIOLATIONS. (a) If the department [commission] or the Texas State Board of
Medical Examiners discovers an act or omission by a physician that may constitute a
felony, a misdemeanor involving moral turpitude, a violation of state or federal
narcotics or controlled substance law, an offense involving fraud or abuse under the
Medicare or Medicaid program, or a violation of this subtitle, the agency shall report
that act or omission to the other agency.
(b)iiIf the department [commission] or the Texas Board of Chiropractic
Examiners discovers an act or omission by a chiropractor that may constitute a felony,
a misdemeanor involving moral turpitude, a violation of state or federal narcotics or
controlled substance law, an offense involving fraud or abuse under the Medicare or
Medicaid program, or a violation of this subtitle, the agency shall report that act or
omission to the other agency.
2406 79th Legislature — Regular Session 71st Day
SECTIONi1.527.iiSection 413.052, Labor Code, is amended to read as follows:
Sec.i413.052.iiPRODUCTION OF DOCUMENTS; SUBPOENA. The
commissioner [commission] by rule shall establish procedures to enable the
department [commission] to compel the production of documents under this subtitle.
The commissioner shall exercise subpoena powers under this section in the manner
provided by Subchapter C, Chapter 36, Insurance Code.
SECTIONi1.528.iiSection 413.053, Labor Code, is amended to read as follows:
Sec.i413.053.iiSTANDARDS OF REPORTING AND BILLING. The
commissioner [commission] by rule shall establish standards of reporting and billing
governing both form and content.
SECTIONi1.529.iiSection 413.054(a), Labor Code, is amended to read as follows:
(a)iiA person who performs services for the department [commission] 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 or a department employee [commission member] under Section
34.001, Insurance Code [402.010].
SECTIONi1.530.iiSections 413.055(a) and (b), Labor Code, are amended to read as follows:
(a)iiThe commissioner [executive director, as provided by commission rule,] may
enter an interlocutory order for the payment of all or part of medical benefits. The
order may address accrued benefits, future benefits, or both accrued benefits and
future benefits.
(b)iiThe subsequent injury fund shall reimburse an insurance carrier for any
overpayments of benefits made under an order entered under Subsection (a) if the
order is reversed or modified by final arbitration, order, or decision of the
commissioner [commission] or a court. The commissioner [commission] shall adopt
rules to provide for a periodic reimbursement schedule, providing for reimbursement
at least annually.
SECTIONi1.531.iiThe following laws are repealed:
(1)iiSection 413.005, Labor Code;
(2)iiSection 413.006, Labor Code; and
(3)iiSection 413.016, Labor Code.
PART 17. AMENDMENTS TO CHAPTER 414, LABOR CODE
SECTIONi1.551.iiThe heading to Chapter 414, Labor Code, is amended to read as follows:
CHAPTER 414. ENFORCEMENT [DIVISION] OF COMPLIANCE
AND PRACTICE REQUIREMENTS [PRACTICES]
SECTIONi1.552.iiSection 414.002, Labor Code, is amended to read as follows:
Sec.i414.002.iiMONITORING DUTIES. (a) The department [division] shall
monitor for compliance with commissioner [commission] rules, this subtitle, and other
laws relating to workers' compensation the conduct of persons subject to this subtitle[,
other than persons monitored by the division of medical review]. Persons to be
monitored under this chapter include:
(1)iipersons claiming benefits under this subtitle;
(2)iiemployers;
Tuesday, May 17, 2005 SENATE JOURNAL 2407
(3)iiinsurance carriers; [and]
(4)iiattorneys and other representatives of parties;
(5)iihealth care providers;
(6)iiindependent review organizations; and
(7)iiprovider networks.
(b)iiThe department [division] shall monitor conduct described by Sections
415.001, 415.002, and 415.003 and refer persons engaging in that conduct for [to the
division of] hearings.
(c)iiThe department [division] shall monitor payments made to health care
providers on behalf of workers' compensation claimants who receive medical services
to ensure that the payments are made on time as required by Section 408.027.
SECTIONi1.553.iiSection 414.003, Labor Code, is amended to read as follows:
Sec.i414.003.iiCOMPILATION AND USE OF INFORMATION. (a) The
department [division] shall compile and maintain statistical and other information as
necessary to detect practices or patterns of conduct by persons subject to monitoring
under this chapter that:
(1)iiviolate this subtitle or commissioner [commission] rules; or
(2)iiotherwise adversely affect the workers' compensation system of this state.
(b)iiThe commissioner [commission] shall use the information compiled under
this section to impose appropriate penalties and other sanctions under Chapters 415
and 416.
SECTIONi1.554.iiSection 414.004, Labor Code, is amended to read as follows:
Sec.i414.004.iiPERFORMANCE REVIEW OF INSURANCE CARRIERS. (a)
The department [division] shall review regularly the workers' compensation records
of insurance carriers as required to ensure compliance with this subtitle.
(b)iiEach insurance carrier, the carrier's agents, and those with whom the carrier has contracted to provide, review, or monitor services under this subtitle shall:
(1)iicooperate with the department [division];
(2)iimake available to the department [division] any records or other
necessary information; and
(3)iiallow the department [division] access to the information at reasonable
times at the person's offices.
(c)iiThe insurance carrier, other than a governmental entity, shall pay the reasonable expenses, including travel expenses, of an auditor who audits for the department an insurance carrier's workers' compensation records at the office of the insurance carrier.
SECTIONi1.555.iiSection 414.005, Labor Code, is amended to read as follows:
Sec.i414.005.iiWORKERS' COMPENSATION INVESTIGATION UNIT;
FRAUD INVESTIGATIONS. (a) The department [division] shall maintain an
investigation unit to conduct investigations relating to alleged violations of this
subtitle or commissioner [commission] rules adopted under this subtitle[, with
particular emphasis on violations of Chapters 415 and 416].
2408 79th Legislature — Regular Session 71st Day
(b)iiThe department shall conduct investigations of fraud involving participants in the workers' compensation system. In conducting investigations under this subsection, the department may operate under the insurance fraud unit established under Chapter 701, Insurance Code.
(c)iiThe department's duties in conducting and prosecuting fraud investigations under this section are funded through the maintenance tax assessed under Section 403.002.
SECTIONi1.5551.iiChapter 414, Labor Code, is amended by adding Section 414.0055 to read as follows:
Sec.i414.0055.iiDUTY TO REPORT; ADMINISTRATIVE VIOLATION. (a) This section applies only to a person who is:
(1)iian injured employee or other claimant under this subtitle;
(2)iian insurance carrier;
(3)iia doctor or other health care provider who provides health care services regarding a claim for workers' compensation benefits; or
(4)iian employer.
(b)iiA person subject to this section who determines that a fraudulent act has been or is about to be committed by another in conjunction with a workers' compensation claim shall report the information in writing to the department not later than the 30th day after the date the person makes the determination.
(c)iiA person subject to this section commits a violation if the person violates Subsection (b). A violation under this subsection is a Class B administrative violation.
(d)iiThe identity of a person who reports to the department under Subsection (b) is confidential and is not public information under Chapter 552, Government Code.
SECTIONi1.556.iiSection 414.006, Labor Code, is amended to read as follows:
Sec.i414.006.iiREFERRAL TO OTHER AUTHORITIES. For further
investigation or the institution of appropriate proceedings, the department [division]
may refer the persons involved in a case subject to an investigation to [:
[(1)iithe division of hearings; or]
[(2)]iiother appropriate authorities, including licensing agencies, district and
county attorneys, or the attorney general.
SECTIONi1.557.iiSection 414.007, Labor Code, is amended to read as follows:
Sec.i414.007.ii[REVIEW OF REFERRALS FROM DIVISION OF] MEDICAL
REVIEW. The department [division] shall review information [and referrals received
from the division of medical review] concerning alleged violations of this subtitle
regarding the provision of medical benefits and, under Sections 414.005 and 414.006
and Chapters 415 and 416, may conduct investigations, make referrals to other
authorities, and initiate administrative violation proceedings.
SECTIONi1.558.iiSection 414.001, Labor Code, is repealed.
PART 18. AMENDMENTS TO CHAPTER 415, LABOR CODE
SECTIONi1.601.iiSection 415.001, Labor Code, is amended to read as follows:
Sec.i415.001.iiADMINISTRATIVE VIOLATION BY REPRESENTATIVE OF EMPLOYEE OR LEGAL BENEFICIARY. A representative of an employee or legal beneficiary commits an administrative violation if the person wilfully or intentionally:
(1)iifails without good cause to attend a dispute resolution proceeding under
this subtitle [within the commission];
Tuesday, May 17, 2005 SENATE JOURNAL 2409
(2)iiattends a dispute resolution proceeding under this subtitle [within the
commission] without complete authority or fails to exercise authority to effectuate an
agreement or settlement;
(3)iicommits an act of barratry under Section 38.12, Penal Code;
(4)iiwithholds from the employee's or legal beneficiary's weekly benefits or
from advances amounts not authorized to be withheld by the department
[commission];
(5)iienters into a settlement or agreement without the knowledge, consent, and signature of the employee or legal beneficiary;
(6)iitakes a fee or withholds expenses in excess of the amounts authorized by
the department [commission];
(7)iirefuses or fails to make prompt delivery to the employee or legal beneficiary of funds belonging to the employee or legal beneficiary as a result of a settlement, agreement, order, or award;
(8)iiviolates the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas;
(9)iimisrepresents the provisions of this subtitle to an employee, an employer, a health care provider, or a legal beneficiary;
(10)iiviolates a commissioner [commission] rule; or
(11)iifails to comply with this subtitle.
SECTIONi1.602.iiSection 415.002, Labor Code, is amended to read as follows:
Sec.i415.002.iiADMINISTRATIVE VIOLATION BY [AN] INSURANCE
CARRIER. (a) An insurance carrier or its representative commits an administrative
violation if that person wilfully or intentionally:
(1)iimisrepresents a provision of this subtitle to an employee, an employer, a health care provider, or a legal beneficiary;
(2)iiterminates or reduces benefits without substantiating evidence that the action is reasonable and authorized by law;
(3)iiinstructs an employer not to file a document required to be filed with the
department [commission];
(4)iiinstructs or encourages an employer to violate a claimant's right to medical benefits under this subtitle;
(5)iifails to tender promptly full death benefits if a legitimate dispute does not exist as to the liability of the insurance carrier;
(6)iiallows an employer, other than a self-insured employer, to dictate the methods by which and the terms on which a claim is handled and settled;
(7)iifails to confirm medical benefits coverage to a person or facility providing medical treatment to a claimant if a legitimate dispute does not exist as to the liability of the insurance carrier;
(8)iifails, without good cause, to attend a dispute resolution proceeding
under this subtitle [within the commission];
(9)iiattends a dispute resolution proceeding under this subtitle [within the
commission] without complete authority or fails to exercise authority to effectuate
agreement or settlement;
2410 79th Legislature — Regular Session 71st Day
(10)iiadjusts a workers' compensation claim in a manner contrary to license
requirements for an insurance adjuster, including the requirements of Chapter 4101,
Insurance Code [407, Acts of the 63rd Legislature, Regular Session, 1973 (Article
21.07-4, Vernon's Texas Insurance Code)], or commissioner [the] rules [of the State
Board of Insurance];
(11)iifails to process claims promptly in a reasonable and prudent manner;
(12)iifails to initiate or reinstate benefits when due if a legitimate dispute does not exist as to the liability of the insurance carrier;
(13)iimisrepresents the reason for not paying benefits or terminating or reducing the payment of benefits;
(14)iidates documents to misrepresent the actual date of the initiation of benefits;
(15)iimakes a notation on a draft or other instrument indicating that the draft
or instrument represents a final settlement of a claim if the claim is still open and
pending before the department [commission];
(16)iifails or refuses to pay benefits from week to week as and when due directly to the person entitled to the benefits;
(17)iifails to pay an order awarding benefits;
(18)iicontroverts a claim if the evidence clearly indicates liability;
(19)iiunreasonably disputes the reasonableness and necessity of health care;
(20)iiviolates a commissioner [commission] rule; or
(21)iifails to comply with a provision of this subtitle.
(b)iiAn insurance carrier or its representative does not commit an administrative violation under Subsection (a)(6) by allowing an employer to:
(1)iifreely discuss a claim;
(2)iiassist in the investigation and evaluation of a claim; or
(3)iiattend a proceeding [of the commission] and participate at the
proceeding in accordance with this subtitle.
SECTIONi1.603.iiSection 415.003, Labor Code, is amended to read as follows:
Sec.i415.003.iiADMINISTRATIVE VIOLATION BY HEALTH CARE PROVIDER. A health care provider commits an administrative violation if the person wilfully or intentionally:
(1)iisubmits a charge for health care that was not furnished;
(2)iiadministers improper, unreasonable, or medically unnecessary treatment or services;
(3)iimakes an unnecessary referral;
(4)iiviolates the department's [commission's] fee [and treatment] guidelines;
(5)iiviolates a commissioner [commission] rule; or
(6)iifails to comply with a provision of this subtitle.
SECTIONi1.604.iiSections 415.0035(a), (b), (e), and (f), Labor Code, are amended to read as follows:
(a)iiAn insurance carrier or its representative commits an administrative violation if that person:
(1)iifails to submit to the department [commission] a settlement or
agreement of the parties;
Tuesday, May 17, 2005 SENATE JOURNAL 2411
(2)iifails to timely notify the department [commission] of the termination or
reduction of benefits and the reason for that action; or
(3)iidenies preauthorization in a manner that is not in accordance with
Chapter 408B or Section 413.014 or with commissioner rules adopted [by the
commission] under Section 413.014.
(b)iiA health care provider commits an administrative violation if that person:
(1)iifails or refuses to timely file required reports or records; or
(2)iifails to file with the department [commission] the [annual] disclosure
statement required by Section 413.041.
(e)iiAn insurance carrier or health care provider commits an administrative
violation if that person violates this subtitle or a rule, order, or decision of the
commissioner [commission].
(f)iiA subsequent administrative violation under this section, after prior notice to
the insurance carrier or health care provider of noncompliance, is subject to penalties
as provided by Section 415.021. Prior notice under this subsection is not required if
the violation was committed wilfully or intentionally, or if the violation was of a
decision or order of the commissioner [commission].
SECTIONi1.605.iiSection 415.007(a), Labor Code, is amended to read as follows:
(a)iiAn attorney who represents a claimant before the department [commission]
may not lend money to the claimant during the pendency of the workers'
compensation claim.
SECTIONi1.606.iiSection 415.008(e), Labor Code, is amended to read as follows:
(e)iiIf an administrative violation proceeding is pending under this section
against an employee or person claiming death benefits, the department [commission]
may not take final action on the person's benefits.
SECTIONi1.607.iiSections 415.021(a)-(c), Labor Code, are amended to read as follows:
(a)iiThe department [commission] may assess an administrative penalty against a
person who commits an administrative violation. Notwithstanding Subsection (c), the
commissioner [commission] by rule shall adopt a schedule of specific monetary
administrative penalties for specific violations under this subtitle.
(b)iiThe department [commission] may assess an administrative penalty not to
exceed $10,000 and may enter a cease and desist order against a person who:
(1)iicommits repeated administrative violations;
(2)iiallows, as a business practice, the commission of repeated administrative violations; or
(3)iiviolates an order or decision of the commissioner [commission].
(c)iiIn assessing an administrative penalty, the department [commission] shall
consider:
(1)iithe seriousness of the violation, including the nature, circumstances, consequences, extent, and gravity of the prohibited act;
(2)iithe history and extent of previous administrative violations;
(3)iithe demonstrated good faith of the violator, including actions taken to rectify the consequences of the prohibited act;
2412 79th Legislature — Regular Session 71st Day
(4)iithe economic benefit resulting from the prohibited act;
(5)iithe penalty necessary to deter future violations; and
(6)iiother matters that justice may require.
SECTIONi1.608.iiSection 415.023(b), Labor Code, is amended to read as follows:
(b)iiThe commissioner [commission] may adopt rules providing for:
(1)iia reduction or denial of fees;
(2)iipublic or private reprimand by the commissioner [commission];
(3)iisuspension from practice before the department [commission];
(4)iirestriction, suspension, or revocation of the right to receive reimbursement under this subtitle; or
(5)iireferral and petition to the appropriate licensing authority for appropriate disciplinary action, including the restriction, suspension, or revocation of the person's license.
SECTIONi1.609.iiSection 415.024, Labor Code, is amended to read as follows:
Sec.i415.024.iiBREACH OF SETTLEMENT AGREEMENT;
ADMINISTRATIVE VIOLATION. A material and substantial breach of a settlement
agreement that establishes a compliance plan is a Class A administrative violation. In
determining the amount of the penalty, the department [commission] shall consider
the total volume of claims handled by the insurance carrier.
SECTIONi1.610.iiSection 415.031, Labor Code, is amended to read as follows:
Sec.i415.031.iiINITIATION OF ADMINISTRATIVE VIOLATION
PROCEEDINGS. Any person may request the initiation of administrative violation
proceedings by filing a written allegation with the department [director of the division
of compliance and practices].
SECTIONi1.611.iiSection 415.032, Labor Code, is amended to read as follows:
Sec.i415.032.iiNOTICE OF POSSIBLE ADMINISTRATIVE VIOLATION;
RESPONSE. (a) If investigation by the department [division of compliance and
practices] indicates that an administrative violation has occurred, the department
[division] shall notify the person alleged to have committed the violation in writing
of:
(1)iithe charge;
(2)iithe proposed penalty;
(3)iithe right to consent to the charge and the penalty; and
(4)iithe right to request a hearing.
(b)iiNot later than the 20th day after the date on which notice is received, the charged party shall:
(1)iiremit the amount of the penalty to the department [commission]; or
(2)iisubmit to the department [commission] a written request for a hearing.
SECTIONi1.612.iiSection 415.033, Labor Code, is amended to read as follows:
Sec.i415.033.iiFAILURE TO RESPOND. If, without good cause, a charged
party fails to respond as required under Section 415.032, the penalty is due and the
department [commission] shall initiate enforcement proceedings.
SECTIONi1.613.iiSection 415.034(a), Labor Code, is amended to read as follows:
Tuesday, May 17, 2005 SENATE JOURNAL 2413
(a)iiOn the request of the charged party or the commissioner [executive director],
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)].
SECTIONi1.614.iiSections 415.035(b) and (d), Labor Code, are amended to read as follows:
(b)iiIf an administrative penalty is assessed, the person charged shall:
(1)iiforward the amount of the penalty to the department [executive director]
for deposit in an escrow account; or
(2)iipost with the department [executive director] a bond for the amount of
the penalty, effective until all judicial review of the determination is final.
(d)iiIf the court determines that the penalty should not have been assessed or
reduces the amount of the penalty, the department [executive director] shall:
(1)iiremit the appropriate amount, plus accrued interest, if the administrative penalty was paid; or
(2)iirelease the bond.
PART 19. AMENDMENT TO CHAPTER 416, LABOR CODE
SECTIONi1.651.iiSection 416.001, Labor Code, is amended to read as follows:
Sec.i416.001.iiCERTAIN CAUSES OF ACTION PRECLUDED. An action
taken by an insurance carrier under an order of the commissioner [commission or
recommendations of a benefit review officer under Section 410.031, 410.032, or
410.033] may not be the basis of a cause of action against the insurance carrier for a
breach of the duty of good faith and fair dealing.
PART 20. AMENDMENTS TO CHAPTER 417, LABOR CODE
SECTIONi1.701.iiSections 417.001(c) and (d), Labor Code, are amended to read as follows:
(c)iiIf a claimant receives benefits from the subsequent injury fund, the
department [commission] is:
(1)iiconsidered to be the insurance carrier under this section for purposes of those benefits;
(2)iisubrogated to the rights of the claimant; and
(3)iientitled to reimbursement in the same manner as the insurance carrier.
(d)iiThe department [commission] shall remit money recovered under this
section to the comptroller for deposit to the credit of the subsequent injury fund.
SECTIONi1.702.iiSection 417.003(b), Labor Code, is amended to read as follows:
(b)iiAn attorney who represents the claimant and is also to represent the
subrogated insurance carrier shall make a full written disclosure to the claimant before
employment as an attorney by the insurance carrier. The claimant must acknowledge
the disclosure and consent to the representation. A signed copy of the disclosure shall
be furnished to all concerned parties and made a part of the department [commission]
file. A copy of the disclosure with the claimant's consent shall be filed with the
claimant's pleading before a judgment is entered and approved by the court. The
claimant's attorney may not receive a fee under this section to which the attorney is
otherwise entitled under an agreement with the insurance carrier unless the attorney
complies with the requirements of this subsection.
2414 79th Legislature — Regular Session 71st Day
PART 21. ADOPTION OF CHAPTER 419, LABOR CODE
SECTIONi1.751.iiSubtitle A, Title 5, Labor Code, is amended by adding Chapter 419 to read as follows:
CHAPTER 419. MISUSE OF DEPARTMENT NAME
Sec.i419.001.iiDEFINITIONS. (a) In this chapter:
(1)ii"Representation of the department's logo" includes a nonexact representation that is deceptively similar to the logo used by the department.
(2)ii"Representation of the state seal" has the meaning assigned by Section 17.08(a)(2), Business & Commerce Code.
(b)iiA term or representation is "deceptively similar" for purposes of this chapter if:
(1)iia reasonable person would believe that the term or representation is in any manner approved, endorsed, sponsored, authorized by, the same as, or associated with the department, this state, or an agency of this state; or
(2)iithe circumstances under which the term is used could mislead a reasonable person as to its identity.
Sec.i419.002.iiMISUSE OF DEPARTMENT'S NAME OR SYMBOLS PROHIBITED IN RELATION TO WORKERS' COMPENSATION DUTIES OF DEPARTMENT. (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:
(1)iithe words "Texas Department of Insurance," "Department of Insurance," or "Texas Workers' Compensation";
(2)iiany term using both "Texas" and "Workers' Compensation" or any term using both "Texas" and "Workers' Comp";
(3)iithe initials "T.D.I."; or
(4)iiany combination or variation of the words or initials, or any term deceptively similar to the words or initials, described by Subdivisions (1)-(3).
(b)iiA person subject to Subsection (a) may not knowingly use or cause to be used a word, term, or initials described by Subsection (a) alone or in conjunction with:
(1)iithe state seal or a representation of the state seal;
(2)iia picture or map of this state; or
(3)iithe official logo of the department or a representation of the department's logo.
Sec.i419.003.iiRULES. The commissioner may adopt rules relating to the regulation of the use of the department's name and other rules as necessary to implement this chapter.
Sec.i419.004.iiCIVIL PENALTY. (a) A person who violates Section 419.002 or a rule adopted under this chapter is liable for a civil penalty not to exceed $5,000 for each violation.
(b)iiThe attorney general, at the request of the department, shall bring an action to collect a civil penalty under this section in a district court in Travis County.
Sec.i419.005.iiADMINISTRATIVE PENALTY. (a) The department may assess an administrative penalty against a person who violates Section 419.002 or a rule adopted under this chapter.
Tuesday, May 17, 2005 SENATE JOURNAL 2415
(b)iiAn administrative penalty imposed under this section:
(1)iimay not exceed $5,000 for each violation; and
(2)iiis subject to the procedural requirements adopted for administrative penalties imposed under Section 415.021.
Sec.i419.006.iiINJUNCTIVE RELIEF. (a) At the request of the commissioner, the attorney general or a district attorney may bring an action in district court in Travis County to enjoin or restrain a violation or threatened violation of this chapter on a showing that a violation has occurred or is likely to occur.
(b)iiThe department may recover the costs of investigating an alleged violation of this chapter if an injunction is issued.
Sec.i419.007.iiREMEDIES NOT EXCLUSIVE. The remedies provided by this chapter are not exclusive and may be sought in any combination determined by the department as necessary to enforce this chapter.
ARTICLE 2. AMENDMENTS TO SUBTITLE C, TITLE 5, LABOR CODE
PART 1. AMENDMENTS TO CHAPTER 501, LABOR CODE
SECTIONi2.001.iiSection 501.001(1), Labor Code, is amended to read as follows:
(1)ii"Department" ["Commission"] means the Texas Department of
Insurance [Workers' Compensation Commission].
SECTIONi2.002.iiSection 501.002, Labor Code, is amended by amending Subsections (a) and (c) and adding Subsection (a-1) to read as follows:
(a)iiThe following provisions of Subtitles A and B apply to and are included in this chapter except to the extent that they are inconsistent with this chapter:
(1)iiChapter 401, other than Section 401.012 defining "employee";
(2)iiChapter 402;
(3)iiChapter 403, other than Sections 403.001-403.005;
(4)iiChapters 404 and [Chapter] 405;
(5)iiSubchapters B and D through H, Chapter 406, other than Sections 406.071(a), 406.073, and 406.075;
(6)iiChapter 408, other than Sections 408.001(b) and (c);
(7)iiChapters 408A, 408C, 408D, and 408E, except as provided by Subsection (a-1);
(8)iiChapters 409 and 410;
(9)i[(8)]iiSubchapters A and G, Chapter 411, other than Sections 411.003
and 411.004;
(10)i[(9)]iiChapters 412-417; and
(11)i[(10)]iiChapter 451.
(a-1)iiThe office shall provide workers' compensation medical benefits for covered employees through a provider network under Chapter 408B if the commissioner of insurance determines that provision of those benefits through a network is available to the employees and practical for the state. To that extent, Chapter 408B applies to this chapter.
(c)iiFor the purpose of applying the provisions listed by Subsections
[Subsection] (a) and (a-1) to this chapter, "insurer" or "employer" means "state,"
"office," "director," or "state agency," as applicable.
2416 79th Legislature — Regular Session 71st Day
SECTIONi2.003.iiSection 501.026(d), Labor Code, is amended to read as follows:
(d)iiA person entitled to benefits under this section may receive the benefits only
if the person seeks medical attention from a doctor for the injury not later than 48
hours after the occurrence of the injury or after the date the person knew or should
have known the injury occurred. The person shall comply with the requirements of
Section 409.001 by providing notice of the injury to the department [commission] or
the state agency with which the officer or employee under Subsection (b) is
associated.
SECTIONi2.004.iiSections 501.050(a), (b), and (d), Labor Code, are amended to read as follows:
(a)iiIn each case appealed from the department [commission] to a [county or]
district court:
(1)iithe clerk of the court shall mail to the department [commission]:
(A)iinot later than the 20th day after the date the case is filed, a notice containing the style, number, and date of filing of the case; and
(B)iinot later than the 20th day after the date the judgment is rendered, a certified copy of the judgment; and
(2)iithe attorney preparing the judgment shall file the original and a copy of the judgment with the clerk.
(b)iiAn attorney's failure to comply with Subsection (a)(2) does not excuse the
failure of a [county or] district clerk to comply with Subsection (a)(1)(B).
(d)iiA [county or] district clerk who violates this section commits an offense. An
offense under this subsection is a misdemeanor punishable by a fine not to exceed
$250.
PART 2. AMENDMENTS TO CHAPTER 502, LABOR CODE
SECTIONi2.051.iiSection 502.001(1), Labor Code, is amended to read as follows:
(1)ii"Department" ["Commission"] means the Texas Department of
Insurance [Workers' Compensation Commission].
SECTIONi2.052.iiSection 502.002, Labor Code, is amended by amending Subsections (a) and (b) and adding Subsection (a-1) to read as follows:
(a)iiThe following provisions of Subtitle A apply to and are included in this chapter except to the extent that they are inconsistent with this chapter:
(1)iiChapter 401, other than Section 401.012 defining "employee";
(2)iiChapter 402;
(3)iiChapter 403, other than Sections 403.001-403.005;
(4)iiChapters 404 and [Chapter] 405;
(5)iiSections 406.031-406.033; Subchapter D, Chapter 406; Sections 406.092 and 406.093;
(6)iiChapter 408, other than Sections 408.001(b) and (c);
(7)iiChapters 408A, 408C, 408D, and 408E, except as provided by Subsection (a-1);
(8)iiChapters 409 and 410;
(9)i[(8)]iiSubchapters A and G, Chapter 411, other than Sections 411.003
and 411.004; and
Tuesday, May 17, 2005 SENATE JOURNAL 2417
(10)i[(9)]iiChapters 412-417.
(a-1)iiEach institution shall provide workers' compensation medical benefits for the institution's employees through a provider network under Chapter 408B if the commissioner of insurance determines that provision of those benefits through a network is available to the employees and practical for the state. To that extent, Chapter 408B applies to this chapter.
(b)iiFor the purpose of applying the provisions listed by Subsections
[Subsection] (a) and (a-1) to this chapter, "employer" means "the institution."
SECTIONi2.053.iiSection 502.041, Labor Code, is amended to read as follows:
Sec.i502.041.iiEXHAUSTION OF ANNUAL AND SICK LEAVE.ii(a) An
employee may elect to use accrued sick leave before receiving income benefits. If an
employee elects to use sick leave, the employee is not entitled to income benefits
under this chapter until the employee has exhausted the employee's accrued sick leave
[institution may provide that an injured employee may remain on the payroll until the
employee's earned annual and sick leave is exhausted].
(b)iiAn employee may elect to use all or any number of weeks of accrued annual
leave after the employee's accrued sick leave is exhausted. If an employee elects to
use annual leave, the employee is not entitled to income benefits under this chapter
until the elected number of weeks of leave have been exhausted. [While an injured
employee remains on the payroll under Subsection (a), medical services remain
available to the employee, but workers' compensation benefits do not accrue or
become payable to the injured employee.]
SECTIONi2.054.iiThe heading to Section 502.063, Labor Code, is amended to read as follows:
Sec.i502.063.iiCERTIFIED COPIES OF [COMMISSION] DOCUMENTS.
SECTIONi2.055.iiSections 502.063(a) and (c), Labor Code, are amended to read as follows:
(a)iiThe department [commission] shall furnish a certified copy of an order,
award, decision, or paper on file in the department's [commission's] office to a person
entitled to the copy on written request and payment of the fee for the copy. The fee is
the same as that charged for similar services by the secretary of state's office.
(c)iiA fee or salary may not be paid to a department [member or] employee [of
the commission] for making a copy under Subsection (a) that exceeds the fee charged
for the copy.
SECTIONi2.056.iiSection 502.065, Labor Code, is amended to read as follows:
Sec.i502.065.iiREPORTS OF INJURIES. (a) In addition to a report of an injury
filed with the department [commission] under Section 409.005(a), an institution shall
file a supplemental report that contains:
(1)iithe name, age, sex, and occupation of the injured employee;
(2)iithe character of work in which the employee was engaged at the time of the injury;
(3)iithe place, date, and hour of the injury; and
(4)iithe nature and cause of the injury.
(b)iiThe institution shall file the supplemental report on a form prescribed by the
commissioner of insurance [obtained for that purpose]:
(1)iion the termination of incapacity of the injured employee; or
2418 79th Legislature — Regular Session 71st Day
(2)iiif the incapacity extends beyond 60 days.
SECTIONi2.057.iiSections 502.066(a) and (e), Labor Code, are amended to read as follows:
(a)iiThe department [commission] may require an employee who claims to have
been injured to submit to an examination by the department [commission] or a person
acting under the department's [commission's] authority at a reasonable time and place
in this state.
(e)iiThe institution shall pay the fee set by the department for the services
[commission] of a physician or chiropractor selected by the employee under
Subsection (b) or (d).
SECTIONi2.058.iiSection 502.067(a), Labor Code, is amended to read as follows:
(a)iiThe commissioner of insurance [commission] may order or direct the
institution to reduce or suspend the compensation of an injured employee who:
(1)iipersists in insanitary or injurious practices that tend to imperil or retard the employee's recovery; or
(2)iirefuses to submit to medical, surgical, chiropractic, or other remedial treatment recognized by the state that is reasonably essential to promote the employee's recovery.
SECTIONi2.059.iiSection 502.068, Labor Code, is amended to read as follows:
Sec.i502.068.iiPOSTPONEMENT OF HEARING. If an injured employee is
receiving benefits under this chapter and the institution is providing hospitalization,
medical treatment, or chiropractic care to the employee, the department [commission]
may postpone the hearing on the employee's claim. An appeal may not be taken from
an [a commission] order of the commissioner of insurance under this section.
SECTIONi2.060.iiSection 502.069, Labor Code, is amended to read as follows:
Sec.i502.069.iiNOTICE OF APPEAL; NOTICE OF TRIAL COURT
JUDGMENT; OFFENSE. (a) In each case appealed from the department
[commission] to a [county or] district court:
(1)iithe clerk of the court shall mail to the department [commission]:
(A)iinot later than the 20th day after the date the case is filed, a notice containing the style, number, and date of filing of the case; and
(B)iinot later than the 20th day after the date the judgment is rendered, a certified copy of the judgment; and
(2)iithe attorney preparing the judgment shall file the original and a copy of the judgment with the clerk.
(b)iiAn attorney's failure to comply with Subsection (a)(2) does not excuse the
failure of a [county or] district clerk to comply with Subsection (a)(1)(B).
(c)iiThe duties of a [county or] district clerk under Subsection (a)(1) are part of
the clerk's ex officio duties, and the clerk is not entitled to a fee for the services.
(d)iiA [county or] district clerk who violates this section commits an offense. An
offense under this section is a misdemeanor punishable by a fine not to exceed $250.
PART 3. AMENDMENTS TO CHAPTER 503, LABOR CODE
SECTIONi2.101.iiSection 503.001(1), Labor Code, is amended to read as follows:
Tuesday, May 17, 2005 SENATE JOURNAL 2419
(1)ii"Department" ["Commission"] means the Texas Department of
Insurance [Workers' Compensation Commission].
SECTIONi2.102.iiSection 503.002, Labor Code, is amended by amending Subsections (a) and (b) and adding Subsection (a-1) to read as follows:
(a)iiThe following provisions of Subtitle A apply to and are included in this chapter except to the extent that they are inconsistent with this chapter:
(1)iiChapter 401, other than Section 401.012 defining "employee";
(2)iiChapter 402;
(3)iiChapter 403, other than Sections 403.001-403.005;
(4)iiChapters 404 and [Chapter] 405;
(5)iiSections 406.031-406.033; Subchapter D, Chapter 406; Sections 406.092 and 406.093;
(6)iiChapter 408, other than Sections 408.001(b) and (c);
(7)iiChapters 408A, 408C, 408D, and 408E, except as provided by Subsection (a-1);
(8)iiChapters 409 and 410;
(9)i[(8)]iiSubchapters A and G, Chapter 411, other than Sections 411.003
and 411.004; and
(10)i[(9)]iiChapters 412-417.
(a-1)iiEach institution shall provide workers' compensation medical benefits for the institution's employees through a provider network under Chapter 408B if the commissioner of insurance determines that provision of those benefits through a network is available to the employees and practical for the state. To that extent, Chapter 408B applies to this chapter.
(b)iiFor the purpose of applying the provisions listed by Subsections
[Subsection] (a) and (a-1) to this chapter, "employer" means "the institution."
SECTIONi2.103.iiSection 503.041, Labor Code, is amended to read as follows:
Sec.i503.041.iiEXHAUSTION OF ANNUAL AND SICK LEAVE.ii(a) An
employee may elect to use accrued sick leave before receiving income benefits. If an
employee elects to use sick leave, the employee is not entitled to income benefits
under this chapter until the employee has exhausted the employee's accrued sick
leave. [An institution may provide that an injured employee may remain on the
payroll until the employee's earned annual and sick leave is exhausted.]
(b)iiAn employee may elect to use all or any number of weeks of accrued annual
leave after the employee's accrued sick leave is exhausted. If an employee elects to
use annual leave, the employee is not entitled to income benefits under this chapter
until the elected number of weeks of leave have been exhausted. [While an injured
employee remains on the payroll under Subsection (a), the employee is entitled to
medical benefits but income benefits do not accrue.]
SECTIONi2.104.iiThe heading to Section 503.063, Labor Code, is amended to read as follows:
Sec.i503.063.iiCERTIFIED COPIES OF [COMMISSION] DOCUMENTS.
SECTIONi2.105.iiSections 503.063(a) and (c), Labor Code, are amended to read as follows:
2420 79th Legislature — Regular Session 71st Day
(a)iiThe department [commission] shall furnish a certified copy of an order,
award, decision, or paper on file in the department's [commission's] office to a person
entitled to the copy on written request and payment of the fee for the copy. The fee is
the same as that charged for similar services by the secretary of state's office.
(c)iiA fee or salary may not be paid to a department [member or] employee [of
the commission] for making a copy under Subsection (a) that exceeds the fee charged
for the copy.
SECTIONi2.106.iiSection 503.065, Labor Code, is amended to read as follows:
Sec.i503.065.iiREPORTS OF INJURIES. (a) In addition to a report of an injury
filed with the department [commission] under Section 409.005(a), an institution shall
file a supplemental report that contains:
(1)iithe name, age, sex, and occupation of the injured employee;
(2)iithe character of work in which the employee was engaged at the time of the injury;
(3)iithe place, date, and hour of the injury; and
(4)iithe nature and cause of the injury.
(b)iiThe institution shall file the supplemental report on a form prescribed by the
commissioner of insurance [obtained for that purpose]:
(1)iion the termination of incapacity of the injured employee; or
(2)iiif the incapacity extends beyond 60 days.
SECTIONi2.107.iiSections 503.066(a) and (e), Labor Code, are amended to read as follows:
(a)iiThe department [commission] may require an employee who claims to have
been injured to submit to an examination by the department [commission] or a person
acting under the department's [commission's] authority at a reasonable time and place
in this state.
(e)iiThe institution shall pay the fee, as set by the department [commission], for
the services of a physician selected by the employee under Subsection (b) or (d).
SECTIONi2.108.iiSection 503.067(a), Labor Code, is amended to read as follows:
(a)iiThe commissioner of insurance [commission] may order or direct the
institution to reduce or suspend the compensation of an injured employee who:
(1)iipersists in insanitary or injurious practices that tend to imperil or retard the employee's recovery; or
(2)iirefuses to submit to medical, surgical, or other remedial treatment recognized by the state that is reasonably essential to promote the employee's recovery.
SECTIONi2.109.iiSection 503.068, Labor Code, is amended to read as follows:
Sec.i503.068.iiPOSTPONEMENT OF HEARING. If an injured employee is
receiving benefits under this chapter and the institution is providing hospitalization or
medical treatment to the employee, the department [commission] may postpone the
hearing on the employee's claim. An appeal may not be taken from an [a commission]
order of the commissioner of insurance under this section.
SECTIONi2.110.iiSection 503.069, Labor Code, is amended to read as follows:
Tuesday, May 17, 2005 SENATE JOURNAL 2421
Sec.i503.069.iiNOTICE OF APPEAL; NOTICE OF TRIAL COURT
JUDGMENT; OFFENSE. (a) In each case appealed from the department
[commission] to a [county or] district court:
(1)iithe clerk of the court shall mail to the department [commission]:
(A)iinot later than the 20th day after the date the case is filed, a notice containing the style, number, and date of filing of the case; and
(B)iinot later than the 20th day after the date the judgment is rendered, a certified copy of the judgment; and
(2)iithe attorney preparing the judgment shall file the original and a copy of the judgment with the clerk.
(b)iiAn attorney's failure to comply with Subsection (a)(2) does not excuse the
failure of a [county or] district clerk to comply with Subsection (a)(1)(B).
(c)iiThe duties of a [county or] district clerk under Subsection (a)(1) are part of
the clerk's ex officio duties, and the clerk is not entitled to a fee for the services.
(d)iiA [county or] district clerk who violates this section commits an offense. An
offense under this section is a misdemeanor punishable by a fine not to exceed $250.
SECTIONi2.111.iiSection 503.070(a), Labor Code, is amended to read as follows:
(a)iiA party who does not consent to abide by the final decision of the
department [commission] shall file notice with the department [commission] as
required by Section 410.253 and bring suit in the county in which the injury occurred
to set aside the final decision of the department [commission].
PART 4. AMENDMENTS TO CHAPTER 504, LABOR CODE
SECTIONi2.151.iiSection 504.001, Labor Code, is amended by amending Subdivision (1) and adding Subdivision (4) to read as follows:
(1)ii"Department" ["Commission"] means the Texas Department of
Insurance [Workers' Compensation Commission].
(4)ii"Pool" means two or more political subdivisions that collectively self-insure under an interlocal contract entered into under Chapter 791, Government Code.
SECTIONi2.152.iiSection 504.002, Labor Code, is amended by amending Subsections (a) and (b) and adding Subsection (a-1) to read as follows:
(a)iiThe following provisions of Subtitles A and B apply to and are included in this chapter except to the extent that they are inconsistent with this chapter:
(1)iiChapter 401, other than Section 401.011(18) defining "employer" and Section 401.012 defining "employee";
(2)iiChapter 402;
(3)iiChapter 403, other than Sections 403.001-403.005;
(4)iiSections 406.006-406.009 and Subchapters B and D-G, Chapter 406, other than Sections 406.033, 406.034, 406.035, 406.091, and 406.096;
(5)iiChapter 408, other than Sections 408.001(b) and (c);
(6)iiChapters 408A, 408C, 408D, and 408E, except as provided by Subsection (a-1);
(7)iiChapters 409-412 [417]; [and]
(8)iiChapter 413, except as provided by Section 504.011;
(9)iiChapters 414-417; and
2422 79th Legislature — Regular Session 71st Day
(10)i[(7)]iiChapter 451.
(a-1)iiChapter 408B applies to this chapter as provided by Section 504.011.
(b)iiFor the purpose of applying the provisions listed by Subsections
[Subsection] (a) and (a-1) to this chapter, "employer" means "political subdivision."
SECTIONi2.153.iiSection 504.011, Labor Code, is amended to read as follows:
Sec.i504.011.iiMETHOD OF PROVIDING COVERAGE. (a) A political
subdivision shall provide [extend] workers' compensation benefits to its employees
by:
(1)iibecoming a self-insurer;
(2)iiproviding insurance under a workers' compensation insurance policy; or
(3)iientering into an interlocal agreement with other political subdivisions providing for self-insurance.
(b)iiA political subdivision shall provide workers' compensation medical benefits for the political subdivision's employees through a provider network under Chapter 408B if the governing body of the political subdivision determines that provision of those benefits through a network is available to the employees and practical for the political subdivision. A political subdivision may enter into interlocal agreements and other agreements with other political subdivisions to establish or contract with provider networks under this section.
(c)iiIf a political subdivision or a pool determines that a provider network under Chapter 408B is not available or practical for the political subdivision or pool, the political subdivision or pool may provide medical benefits to its injured employees or to the injured employees of the members of the pool:
(1)iiin the manner provided by Chapter 408, other than Sections 408.001(b) and (c) and Section 408.002, and by Subchapters B and C, Chapter 413; or
(2)iiby directly contracting with health care providers or by contracting through a health benefits pool established under Chapter 172, Local Government Code.
(d)iiThe provisions of Chapters 408 and 408A relating to medical benefits, Chapter 408B, and Chapter 413, do not apply if the political subdivision or pool provides medical benefits under Subsection (c)(2).
(e)iiIf the political subdivision or pool provides medical benefits under Subsection (c)(2), the following standards apply:
(1)iithe political subdivision or pool must ensure that workers' compensation medical benefits are reasonably available to all injured employees of the political subdivision within a designated service area;
(2)iithe political subdivision or pool must ensure that all necessary health care services are provided in a manner that will ensure the availability of and accessibility to adequate numbers of health care providers, specialty care providers, and health care facilities;
(3)iithe political subdivision or pool must have an internal review process for resolving complaints relating to the manner of providing medical benefits, including an appeal to the governing body or its designee and review by an independent review organization;
Tuesday, May 17, 2005 SENATE JOURNAL 2423
(4)iithe political subdivision or pool must establish reasonable procedures for transition of injured employees to contracting health care providers and for continuity of treatment, including:
(A)iinotice of impending termination of a provider's contract; and
(B)iimaintenance of a current list of contracting providers;
(5)iithe political subdivision or pool shall provide for emergency care, as defined by Section 401.011, if:
(A)iian injured employee is not able to reasonably reach a contracting provider; and
(B)iithe care is for:
(i)iimedical screening or another evaluation that is necessary to determine whether a medical emergency condition exists;
(ii)iinecessary emergency care services including treatment and stabilization; and
(iii)iiservices originating in a hospital emergency facility following treatment or stabilization of an emergency medical condition;
(6)iiprospective or concurrent review of the medical necessity and appropriateness of health care services must comply with Article 21.58A, Insurance Code; and
(7)iithe political subdivision or pool shall continue to report data to the appropriate agency as required by Subtitle A.
(f)iiThis section may not be construed as waiving sovereign immunity or creating a new cause of action.
SECTIONi2.154.iiSections 504.016(d) and (e), Labor Code, are amended to read as follows:
(d)iiA joint insurance fund created under this section may provide to the
department [Texas Department of Insurance] loss data in the same manner as an
insurance company writing workers' compensation insurance. The department [State
Board of Insurance] shall use the loss data as provided by Subchapter D, Chapter 5,
Insurance Code.
(e)iiExcept as provided by Subsection (d), a joint insurance fund created under
this section is not considered insurance for purposes of any state statute and is not
subject to [State Board of Insurance] rules adopted by the commissioner of insurance.
SECTIONi2.155.iiSection 504.017, Labor Code, is amended to read as follows:
Sec.i504.017.iiFEDERAL AND STATE FUNDED TRANSPORTATION ENTITIES. An entity is eligible to participate under Section 504.016 or Chapter 791 or 2259, Government Code, if the entity provides transportation subsidized in whole or in part by and provided to clients of:
(1)iithe [Texas] Department of [on] Aging and Disability Services;
(2)iithe Department of Assistive and Rehabilitative Services [Texas
Commission on Alcohol and Drug Abuse];
(3)iithe Department of State Health Services [Texas Commission for the
Blind];
(4)iithe Texas Cancer Council;
(5)iithe Department of Family and Protective Services [Texas Commission
for the Deaf and Hard of Hearing];
2424 79th Legislature — Regular Session 71st Day
(6)iithe Texas Department of Housing and Community Affairs;
(7)iithe Health and Human Services Commission [Texas Department of
Human Services]; or
(8)ii[the Texas Department of Mental Health and Mental Retardation;
[(9)iithe Texas Rehabilitation Commission; or
[(10)]iithe Texas Youth Commission.
SECTIONi2.156.iiThe heading to Section 504.018, Labor Code, is amended to read as follows:
Sec.i504.018.iiNOTICE TO DEPARTMENT [COMMISSION] AND
EMPLOYEES; EFFECT ON COMMON-LAW OR STATUTORY LIABILITY.
SECTIONi2.157.iiSection 504.018(a), Labor Code, is amended to read as follows:
(a)iiA political subdivision shall notify the department [commission] of the
method by which the [its] employees of the political subdivision will receive benefits,
the approximate number of employees covered, and the estimated amount of payroll.
PART 5. AMENDMENTS TO CHAPTER 505, LABOR CODE
SECTIONi2.201.iiSection 505.002, Labor Code, is amended by amending Subsections (a) and (b) and adding Subsection (a-1) to read as follows:
(a)iiThe following provisions of Subtitles A and B apply to and are included in this chapter except to the extent that they are inconsistent with this chapter:
(1)iiChapter 401, other than Section 401.012, defining "employee";
(2)iiChapter 402;
(3)iiChapter 403, other than Sections 403.001-403.005;
(4)iiChapters 404 and [Chapter] 405;
(5)iiSubchapters B, D, E, and H, Chapter 406, other than Sections 406.071-406.073, and 406.075;
(6)iiChapter 408, other than Sections 408.001(b) and (c);
(7)iiChapters 408A, 408C, 408D, and 408E, except as provided by Subsection (a-1);
(8)iiChapters 409 and 410;
(9)i[(8)]iiSubchapters A and G, Chapter 411, other than Sections 411.003
and 411.004;
(10)i[(9)]iiChapters 412-417; and
(11)i[(10)]iiChapter 451.
(a-1)iiThe department shall provide workers' compensation medical benefits for the department's employees through a provider network under Chapter 408B if the commissioner of insurance determines that provision of those benefits through a network is available to the employees and practical for the state. To that extent, Chapter 408B applies to this chapter.
(b)iiFor the purpose of applying the provisions listed by Subsections
[Subsection] (a) and (a-1) to this chapter, "employer" means "department."
SECTIONi2.202.iiThe heading to Section 505.053, Labor Code, is amended to read as follows:
Sec.i505.053.iiCERTIFIED COPIES OF [COMMISSION] DOCUMENTS.
SECTIONi2.203.iiSections 505.053(a) and (c), Labor Code, are amended to read as follows:
Tuesday, May 17, 2005 SENATE JOURNAL 2425
(a)iiThe Texas Department of Insurance [commission] shall furnish a certified
copy of an order, award, decision, or paper on file in that department's [the
commission's] office to a person entitled to the copy on written request and payment
of the fee for the copy. The fee shall be the same as that charged for similar services
by the secretary of state's office.
(c)iiA fee or salary may not be paid to an employee of the Texas Department of
Insurance [a person in the commission] for making the copies that exceeds the fee
charged for the copies.
SECTIONi2.204.iiSection 505.054(d), Labor Code, is amended to read as follows:
(d)iiA physician designated under Subsection (c) who conducts an examination
shall file with the department a complete transcript of the examination on a form
furnished by the department. The department shall maintain all reports under this
subsection as part of the department's permanent records. A report under this
subsection is admissible in evidence before the Texas Department of Insurance
[commission] and in an appeal from a final award or ruling of the Texas Department
of Insurance [commission] in which the individual named in the examination is a
claimant for compensation under this chapter. A report under this subsection that is
admitted is prima facie evidence of the facts stated in the report.
SECTIONi2.205.iiSection 505.055, Labor Code, is amended to read as follows:
Sec.i505.055.iiREPORTS OF INJURIES. (a) A report of an injury filed with the
Texas Department of Insurance [commission] under Section 409.005, in addition to
the information required by [commission] rules of the commissioner of insurance,
must contain:
(1)iithe name, age, sex, and occupation of the injured employee;
(2)iithe character of work in which the employee was engaged at the time of the injury;
(3)iithe place, date, and hour of the injury; and
(4)iithe nature and cause of the injury.
(b)iiIn addition to subsequent reports of an injury filed with the Texas
Department of Insurance [commission] under Section 409.005(i) [409.005(e)], the
department shall file a subsequent report on a form prescribed by the commissioner of
insurance [obtained for that purpose]:
(1)iion the termination of incapacity of the injured employee; or
(2)iiif the incapacity extends beyond 60 days.
SECTIONi2.206.iiSections 505.056(a) and (d), Labor Code, are amended to read as follows:
(a)iiThe Texas Department of Insurance [commission] may require an employee
who claims to have been injured to submit to an examination by that department [the
commission] or a person acting under the [commission's] authority of the
commissioner of insurance at a reasonable time and place in this state.
(d)iiOn the request of an employee or the department, the employee or the
department is entitled to have a physician selected by the employee or the department
present to participate in an examination under Subsection (a) or Section 408A.002
[408.004]. The employee is entitled to have a physician selected by the employee
2426 79th Legislature — Regular Session 71st Day
SECTIONi2.207.iiSection 505.057(a), Labor Code, is amended to read as follows:
(a)iiThe Texas Department of Insurance [commission] may order or direct the
department to reduce or suspend the compensation of an injured employee if the
employee:
(1)iipersists in insanitary or injurious practices that tend to imperil or retard the employee's recovery; or
(2)iirefuses to submit to medical, surgical, or other remedial treatment recognized by the state that is reasonably essential to promote the employee's recovery.
SECTIONi2.208.iiSection 505.058, Labor Code, is amended to read as follows:
Sec.i505.058.iiPOSTPONEMENT OF HEARING. If an injured employee is
receiving benefits under this chapter and the department is providing hospitalization
or medical treatment to the employee, the Texas Department of Insurance
[commission] may postpone the hearing of the employee's claim. An appeal may not
be taken from an [a commission] order of the commissioner of insurance under this
section.
SECTIONi2.209.iiSection 505.059, Labor Code, is amended to read as follows:
Sec.i505.059.iiNOTICE OF APPEAL; NOTICE OF TRIAL COURT
JUDGMENT; OFFENSE. (a) In each case appealed from the Texas Department of
Insurance [commission] to a [county or] district court:
(1)iithe clerk of the court shall mail to the Texas Department of Insurance
[commission]:
(A)iinot later than the 20th day after the date the case is filed, a notice containing the style, number, and date of filing of the case; and
(B)iinot later than the 20th day after the date the judgment is rendered, a certified copy of the judgment; and
(2)iithe attorney preparing the judgment shall file the original and a copy of the judgment with the clerk.
(b)iiAn attorney's failure to comply with Subsection (a)(2) does not excuse the
failure of a [county or] district clerk to comply with Subsection (a)(1)(B).
(c)iiThe duties of a [county or] district clerk under Subsection (a)(1) are part of
the clerk's ex officio duties, and the clerk is not entitled to a fee for the services.
(d)iiA [county or] district clerk who violates this section commits an offense. An
offense under this section is a misdemeanor punishable by a fine not to exceed $250.
SECTIONi2.210.iiSection 505.001(a)(1), Labor Code, is repealed.
ARTICLE 2A. ALTERNATIVE COMPENSATION PILOT PROGRAM
SECTIONi2A.001.iiTitle 5, Labor Code, is amended by adding Subtitle D to read as follows:
Tuesday, May 17, 2005 SENATE JOURNAL 2427
SUBTITLE D. ALTERNATIVE COMPENSATION PROGRAMS
CHAPTER 551. PILOT PROGRAM ON USE OF INSURANCE POLICY
TO PROVIDE MEDICAL AND INCOME BENEFITS
SUBCHAPTER A. GENERAL PROVISIONS
Sec.i551.001.iiDEFINITIONS. In this chapter:
(1)ii"Alternative benefit plan" means a plan of health care benefits and income benefits offered under this chapter by an employer to an employee who sustains an injury in the course and scope of employment.
(2)ii"Commissioner" means the commissioner of insurance.
(3)ii"Course and scope of employment" has the meaning assigned by Section 401.011(12).
(4)ii"Department" means the Texas Department of Insurance.
(5)ii"Employer" means a person who employs one or more employees.
(6)ii"Employee" means a person in the service of another under any contract of hire, whether express or implied or oral or written. The term includes an employee employed in the usual course and scope of the employer's business who is directed by the employer to perform services temporarily outside the usual course and scope of the employer's business. The term does not include an independent contractor or the employee of an independent contractor.
(7)ii"Group health insurance policy" means a group, blanket, or franchise insurance policy that provides benefits for health care services resulting from accident, illness, or disease. For purposes of this chapter, the term includes a group hospital service contract or a group subscriber contract.
(8)ii"Program" means the alternative benefit plan pilot program established under this chapter.
(9)ii"Qualified insurance policy" means a group health insurance policy approved by the commissioner as provided by Section 551.052.
Sec.i551.002.iiEXPIRATION. The program is abolished and this chapter expires effective September 1, 2009.
[Sections 551.003-551.050 reserved for expansion]
SUBCHAPTER B. GENERAL POWERS AND DUTIES OF
COMMISSIONER AND DEPARTMENT
Sec.i551.051.iiEFFECT OF EMPLOYER PARTICIPATION. An employer who elects to participate in the program under this chapter is considered a subscribing employer to the workers' compensation system of this state for all purposes under Subtitle A.
Sec.i551.052.iiIMPLEMENTATION OF PROGRAM; POLICY APPROVAL PROCESS. (a) The commissioner shall develop and operate a pilot program under which an employer may offer an alternative benefit plan to the employer's employees through a qualified insurance policy that:
(1)iiprovides health care benefits to the employees, including benefits for an injury sustained by an employee in the course and scope of the employee's employment; and
(2)iiqualifies as provision of medical benefits for purposes of workers' compensation insurance coverage as described by Subtitle A.
2428 79th Legislature — Regular Session 71st Day
(b)iiBefore an employer may use a qualified insurance policy for employee health care benefits under this chapter, the employer must submit the policy to the department for approval in the manner prescribed by the commissioner, accompanied by any filing fee set by the commissioner by rule.
(c)iiThe commissioner by rule shall adopt guidelines for the approval of policies submitted to the department under this section. The guidelines must require that the policy include limits and coverages for health care services, including hospitalization, that are at least equivalent to the limits and coverages applicable to the medical benefits provided to an employee covered under Subtitle A.
(d)iiThe commissioner shall review a policy submitted under Subsection (b) not later than the 30th day after the date the policy is submitted to the department. If the commissioner disapproves a policy, the department shall notify the employer who submitted the policy not later than the fifth day after the date on which the policy is disapproved.
(e)iiIf the commissioner approves the policy, the department shall notify the employer not later than the 10th day after the date of the final approval. The employer may begin using the policy for benefits under this chapter as of the date of the final approval.
Sec.i551.053.iiCOVERAGE FOR INCOME BENEFITS; APPROVAL. (a) If a qualified insurance policy is approved under Section 551.052, the employer may obtain an insurance policy from any insurer authorized to engage in the business of workers' compensation insurance in this state to provide coverage for each employee of the employer, or the legal beneficiary of a deceased employee, against a loss caused by:
(1)iiany loss of wages incurred as a result of an accident, illness, or disease, regardless of whether the accident, illness, or disease is caused by or directly related to the employee's employment; or
(2)iithe death of the employee.
(b)iiThe employer must submit the indemnity policy to the department for approval in the manner prescribed for approval of a policy under Section 551.052.
(c)iiThe commissioner by rule shall adopt guidelines for the approval of a policy submitted to the department under this section. The guidelines must require that the policy provide coverage for:
(1)iiincome benefits in the manner provided by Chapter 408D; and
(2)iideath and burial benefits in the manner provided by Chapter 408E.
Sec.i551.054.iiRULEMAKING. The commissioner shall adopt rules as necessary to implement the duties of the department under this chapter.
Sec.i551.055.iiREPORT TO LEGISLATURE. Not later than December 1 of each year, the commissioner shall submit a report to the governor, the lieutenant governor, the speaker of the house of representatives, and the members of the legislature regarding the status and results of the program.
[Sections 551.056-551.100 reserved for expansion]
SUBCHAPTER C. OPERATION OF PROGRAM
Sec.i551.101.iiEMPLOYER AUTHORIZATION TO OFFER ALTERNATIVE BENEFIT PLAN. (a) Notwithstanding Subtitle A, a subscribing employer who elects to participate in the program may offer an alternative benefit plan to provide benefits
Tuesday, May 17, 2005 SENATE JOURNAL 2429
(b)iiAn employer may offer an alternative benefit plan under this chapter only through:
(1)iihealth insurance coverage provided through a qualified insurance policy; and
(2)iiindemnity coverage provided through a policy approved by the commissioner.
Sec.i551.102.iiELIGIBILITY TO PARTICIPATE IN PROGRAM. An employer is only eligible to participate in the program if the employer elected to obtain workers' compensation insurance coverage under Subtitle A on or before January 1, 2005. An employer who did not elect to obtain workers' compensation insurance coverage under Subtitle A on or before January 1, 2005, may not participate in the program.
[Sections 551.103-551.150 reserved for expansion]
SUBCHAPTER D. PROVISION OF ALTERNATIVE BENEFIT PLAN
THROUGH QUALIFIED INSURANCE POLICY AND ENDORSEMENTS
Sec.i551.151.iiRESPONSIBILITIES OF EMPLOYER. (a) An employer who elects to participate in the program shall:
(1)iipay any coinsurance or deductible otherwise imposed on the insured employee for any compensable work-related injury; and
(2)iicontinue the payment of wages to an insured employee until that employee begins to receive income benefits through the indemnity insurance policy under Section 551.053.
(b)iiIf an employee receives benefits under an alternative benefit plan, the employer shall maintain a qualified insurance policy and indemnity insurance policy for the benefit of that employee until the benefits to which the employee is entitled have been paid. A qualified insurance policy and indemnity insurance policy required to be maintained under this subsection must provide benefits adequate to pay all benefits to which the employee is entitled.
Sec.i551.152.iiSUBROGATION. (a) This section applies to an action to recover damages for personal injuries or death sustained by an employee in the course and scope of employment against:
(1)iian employer who has obtained a qualified insurance policy and indemnity insurance policy covering that employee; or
(2)iia third party.
(b)iiA judgment against an employer shall be reduced to the extent that the employee has been compensated or is entitled to be compensated under the employer's qualified insurance policy or indemnity insurance policy. A judgment reduced under this subsection shall be reinstated to the extent that the qualified insurance policy or indemnity insurance policy is canceled or otherwise fails to fully compensate the employee or a legal beneficiary of the employee to the extent provided by the policy.
(c)iiAn insurance carrier that is liable for the payment of benefits to the employee or a legal beneficiary of the employee is subrogated to the rights of the employee or legal beneficiary against a third party.
2430 79th Legislature — Regular Session 71st Day
[Sections 551.153-551.200 reserved for expansion]
SUBCHAPTER E. EFFECT OF ALTERNATIVE BENEFIT PLAN
Sec.i551.201.iiAPPLICATION OF SUBTITLE A. Subtitle A applies to an employer who provides an alternative benefit plan in the manner prescribed by this chapter.
Sec.i551.202.iiCONTRACT REQUIREMENTS. A person who requires an employer, as a prerequisite to entering into a contract with that employer, to present evidence of workers' compensation insurance coverage shall accept instead of that evidence a qualified insurance policy and indemnity insurance policy issued as provided by this chapter from an employer who obtains and maintains in effect a qualified insurance policy and indemnity insurance policy.
SECTIONi2A.002.ii(a) The commissioner of insurance shall adopt rules as required by this article not later than January 1, 2006.
(b)iiSubchapter E, Chapter 551, Labor Code, as added by this article, takes effect March 1, 2006, and applies only to an alternative benefit plan entered into on or after that date.
SECTIONi2A.003.iiExcept as provided by Section 2A.002(b) of this article, this article takes effect September 1, 2005.
ARTICLE 3. CONFORMING AMENDMENTS
PART 1. CONFORMING AMENDMENTS–GOVERNMENT CODE
SECTIONi3.001.iiSection 23.101(a), Government Code, is amended to read as follows:
(a)iiThe trial courts of this state shall regularly and frequently set hearings and trials of pending matters, giving preference to hearings and trials of the following:
(1)iitemporary injunctions;
(2)iicriminal actions, with the following actions given preference over other criminal actions:
(A)iicriminal actions against defendants who are detained in jail pending trial;
(B)iicriminal actions involving a charge that a person committed an act of family violence, as defined by Section 71.004, Family Code; and
(C)iian offense under:
(i)iiSection 21.11, Penal Code;
(ii)iiChapter 22, Penal Code, if the victim of the alleged offense is younger than 17 years of age;
(iii)iiSection 25.02, Penal Code, if the victim of the alleged offense is younger than 17 years of age; or
(iv)iiSection 25.06, Penal Code;
(3)iielection contests and suits under the Election Code;
(4)iiorders for the protection of the family under Subtitle B, Title 4, Family Code;
(5)iiappeals of final rulings and decisions of the Texas Department of
Insurance regarding workers' compensation claims [Workers' Compensation
Commission] and claims under the Federal Employers' Liability Act and the Jones
Act; and
Tuesday, May 17, 2005 SENATE JOURNAL 2431
(6)iiappeals of final orders of the commissioner of the General Land Office under Section 51.3021, Natural Resources Code.
SECTIONi3.002.iiSection 25.0003(c), Government Code, is amended to read as follows:
(c)iiIn addition to other jurisdiction provided by law, a statutory county court
exercising civil jurisdiction concurrent with the constitutional jurisdiction of the
county court has concurrent jurisdiction with the district court in[:
[(1)]iicivil cases in which the matter in controversy exceeds $500 but does
not exceed $100,000, excluding interest, statutory or punitive damages and penalties,
and attorney's fees and costs, as alleged on the face of the petition[; and
[(2)iiappeals of final rulings and decisions of the Texas Workers'
Compensation Commission, regardless of the amount in controversy].
SECTIONi3.003.iiSection 25.0222(a), Government Code, is amended to read as follows:
(a)iiIn addition to the jurisdiction provided by Section 25.0003 and other law, a statutory county court in Brazoria County has concurrent jurisdiction with the district court in:
(1)iicivil cases in which the matter in controversy exceeds $500 but does not exceed $100,000, excluding interest, statutory damages and penalties, and attorney's fees and costs, as alleged on the face of the petition; and
(2)ii[appeals of final rulings and decisions of the Texas Workers'
Compensation Commission, regardless of the amount in controversy; and
[(3)]iifamily law cases and proceedings and juvenile jurisdiction under
Section 23.001.
SECTIONi3.004.iiSection 25.0862(i), Government Code, is amended to read as follows:
(i)iiThe clerk of the statutory county courts and statutory probate court shall keep
a separate docket for each court. The clerk shall tax the official court reporter's fees as
costs in civil actions in the same manner as the fee is taxed in civil cases in the district
courts. The district clerk serves as clerk of the county courts in a cause of action
arising under the Family Code [and an appeal of a final ruling or decision of the Texas
Workers' Compensation Commission], and the county clerk serves as clerk of the
court in all other cases.
SECTIONi3.005.iiSection 25.2222(b), Government Code, as amended by Chapter 22, Acts of the 72nd Legislature, Regular Session, 1991, is amended to read as follows:
(b)iiA county court at law has concurrent jurisdiction with the district court in:
(1)iicivil cases in which the matter in controversy exceeds $500 and does not exceed $100,000, excluding mandatory damages and penalties, attorney's fees, interest, and costs;
(2)iinonjury family law cases and proceedings;
(3)ii[final rulings and decisions of the Texas Workers' Compensation
Commission, regardless of the amount in controversy;
[(4)]iieminent domain proceedings, both statutory and inverse, regardless of
the amount in controversy;
(4)i[(5)]iisuits to decide the issue of title to real or personal property;
2432 79th Legislature — Regular Session 71st Day
(5)i[(6)]iisuits to recover damages for slander or defamation of character;
(6)i[(7)]iisuits for the enforcement of a lien on real property;
(7)i[(8)]iisuits for the forfeiture of a corporate charter;
(8)i[(9)]iisuits for the trial of the right to property valued at $200 or more
that has been levied on under a writ of execution, sequestration, or attachment; and
(9)i[(10)]iisuits for the recovery of real property.
SECTIONi3.006.iiSection 551.044(b), Government Code, is amended to read as follows:
(b)iiSubsection (a) does not apply to:
(1)iithe Texas Department of Insurance, as regards proceedings and activities
of the department or commissioner of insurance under Title 5, Labor Code [Workers'
Compensation Commission]; or
(2)iithe governing board of an institution of higher education.
SECTIONi3.007.iiSection 2001.003(7), Government Code, is amended to read as follows:
(7)ii"State agency" means a state officer, board, commission, or department with statewide jurisdiction that makes rules or determines contested cases. The term includes the State Office of Administrative Hearings for the purpose of determining contested cases. The term does not include:
(A)iia state agency wholly financed by federal money;
(B)iithe legislature;
(C)iithe courts;
(D)iithe Texas Department of Insurance, as regards proceedings and
activities of the department or commissioner of insurance under Title 5, Labor Code
[Workers' Compensation Commission]; or
(E)iian institution of higher education.
SECTIONi3.008.iiSection 2002.001(3), Government Code, is amended to read as follows:
(3)ii"State agency" means a state officer, board, commission, or department with statewide jurisdiction that makes rules or determines contested cases other than:
(A)iian agency wholly financed by federal money;
(B)iithe legislature;
(C)iithe courts;
(D)iithe Texas Department of Insurance, as regards proceedings and
activities of the department or commissioner of insurance under Title 5, Labor Code
[Workers' Compensation Commission]; or
(E)iian institution of higher education.
SECTIONi3.009.iiSection 2003.001(4), Government Code, is amended to read as follows:
(4)ii"State agency" means:
(A)iia state board, commission, department, or other agency that is subject to Chapter 2001; and
(B)iito the extent provided by Title 5, Labor Code, the Texas
Department of Insurance, as regards proceedings and activities of the department or
commissioner of insurance under Title 5, Labor Code [Workers' Compensation
Commission].
Tuesday, May 17, 2005 SENATE JOURNAL 2433
SECTIONi3.010.iiSection 2003.021(c), Government Code, is amended to read as follows:
(c)iiThe office shall conduct hearings under Title 5, Labor Code, as provided by
that title. In conducting hearings under Title 5, Labor Code, the office shall consider
the applicable substantive rules and policies of the Texas Department of Insurance
regarding workers' compensation claims [Workers' Compensation Commission]. The
office and the Texas Department of Insurance [Workers' Compensation Commission]
shall enter into an interagency contract under Chapter 771 to pay the costs incurred by
the office in implementing this subsection.
SECTIONi3.011.iiSection 2054.021(c), Government Code, is amended to read as follows:
(c)iiTwo groups each composed of three ex officio members serve on the board
on a rotating basis. The ex officio members serve as nonvoting members of the board.
Only one group serves at a time. The first group is composed of the commissioner of
insurance [executive director of the Texas Workers' Compensation Commission], the
executive commissioner of the Health and Human Services Commission [health and
human services], and the executive director of the Texas Department of
Transportation. Members of the first group serve for two-year terms that begin
February 1 of every other odd-numbered year and that expire on February 1 of the
next odd-numbered year. The second group is composed of the commissioner of
education, the executive director of the Texas Department of Criminal Justice, and the
executive director of the Parks and Wildlife Department. Members of the second
group serve for two-year terms that begin February 1 of the odd-numbered years in
which the terms of members of the first group expire and that expire on February 1 of
the next odd-numbered year.
PART 2. CONFORMING AMENDMENTS–INSURANCE CODE
SECTIONi3.051.iiSection 31.002, Insurance Code, is amended to read as follows:
Sec.i31.002.iiDUTIES OF DEPARTMENT. In addition to the other duties required of the Texas Department of Insurance, the department shall:
(1)iiregulate the business of insurance in this state; [and]
(2)iiadminister the workers' compensation system of this state as provided by Title 5, Labor Code; and
(3)iiensure that this code and other laws regarding insurance and insurance companies are executed.
SECTIONi3.052.iiSection 31.004, Insurance Code, is amended to read as follows:
Sec.i31.004.iiSUNSET PROVISION. (a) The Texas Department of Insurance is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the department is abolished September 1, 2007.
(b)iiIn conducting its review of the Texas Department of Insurance as required by Subsection (a), the Sunset Advisory Commission shall limit its review to the operations of that department under the Insurance Code. Unless continued as provided by Chapter 325, Government Code, the duties of the Texas Department of Insurance under Title 5, Labor Code, expire September 1, 2019, or another date designated by the legislature.
2434 79th Legislature — Regular Session 71st Day
SECTIONi3.053.iiSection 31.021(b), Insurance Code, is amended to read as follows:
(b)iiThe commissioner has the powers and duties vested in the department by:
(1)iithis code and other insurance laws of this state; and
(2)iiTitle 5, Labor Code, and other workers' compensation insurance laws of this state.
SECTIONi3.054.iiSection 33.007(a), Insurance Code, is amended to read as follows:
(a)iiA person who served as the commissioner, the general counsel to the
commissioner, or the public insurance counsel, or as an employee of the State Office
of Administrative Hearings who was involved in hearing cases under this code, [or]
another insurance law of this state, or Title 5, Labor Code, commits an offense if the
person represents another person in a matter before the department or receives
compensation for services performed on behalf of another person regarding a matter
pending before the department during the one-year period after the date the person
ceased to be the commissioner, the general counsel to the commissioner, the public
insurance counsel, or an employee of the State Office of Administrative Hearings.
SECTIONi3.055.iiSection 36.104, Insurance Code, is amended to read as follows:
Sec.i36.104.iiINFORMAL DISPOSITION OF CERTAIN CONTESTED
CASES [CASE]. (a) The commissioner may, on written agreement or stipulation of
each party and any intervenor, informally dispose of a contested case in accordance
with Section 2001.056, Government Code, notwithstanding any provision of this code
that requires a hearing before the commissioner.
(b)iiThis section does not apply to a contested case under Title 5, Labor Code.
SECTIONi3.056.iiSubchapter D, Chapter 36, Insurance Code, is amended by adding Section 36.2015 to read as follows:
Sec.i36.2015.iiACTIONS UNDER TITLE 5, LABOR CODE. Notwithstanding Section 36.201, a decision, order, rule, form, or administrative or other ruling of the commissioner under Title 5, Labor Code, is subject to judicial review as provided by Title 5, Labor Code.
SECTIONi3.057.iiSection 40.003(c), Insurance Code, is amended to read as follows:
(c)iiThis chapter does not apply to a proceeding conducted under Chapter 201
[Article 1.04D] or to a proceeding relating to:
(1)iiapproving or reviewing rates or rating manuals filed by an individual company, unless the rates or manuals are contested;
(2)iiadopting a rule;
(3)iiadopting or approving a policy form or policy form endorsement;
(4)iiadopting or approving a plan of operation for an organization subject to
the jurisdiction of the department; [or]
(5)iiadopting a presumptive rate under Chapter 1153; or
(6)iia workers' compensation claim brought under Title 5, Labor Code
[Article 3.53].
SECTIONi3.058.iiSection 81.001(c), Insurance Code, is amended to read as follows:
Tuesday, May 17, 2005 SENATE JOURNAL 2435
(c)iiThis section does not apply to conduct that is:
(1)iia violation that is ongoing at the time the department seeks to impose the
sanction, penalty, or fine; [or]
(2)iia violation of Subchapter A, Chapter 544 [Article 21.21-6 of this code,
as added by Chapter 415, Acts of the 74th Legislature, Regular Session, 1995], or
Section 541.057 [4(7)(a), Article 21.21 of this code], as those provisions relate to
discrimination on the basis of race or color, regardless of the time the conduct occurs;
or
(3)iia violation of Title 5, Labor Code.
SECTIONi3.059.iiSection 84.002, Insurance Code, is amended by adding Subsection (c) to read as follows:
(c)iiThis chapter applies to a monetary penalty the department or commissioner imposes under Title 5, Labor Code, only as provided by that title.
SECTIONi3.060.iiSection 843.101, Insurance Code, is amended by adding Subsection (e) to read as follows:
(e)iiA health maintenance organization may serve as a certified provider network, as defined by Section 401.011, Labor Code, in accordance with Chapter 408B, Labor Code.
SECTIONi3.061.iiSection 1301.056(b), Insurance Code, as effective April 1, 2005, is amended to read as follows:
(b)iiA party to a preferred provider contract, including a contract with a preferred
provider organization, may not sell, lease, or otherwise transfer information regarding
the payment or reimbursement terms of the contract without the express authority of
and prior adequate notification to the other contracting parties. This subsection does
not affect the authority of the commissioner [or the Texas Workers' Compensation
Commission] under this code or Title 5, Labor Code, to request and obtain
information.
SECTIONi3.062.iiSubchapter D, Chapter 5, Insurance Code, is amended by adding Articles 5.55A and 5.55D to read as follows:
Art.i5.55A.iiWORKERS' COMPENSATION COVERAGE WRITTEN BY GROUP HEALTH INSURERS AUTHORIZED. (a) A person authorized by the department to engage in the business of insurance in this state under a certificate of authority that includes authorization to write group health insurance may also write workers' compensation insurance in this state.
(b)iiA person writing workers' compensation insurance under this article is, with respect to that insurance, subject to each duty imposed on a workers' compensation insurer under this code and under Title 5, Labor Code, including provisions relating to the payment of premium and maintenance taxes and maintenance of reserves, and is a member insurer under Article 21.28-C of this code.
(c)iiNotwithstanding Subsection (b) of this article, the commissioner by rule may provide that a person writing workers' compensation insurance under this article may instead comply with specified regulatory provisions otherwise applicable to the person, such as provisions relating to authorized investments and transactions for a life, health, and accident insurance company, if the commissioner finds that those
2436 79th Legislature — Regular Session 71st Day
Art.i5.55D.iiDISCOUNTS FOR CERTAIN PROGRAMS
Sec.i1.iiDEFINITION.iiIn this article, "insurer" means a person authorized and admitted by the department to engage in the business of insurance in this state under a certificate of authority that includes authorization to write workers' compensation insurance. The term includes the Texas Mutual Insurance Company.
Sec.i2.iiREQUIRED FILING OF DISCOUNT INFORMATION. (a) Each insurer shall file with the department in the manner prescribed by the commissioner by rule information regarding any premium discounts offered by the insurer to an employer who is a policyholder under a policy of workers' compensation insurance for the use by the employer of:
(1)iireturn-to-work programs for injured employees; and
(2)iiemployee safety programs.
(b)iiThe insurer shall include in the filing the percentage amount discounted from the premium for each program described under Subsection (a) of this section.
Sec.i3.iiDEPARTMENT ANALYSIS; RULES. The department shall analyze the information contained in filings made under this article and shall determine whether the mandatory use of the workers' compensation insurance premium discounts would improve the operation of the workers' compensation system of this state. If the department does so determine, the commissioner by rule may establish a mandatory premium discount program under this article.
SECTIONi3.063.iiArticle 5.58(b), Insurance Code, is amended to read as follows:
(b)iiStandards and Procedures. For purposes of Subsection (c) of this article, the
commissioner shall establish standards and procedures for categorizing insurance and
medical benefits reported on each workers' compensation claim. The commissioner
shall [consult with the Texas Workers' Compensation Commission and the Research
and Oversight Council on Workers' Compensation in establishing these standards to]
ensure that the data collection methodology will also yield data necessary for research
and medical cost containment efforts.
SECTIONi3.064.iiArticle 5.60A, Insurance Code, is amended to read as follows:
Art.i5.60A.iiRATE HEARINGS. (a) The commissioner [Board] shall conduct a
public [an annual] hearing not later than December 1, 2008, to review rates to be
charged for workers' compensation insurance written in this state [under this
subchapter]. A public hearing under this article is not a contested case as defined by
Section 2001.003, Government Code. [The hearing shall be conducted under the
contested case provisions of the Administrative Procedure and Texas Register Act
(Article 6252-13a, Vernon's Texas Civil Statutes).]
(b)iiNot later than the 30th day before the date of the public hearing required
under Subsection (a) of this article, each insurer subject to this subchapter shall file
the insurer's rates, supporting information, and supplementary rating information with
the commissioner [The Board shall conduct a hearing six months prior to the annual
Tuesday, May 17, 2005 SENATE JOURNAL 2437
(c)iiThe commissioner shall review the information submitted under Subsection
(b) of this section to determine the positive or negative impact of the enactment of
House Bill 7, Acts of the 79th Legislature, Regular Session, 2005, on workers'
compensation rates and premiums. The commissioner may consider other factors,
including relativities under Article 5.60 of this code, in determining whether a change
in rates has impacted the premium charged to policyholders [To assist the Board in
making rates and to provide additional information on certain trends that may affect
the costs of workers' compensation insurance, the executive director of the Texas
Workers' Compensation Commission or a person designated by that officer shall
testify at any rate hearing conducted under this article. The testimony shall relate to
trends in:
[(1)iiclaims resolution of workers' compensation cases; and
[(2)iicost components in workers' compensation cases].
(d)iiThe commissioner shall implement rules as necessary to mandate rate
reductions or to modify the use of individual risk variations if the commissioner
determines that the rates or premiums charged by insurers are excessive, as that term
is defined in this code [The testimony of the executive director or designee is subject
to cross-examination by the Board and any party to the hearing].
(e)iiThe commissioner may adopt rules as necessary to mandate rate or premium
reductions by insurers for the use of cost-containment strategies that result in savings
to the workers' compensation system, including use of a provider network health care
delivery system, as described by Chapter 408B, Labor Code [The Board shall
consider changes in the workers' compensation laws when setting workers'
compensation insurance rates].
(f)iiNot later than January 1, 2009, the commissioner shall submit a report to the governor, the lieutenant governor, the speaker of the house of representatives, and the members of the 81st Legislature regarding the information collected from the insurer filings under this article. The commissioner shall recommend proposed legislation that reflects the findings of the report and how that information may be used to lower the rates filed by insurers and the premium charged to policyholders.
(g)iiThe commissioner shall schedule a public hearing to review rates and premiums to be charged for workers' compensation insurance each biennium under this article.
(h)iiThis section expires September 1, 2019.
SECTIONi3.065.iiArticle 5.65A(a), Insurance Code, is amended to read as follows:
(a)iiA company or association that writes workers' compensation insurance in
this state shall notify each policyholder of any claim that is filed against the policy.
Thereafter a company shall notify the policyholder of any proposal to settle a claim or,
on receipt of a written request from the policyholder, of any administrative or judicial
proceeding relating to the resolution of a claim[, including a benefit review conference
conducted by the Texas Workers' Compensation Commission].
2438 79th Legislature — Regular Session 71st Day
SECTIONi3.066.iiSections 8(a), (e), (g)-(i), (k), and (l), Article 5.76-3, Insurance Code, are amended to read as follows:
(a)iiThe company may make and enforce requirements for the prevention of
injuries to employees of its policyholders or applicants for insurance under this article.
For this purpose, representatives of the company[, representatives of the commission,]
or representatives of the department on reasonable notice shall be granted free access
to the premises of each policyholder or applicant during regular working hours.
(e)iiThe policyholder shall obtain the safety consultation not later than the 30th
day after the effective date of the policy and shall obtain the safety consultation from
the department [division of workers' health and safety of the commission], the
company, or another professional source approved for that purpose by the department
[division of workers' health and safety]. The safety consultant shall file a written
report with the department [commission] and the policyholder setting out any
hazardous conditions or practices identified by the safety consultation.
(g)iiThe department [division of workers' health and safety of the commission]
may investigate accidents occurring at the work sites of a policyholder for whom a
plan has been developed under Subsection (f) of this section, and [the division] may
otherwise monitor the implementation of the accident prevention plan as it finds
necessary.
(h)iiIn accordance with rules adopted by the commissioner [commission], not
earlier than 90 days or later than six months after the development of an accident
prevention plan under Subsection (f) of this section, the department [division of
workers' health and safety of the commission] shall conduct a follow-up inspection of
the policyholder's premises. The department [commission] may require the
participation of the safety consultant who performed the initial consultation and
developed the safety plan. If the commissioner [division] determines that the
policyholder has complied with the terms of the accident prevention plan or has
implemented other accepted corrective measures, the commissioner [division] shall so
certify. If a policyholder fails or refuses to implement the accident prevention plan or
other suitable hazard abatement measures, the policyholder may elect to cancel
coverage not later than the 30th day after the date of the [division] determination. If
the policyholder does not elect to cancel, the company may cancel the coverage or the
commissioner [commission] may assess an administrative penalty not to exceed
$5,000. Each day of noncompliance constitutes a separate violation. Penalties
collected under this section shall be deposited in the general revenue fund and may be
appropriated [to the credit of the commission or reappropriated] to the department
[commission] to offset the costs of implementing and administering this section.
(i)iiIn assessing an administrative penalty, the commissioner [commission] may
consider any matter that justice may require and shall consider:
(1)iithe seriousness of the violation, including the nature, circumstances, consequences, extent, and gravity of the prohibited act;
(2)iithe history and extent of previous administrative violations;
(3)iithe demonstrated good faith of the violator, including actions taken to rectify the consequences of the prohibited act;
(4)iiany economic benefit resulting from the prohibited act; and
(5)iithe penalty necessary to deter future violations.
Tuesday, May 17, 2005 SENATE JOURNAL 2439
(k)iiThe department [commission] shall charge the policyholder for the
reasonable cost of services provided under Subsections (e), (f), and (h) of this section.
The fees for those services shall be set at a cost-reimbursement level including a
reasonable allocation of the department's [commission's] administrative costs.
(l)iiThe department [compliance and practices division of the commission] shall
enforce compliance with this section through the administrative violation proceedings
under Chapter 415, Labor Code.
SECTIONi3.067.iiSections 9(a), (b), and (e), Article 5.76-3, Insurance Code, are amended to read as follows:
(a)iiThe company shall develop and implement a program to identify and
investigate fraud and violations of this code relating to workers' compensation
insurance by an applicant, policyholder, claimant, agent, insurer, health care provider,
or other person. The company shall cooperate with the department [commission] to
compile and maintain information necessary to detect practices or patterns of conduct
that violate this code relating to the workers' compensation insurance or Subtitle A,
Title 5, Labor Code (the Texas Workers' Compensation Act).
(b)iiThe company may conduct investigations of cases of suspected fraud and violations of this code relating to workers' compensation insurance. The company may:
(1)iicoordinate its investigations with those conducted by the department
[commission] to avoid duplication of efforts; and
(2)iirefer cases that are not otherwise resolved by the company to the
department [commission] to:
(A)iiperform any further investigations that are necessary under the circumstances;
(B)iiconduct administrative violation proceedings; and
(C)iiassess and collect penalties and restitution.
(e)iiPenalties collected under Subsection (b) of this section shall be deposited in
the Texas Department of Insurance operating account [general revenue fund to the
credit of the commission] and shall be appropriated to the department [commission] to
offset the costs of this program.
SECTIONi3.068.iiSection 10(a), Article 5.76-3, Insurance Code, is amended to read as follows:
(a)iiInformation maintained in the investigation files of the company is confidential and may not be disclosed except:
(1)iiin a criminal proceeding;
(2)iiin a hearing conducted by the department [commission];
(3)iion a judicial determination of good cause; or
(4)iito a governmental agency, political subdivision, or regulatory body if the disclosure is necessary or proper for the enforcement of the laws of this or another state or of the United States.
SECTIONi3.069.iiSection 12(e), Article 5.76-3, Insurance Code, is amended to read as follows:
2440 79th Legislature — Regular Session 71st Day
(e)iiThe company shall file annual statements with the department [and the
commission] in the same manner as required of other workers' compensation
insurance carriers, and the commissioner shall include a report on the company's
condition in the commissioner's annual report under Section 32.021 of this code.
SECTIONi3.070.iiSection 16(b), Article 5.76-3, Insurance Code, is amended to read as follows:
(b)iiThe company shall file with the department [and the commission] all reports
required of other workers' compensation insurers.
SECTIONi3.071.iiSections 10(a) and (c), Article 5.76-5, Insurance Code, are amended to read as follows:
(a)iiA maintenance tax surcharge is assessed against:
(1)iieach insurance company writing workers' compensation insurance in this state;
(2)iieach certified self-insurer under Chapter 407, Labor Code [as provided
in Chapter D, Article 3, Texas Workers' Compensation Act (Article 8308-3.51 et seq.,
Vernon's Texas Civil Statutes)]; and
(3)iithe fund.
(c)iiOn determining [receiving notice of] the rate of assessment [set by the Texas
Workers' Compensation Commission] under Section 403.003, Labor Code [2.23,
Texas Workers' Compensation Act (Article 8308-2.23, Vernon's Texas Civil
Statutes)], the commissioner [State Board of Insurance] shall increase the tax rate to a
rate sufficient to pay all debt service on the bonds subject to the maximum tax rate
established by Section 403.002, Labor Code [2.22, Texas Workers' Compensation Act
(Article 8308-2.22, Vernon's Texas Civil Statutes)]. If the resulting tax rate is
insufficient to pay all costs for the department under this article [Texas Workers'
Compensation Commission] and all debt service on the bonds, the commissioner
[State Board of Insurance] may assess an additional surcharge not to exceed one
percent of gross workers' compensation premiums to cover all debt service on the
bonds. In this code, the maintenance tax surcharge includes the additional
maintenance tax assessed under this subsection and the surcharge assessed under this
subsection to pay all debt service of the bonds.
SECTIONi3.072.iiSection 3A, Article 21.28, Insurance Code, is amended to read as follows:
Sec.i3A.iiWORKERS' COMPENSATION CARRIER: NOTIFICATION [OF
TEXAS WORKERS' COMPENSATION COMMISSION]. (a) The liquidator shall
notify the department [Texas Workers' Compensation Commission] immediately
upon a finding of insolvency or impairment upon any insurance company which has
in force any workers' compensation coverage in Texas.
(b)iiThe department [Texas Workers' Compensation Commission] shall, upon
said notice, submit to the liquidator a list of active cases pending before the
department [Texas Workers' Compensation Commission] in which there has been an
acceptance of liability by the carrier, where it appears that no bona fide dispute exists
and where payments were commenced prior to the finding of insolvency or
impairment and where future or past indemnity or medical payments are due.
Tuesday, May 17, 2005 SENATE JOURNAL 2441
(c)iiNotwithstanding the provisions of Section 3 of this Article, the liquidator is authorized to commence or continue the payment of claims based upon the list submitted in Subsection (b) above.
(d)iiIn order to avoid undue delay in the payment of covered workers'
compensation claims, the liquidator shall contract with [the Texas Workers'
Compensation Pool or] any [other] qualified organization for claims adjusting. Files
and information delivered by the department [Texas Workers' Compensation
Commission] to the liquidator may be delivered to the [Texas Workers' Compensation
Pool or any] organization with which the liquidator has contracted for claims
adjusting services.
[(e) The Texas Workers' Compensation Commission shall report to the State
Board of Insurance any occasion when a workers' compensation insurer has
committed acts that may indicate insurer financial impairment, delinquency or
insolvency.]
SECTIONi3.073.iiSection 8(d), Article 21.28-C, Insurance Code, is amended to read as follows:
(d)iiThe association shall investigate and adjust, compromise, settle, and pay
covered claims to the extent of the association's obligation and deny all other claims.
The association may review settlements, releases, and judgments to which the
impaired insurer or its insureds were parties to determine the extent to which those
settlements, releases, and judgments may be properly contested. Any judgment taken
before the designation of impairment in which an insured under a liability policy or
the insurer failed to exhaust all appeals, any judgment taken by default or consent
against an insured or the impaired insurer, and any settlement, release, or judgment
entered into by the insured or the impaired insurer, is not binding on the association,
and may not be considered as evidence of liability or of damages in connection with
any claim brought against the association or any other party under this Act.
Notwithstanding any other provision of this Act, a covered claim shall not include any
claim filed with the guaranty association on a date that is later than eighteen months
after the date of the order of liquidation, except that a claim for workers'
compensation benefits is governed by Title 5, Labor Code, and the applicable rules of
the commissioner [Texas Workers' Compensation Commission].
SECTIONi3.074.iiSection 4(l), Article 21.58A, Insurance Code, is amended to read as follows:
(l)iiUnless precluded or modified by contract, a utilization review agent shall
reimburse health care providers for the reasonable costs for providing medical
information in writing, including copying and transmitting any requested patient
records or other documents. A health care provider's charges for providing medical
information to a utilization review agent shall not exceed the cost of copying set by
rule of the commissioner [Texas Workers' Compensation Commission] for records
regarding a workers' compensation claim and may not include any costs that are
otherwise recouped as a part of the charge for health care.
SECTIONi3.075.iiSection 14(c), Article 21.58A, Insurance Code, is amended to read as follows:
2442 79th Legislature — Regular Session 71st Day
(c)iiExcept as otherwise provided by this subsection, this article applies to
utilization review of health care services provided to persons eligible for workers'
compensation medical benefits under Title 5, Labor Code. The commissioner shall
regulate in the manner provided by this article a person who performs review of a
medical benefit provided under Title 5 [Chapter 408], Labor Code. [This subsection
does not affect the authority of the Texas Workers' Compensation Commission to
exercise the powers granted to that commission under Title 5, Labor Code.] In the
event of a conflict between this article and Title 5, Labor Code, Title 5, Labor Code,
prevails. The commissioner [and the Texas Workers' Compensation Commission]
may adopt rules [and enter into memoranda of understanding] as necessary to
implement this subsection.
SECTIONi3.076.iiThe following laws are repealed:
(1)iiSection 31.006, Insurance Code; and
(2)iiSection 1(2), Article 5.76-3, Insurance Code.
PART 3. CONFORMING AMENDMENTS–OTHER CODES
SECTIONi3.101.iiSection 92.009, Health and Safety Code, is amended to read as follows:
Sec.i92.009.iiCOORDINATION WITH TEXAS DEPARTMENT OF
INSURANCE [WORKERS' COMPENSATION COMMISSION]. The department
and the Texas Department of Insurance [Workers' Compensation Commission] shall
enter into a memorandum of understanding which shall include the following:
(1)iithe department and the Texas Department of Insurance [commission]
shall exchange relevant injury data on an ongoing basis notwithstanding Section
92.006;
(2)iiconfidentiality of injury data provided to the department by the Texas
Department of Insurance [commission] is governed by Subtitle A, Title 5, Labor
Code;
(3)iiconfidentiality of injury data provided to the Texas Department of
Insurance [commission] by the department is governed by Section 92.006; and
(4)iicooperation in conducting investigations of work-related injuries.
SECTIONi3.102.iiSection 91.003(b), Labor Code, is amended to read as follows:
(b)iiIn particular, the Texas Workforce Commission, the Texas Department of
Insurance, [the Texas Workers' Compensation Commission,] and the attorney
general's office shall assist in the implementation of this chapter and shall provide
information to the department on request.
SECTIONi3.103.iiSection 160.006(a), Occupations Code, is amended to read as follows:
(a)iiA record, report, or other information received and maintained by the board under this subchapter or Subchapter B, including any material received or developed by the board during an investigation or hearing and the identity of, and reports made by, a physician performing or supervising compliance monitoring for the board, is confidential. The board may disclose this information only:
(1)iiin a disciplinary hearing before the board or in a subsequent trial or appeal of a board action or order;
Tuesday, May 17, 2005 SENATE JOURNAL 2443
(2)iito the physician licensing or disciplinary authority of another jurisdiction, to a local, state, or national professional medical society or association, or to a medical peer review committee located inside or outside this state that is concerned with granting, limiting, or denying a physician hospital privileges;
(3)iiunder a court order;
(4)iito qualified personnel for bona fide research or educational purposes, if personally identifiable information relating to any physician or other individual is first deleted; or
(5)iito the Texas Department of Insurance [Workers' Compensation
Commission] as provided by Section 413.0514, Labor Code.
ARTICLE 4. TRANSITION; EFFECTIVE DATE
SECTIONi4.001.iiABOLITION OF TEXAS WORKERS' COMPENSATION COMMISSION; GENERAL TRANSFER OF AUTHORITY TO TEXAS DEPARTMENT OF INSURANCE. (a) The Texas Workers' Compensation Commission is abolished March 1, 2006.
(b)iiExcept as otherwise provided by this article, all powers, duties, obligations, rights, contracts, funds, unspent appropriations, records, real or personal property, and personnel of the Texas Workers' Compensation Commission shall be transferred to the Texas Department of Insurance not later than February 28, 2006.
SECTIONi4.002.iiOFFICE OF INJURED EMPLOYEE COUNSEL. (a) The office of injured employee counsel created under Chapter 404, Labor Code, as added by this Act, is established September 1, 2005.
(b)iiThe governor shall appoint the injured employee public counsel of the office of injured employee counsel not later than October 1, 2005.
(c)iiThe injured employee public counsel of the office of injured employee counsel shall adopt initial rules for the office under Section 404.006, Labor Code, as added by this Act, not later than March 1, 2006.
(d)iiThe Texas Department of Insurance shall provide, in Austin and in each regional office operated by the department to administer Subtitle A, Title 5, Labor Code, as amended by this Act, suitable office space, personnel services, computer support, and other administrative support to the office of injured employee counsel as required by Chapter 404, Labor Code, as added by this Act. The department shall provide the facilities and support not later than October 1, 2005.
(e)iiAll powers, duties, obligations, rights, contracts, funds, unspent appropriations, records, real or personal property, and personnel of the Texas Workers' Compensation Commission relating to the operation of the workers' compensation ombudsman program under Subchapter C, Chapter 409, Labor Code, as that subchapter existed before amendment by this Act, shall be transferred to the office of injured employee counsel not later than March 1, 2006. An ombudsman transferred to the office of injured employee counsel under this section shall begin providing services under Chapter 404, Labor Code, as added by this Act, not later than March 1, 2006.
SECTIONi4.003.iiINITIAL REPORT OF WORKERS' COMPENSATION RESEARCH AND EVALUATION GROUP. The workers' compensation research and evaluation group shall submit the initial report required under Section 405.0025, Labor Code, as added by this Act, not later than September 1, 2008.
2444 79th Legislature — Regular Session 71st Day
SECTIONi4.004.iiCONTINUATION OF CERTAIN POLICIES, PROCEDURES, OR DECISIONS. (a) A policy, procedure, or decision of the Texas Workers' Compensation Commission relating to a duty of that commission that is transferred to the authority of the Texas Department of Insurance under Subtitle A, Title 5, Labor Code, as amended by this Act, continues in effect as a policy, procedure, or decision of the commissioner of insurance until superseded by an act of the commissioner of insurance.
(b)iiA policy, procedure, or decision of the Texas Workers' Compensation Commission relating to a duty of that commission that is transferred to the authority of the office of injured employee counsel established under Chapter 404, Labor Code, as added by this Act, continues in effect as a policy, procedure, or decision of the office of injured employee counsel until superseded by an act of the injured employee public counsel.
(c)iiExcept as otherwise provided by this article, the validity of a plan or procedure adopted, contract or acquisition made, proceeding begun, grant or loan awarded, obligation incurred, right accrued, or other action taken by or in connection with the authority of the Texas Workers' Compensation Commission before that commission is abolished under Section 4.001 of this article is not affected by the abolishment.
SECTIONi4.005.iiRULES. (a) The commissioner of insurance shall adopt rules relating to the transfer of the programs assigned to the Texas Department of Insurance under Subtitle A, Title 5, Labor Code, as amended by this Act, not later than December 1, 2005.
(b)iiThe injured employee public counsel of the office of injured employee counsel established under Chapter 404, Labor Code, as added by this Act, shall adopt rules relating to the transfer of the programs assigned to the office of injured employee counsel under Subtitle A, Title 5, Labor Code, as amended by this Act, not later than March 1, 2006.
(c)iiA rule of the Texas Workers' Compensation Commission relating to a duty of that commission that is transferred to the authority of the Texas Department of Insurance under Subtitle A, Title 5, Labor Code, as amended by this Act, continues in effect as a rule of the commissioner of insurance until the earlier of:
(1)iiDecember 1, 2006; or
(2)iithe date on which the rule is superseded by a rule adopted by the commissioner of insurance.
(d)iiA rule of the Texas Workers' Compensation Commission relating to a duty of that commission that is transferred to the authority of the office of injured employee counsel under Subtitle A, Title 5, Labor Code, as amended by this Act, continues in effect as a rule of the injured employee public counsel of the office of injured employee counsel until the earlier of:
(1)iiDecember 1, 2006; or
(2)iithe date on which the rule is superseded by a rule adopted by the injured employee public counsel.
Tuesday, May 17, 2005 SENATE JOURNAL 2445
SECTIONi4.006.iiEFFECT ON ACTION OR PROCEEDING. (a) Except as otherwise provided by this section, any action or proceeding before the Texas Workers' Compensation Commission or to which the commission is a party is transferred without change in status to the Texas Department of Insurance.
(b)iiBenefit review conferences, as established under Subchapter B, Chapter 410, Labor Code, as that subchapter existed before amendment by this Act, are abolished February 28, 2006. A benefit review officer conducting a benefit review conference that is in progress on February 28, 2006, shall terminate the conference and file with the Texas Department of Insurance the written agreement required under Section 410.034, Labor Code, as that section existed before repeal by this Act, not later than April 1, 2006. A claimant regarding workers' compensation benefits whose claim is not heard by a benefit review officer under Subchapter B, Chapter 410, Labor Code, as that subchapter existed before amendment by this Act, on or before February 27, 2006, is entitled to a contested case hearing or arbitration on the claim without compliance with the informal dispute resolution procedures established under Chapter 410, Labor Code, as amended by this Act. If the claimant elects to proceed to a contested case hearing, the claimant may elect to participate in a prehearing conference under Section 410.151, Labor Code, as amended by this Act, or may proceed directly to a contested case hearing. This subsection expires April 30, 2006.
(c)iiThe workers' compensation appeals panels established under Subchapter E, Chapter 410, Labor Code, as that subchapter existed before repeal by this Act, are abolished April 1, 2006, or on an earlier date specified by the commissioner of insurance. An appeals panel may not accept a new appeal of the decision of a hearing officer under Chapter 410, Labor Code, as that chapter existed before amendment by this Act, on or after February 28, 2006. A party to a dispute regarding the decision of a hearing officer that is filed with the Texas Workers' Compensation Commission or the Texas Department of Insurance on or after February 28, 2006, may seek judicial review under Chapter 410, Labor Code, as amended by this Act.
SECTIONi4.007.iiAPPEAL. Section 410.252(e), Labor Code, as added by this Act, and Sections 25.0003, 25.0222, and 25.0862, Government Code, as amended by this Act, apply only to an appeal filed on or after the effective date of this Act. An appeal filed before the effective date of this Act is governed by the law in effect on the date the appeal was filed, and the former law is continued in effect for that purpose.
SECTIONi4.008.iiSTATE OFFICE OF ADMINISTRATIVE HEARINGS REVIEW. (a) This section applies to a hearing conducted by the State Office of Administrative Hearings under Section 413.031(k), Labor Code, as that subsection existed prior to repeal by this Act.
(b)iiThe State Office of Administrative Hearings shall conclude on or before February 28, 2006, any hearings pending before that office regarding medical disputes that remain unresolved.
(c)iiEffective September 1, 2005, the State Office of Administrative Hearings may not accept for hearing a medical dispute that remains unresolved. A medical dispute that is not pending for a hearing by the State Office of Administrative Hearings on or before February 28, 2006, is subject to Section 413.033 and Section 413.035, Labor Code, as added by this Act, and is not subject to a hearing before the State Office of Administrative Hearings.
2446 79th Legislature — Regular Session 71st Day
SECTIONi4.009.iiCHANGE IN CRIMINAL PENALTY. (a) The changes in law made by this Act apply only to the punishment for an offense committed on or after the effective date of this Act. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date.
(b)iiAn offense committed before the effective date of this Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose.
SECTIONi4.010.iiABOLITION OF HEALTH CARE NETWORK ADVISORY COMMITTEE. (a) The Health Care Network Advisory Committee is abolished on the effective date of this Act.
(b)iiExcept as otherwise provided by this article, all powers, duties, obligations, rights, contracts, funds, records, and real or personal property of the Health Care Network Advisory Committee shall be transferred to the Texas Department of Insurance not later than February 28, 2006.
SECTIONi4.011.iiREFERENCE IN LAW. A reference in law to the Texas Workers' Compensation Commission means the Texas Department of Insurance or the office of injured employee counsel as consistent with the respective duties of those state governmental entities under the Labor Code, the Insurance Code, and other laws of this state, as amended by this Act.
SECTIONi4.012.iiBUDGET EXECUTION AUTHORITY. Notwithstanding Section 317.005(e), Government Code, the Legislative Budget Board may adopt an order under Section 317.005, Government Code, affecting any portion of the total appropriation of the Texas Department of Insurance if necessary to implement the provisions of this Act. This section expires March 31, 2006.
SECTIONi4.013.iiEFFECTIVE DATE. Except as otherwise provided by this article, this Act takes effect September 1, 2005.
The amendment was read.
Senator Staples moved that the Senate do not concur in the House amendment, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SBi5 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate:iiSenators Staples, Chair; Duncan, Fraser, Madla, and Nelson.
SENATE BILL 1641 WITH HOUSE AMENDMENT
Senator Lucio called SBi1641 from the President's table for consideration of the House amendment to the bill.
Tuesday, May 17, 2005 SENATE JOURNAL 2447
The Presiding Officer laid the bill and the House amendment before the Senate.
Floor Amendment No. 1
Amend SBi1641 by striking all of SECTION 1 and substituting the following:
SECTION 1. Section 623.219, Transportation Code, is amended to read as follows:
Sec. 623.219. EXPIRATION. This subchapter expires January 1, 2008 [June 1,
2007].
The amendment was read.
Senator Lucio moved that the Senate do not concur in the House amendment, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SBi1641 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate:iiSenators Lucio, Chair; Shapleigh, Carona, Madla, and Eltife.
SENATE BILL 122 WITH HOUSE AMENDMENTS
Senator Hinojosa called SBi122 from the President's table for consideration of the House amendments to the bill.
The Presiding Officer laid the bill and the House amendments before the Senate.
Floor Amendment No. 1
Amend SBi122 in SECTION 2 of the bill, in added Section 48.101(b), Business & Commerce Code (House committee printing, page 3, lines 25-26), by striking "an affirmative defense to prosecution under this section" and substituting "a defense to an auction brought under this section".
Floor Amendment No. 3
Amend SBi122 as follows:
(1)iiAdd the following appropriately numbered SECTION to the bill and renumber subsequent SECTIONS of the bill accordingly:
SECTIONi___.ii(a) Subchapter D, Chapter 35, Business & Commerce Code, is amended by adding Section 35.395 to read as follows:
Sec.i35.395.iDELIVERY OF A CHECK FORM. (a) In this section:
(1)ii"Addressee" means a person to whom a check form is sent.
(2)ii"Check form" means a device for the transmission or payment of money that:
(A)iiis not a negotiable instrument under Section 3.104;
(B)iiif completed would be a check as that term is described by Section 3.104; and
2448 79th Legislature — Regular Session 71st Day
(C)iiis printed with information relating to the financial institution on which the completed check may be drawn.
(3)ii"Courier" means a business, other than the United States Postal Service, that delivers parcels for a fee.
(b)iiA person who prints a check form must provide an addressee the option of selecting a courier for delivery of a check form and must notify the addressee of this option. If an addressee selects a courier for delivery of a check form, the signature of the addressee or the addressee's representative must be obtained on delivery, unless the addressee specifically notifies the person who prints the check form, or the person's agent, that the signature of the addressee or the addressee's representative is not required for delivery. The notification may be made in writing on the check form order, by electronic selection if the check forms are ordered using the Internet, by electronic mail to an address provided to the addressee by the person who prints the check form or the person's agent, by recorded oral notice, or by another method reasonably calculated to effectively communicate the addressee's intent.
(c)iiA person who prints a check form shall notify the courier of the check form if the signature of the addressee or the addressee's representative is required for delivery under Subsection (b).
(d)iiA person who violates Subsection (b) or (c) is subject to a civil penalty of $1,000 for each violation.
(e)iiA courier who is notified under Subsection (c) that a signature is required for delivery may not deliver the check form before obtaining the signature of the addressee or a representative of the addressee. A courier who violates this subsection is subject to a civil penalty of $1,000 for each violation.
(f)iiThe attorney general may bring suit to recover a civil penalty imposed under this section. The attorney general may recover reasonable expenses incurred in obtaining a civil penalty under this subsection, including court costs, reasonable attorney's fees, investigate costs, witness fees, and deposition expenses.
(g)iiThis section applies only to an addressee located in the delivery area of a courier. This section does not require a courier to deliver a check form to an addressee who is not located in the delivery area of the courier.
(b)iiThe changes in law made by Section 35.395, Business & Commerce Code, as added by this section, do not apply to the delivery of check forms if the addressee uses a check form order form that does not include an option to select a signature requirement and submits the order form before June 1, 2006.
(c)iiThis section takes effect January 1, 2006.
(2)iiIn SECTION 3 of the bill (House committee printing, page 11, line 3), strike "This" and substitute "Except as otherwise provided by this Act, this".
Floor Amendment No. 4
Amend SBi122 as follows:
On page 6, strike lines 21 through 26 in their entirety and substitute in lieu thereof the following:
"(g)iiNotwithstanding Subsection (e), a person complies with the notice requirements of this section if, when a breach of security occurs, the person notifies affected persons in accordance with notification procedures maintained by that person:
Tuesday, May 17, 2005 SENATE JOURNAL 2449
(1)iias part of an information security policy for the treatment of sensitive personal information that complies with the timing requirements for notice under this section; or
(2)iiin accordance with the rules, regulations, procedures, or guidelines established by the primary or functional federal regulator."
Floor Amendment No. 1 on Third Reading
Amend SB 122, on third reading, in added Section 48.103, Business & Commerce Code, by striking Subsection (g), as added on second reading by Amendment No. 4 by Giddings, and substituting the following:
(g)iiNotwithstanding Subsection (e), a person that maintains its own notification procedures as part of an information security policy for the treatment of sensitive personal information that complies with the timing requirements for notice under this section complies with this section if the person notifies affected persons in accordance with that policy.
The amendments were read.
Senator Hinojosa moved that the Senate do not concur in the House amendments, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SBi122 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate:iiSenators Hinojosa, Chair; Williams, Gallegos, Carona, and Harris.
CONFERENCE COMMITTEE ON HOUSE BILL 3
Senator Ogden called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi3 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi3 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate:iiSenators Ogden, Chair; Brimer, Staples, Zaffirini, and Fraser.
CONFERENCE COMMITTEE ON HOUSE BILL 2
Senator Shapiro called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi2 and moved that the request be granted.
2450 79th Legislature — Regular Session 71st Day
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi2 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate:iiSenators Shapiro, Chair; Duncan, Armbrister, Janek, and West.
SENATE BILL 1471 WITH HOUSE AMENDMENT
Senator Whitmire called SBi1471 from the President's table for consideration of the House amendment to the bill.
The Presiding Officer laid the bill and the House amendment before the Senate.
Amendment
Amend SB 1471 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of certain promotional activitiesiconducted by alcoholic beverage permit and license holders.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSections 102.07(d) and (e), Alcoholic Beverage Code, are amended to read as follows:
(d)iiA permittee covered under Subsection (a) [of this section] may offer prizes,
premiums, or gifts to a consumer [if the offer is national in scope and legally offered
and conducted in 30 states or more]. The use of rebates or coupons redeemable by the
public for the purchase of alcoholic beverages is prohibited. The holder of a winery
permit may furnish to a retailer without cost recipes, recipe books, book matches,
cocktail napkins, or other advertising items showing the name of the winery
furnishing the items or the brand name of the product advertised if the individual cost
of the items does not exceed $1.
(e)iiA permittee covered under Subsection (a) [of this section] may conduct a
sweepstakes promotion [if the promotion is part of a nationally conducted
promotional activity legally offered and conducted at the same time in 30 or more
states]. A purchase or entry fee may not be required of any person to enter a
sweepstakes event authorized under this subsection. A person affiliated with the
alcoholic beverage industry may not receive a prize from a sweepstakes promotion.
SECTIONi2.iiSection 108.061, Alcoholic Beverage Code, is amended to read as follows:
Sec.i108.061.ii[NATIONALLY CONDUCTED] SWEEPSTAKES
PROMOTIONS AUTHORIZED. Notwithstanding the prohibition against prizes
given to a consumer in Section 108.06 [of this code] and subject to the rules of the
commission, a manufacturer or nonresident manufacturer may offer a prize to a
consumer if the offer is a part of a [nationally conducted] promotional sweepstakes
activity [legally offered and conducted at the same time period in 30 or more states].
Tuesday, May 17, 2005 SENATE JOURNAL 2451
SECTIONi3.iiThis Act takes effect September 1, 2005.
The amendment was read.
Senator Whitmire moved to concur in the House amendment to SBi1471.
The motion prevailed by the following vote:iiYeasi30, Naysi0.
Absent-excused:iiCarona.
SENATE BILL 1472 WITH HOUSE AMENDMENT
Senator Whitmire called SBi1472 from the President's table for consideration of the House amendment to the bill.
The Presiding Officer laid the bill and the House amendment before the Senate.
Amendment
Amend SB 1472 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to services provided by manufacturers and distributors of beer to beer retailers.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSubchapter A, Chapter 108, Alcoholic Beverage Code, is amended by adding Section 108.041 to read as follows:
Sec.i108.041.iiCARBON DIOXIDE FILTERS PROVIDED TO RETAILERS. (a) A manufacturer or distributor of beer may provide carbon dioxide filters to beer retailers for draught systems using carbon dioxide or a carbon dioxide and nitrogen blend, commonly referred to as "beer gas."
(b)iiThe cost of providing, maintaining, and replacing the carbon dioxide filters shall be borne by the manufacturer.
SECTIONi2.iiThe Texas Alcoholic Beverage Commission shall adopt rules implementing Section 108.041, Alcoholic Beverage Code, as added by this Act, not later than January 1, 2006.
SECTIONi3.iiThis Act takes effect September 1, 2005.
The amendment was read.
Senator Whitmire moved to concur in the House amendment to SBi1472.
The motion prevailed by the following vote:iiYeasi30, Naysi0.
Absent-excused:iiCarona.
SENATE BILL 248 WITH HOUSE AMENDMENT
Senator West called SBi248 from the President's table for consideration of the House amendment to the bill.
The Presiding Officer laid the bill and the House amendment before the Senate.
2452 79th Legislature — Regular Session 71st Day
Committee Amendment No. 1
Amend SBi248 on page 2, line 8 by inserting the words "as labeled and" after the word "technologies" and before the word "approved".
The amendment was read.
Senator West moved to concur in the House amendment to SBi248.
The motion prevailed by the following vote:iiYeasi30, Naysi0.
Absent-excused:iiCarona.
CONCLUSION OF MORNING CALL
The Presiding Officer, Senator Armbrister in Chair, at 11:55ia.m. announced the conclusion of morning call.
MESSAGE FROM THE HOUSE
HOUSE CHAMBER
Austin, Texas
May 17, 2005
The Honorable President of the Senate
Senate Chamber
Austin, Texas
Mr. President:
I am directed by the House to inform the Senate that the House has taken the following action:
THE HOUSE HAS PASSED THE FOLLOWING MEASURES:
SB 368, Relating to the compensation of state judges and to the computation of retirement benefits for state judges and for members of the elected class of the Employees Retirement System of Texas.
(Committee Substitute/Amended)
SB 403, Relating to the continuation and functions of the Texas State Board of Examiners of Perfusionists; providing an administrative penalty.
SB 415, Relating to continuation and functions of the Texas State Board of Social Worker Examiners; providing an administrative penalty.
(Amended)
Respectfully,
/s/Robert Haney, Chief Clerk
House of Representatives
COMMITTEEiiSUBSTITUTE
HOUSE BILL 976 ON THIRD READING
Senator Wentworth moved to suspend the regular order of business to take up for consideration CSHBi976 at this time on its third reading and final passage:
Tuesday, May 17, 2005 SENATE JOURNAL 2453
CSHB 976, Relating to allowing the Texas Building and Procurement Commission to deliberate in a closed meeting regarding business and financial considerations of a contract being negotiated.
The motion prevailed by the following vote:iiYeasi29, Naysi1.
Nays:iiBarrientos.
Absent-excused:iiCarona.
The bill was read third time and was passed by the following vote:iiYeasi29, Naysi1.ii(Same as prevoius roll call)
COMMITTEEiiSUBSTITUTE
SENATE BILL 1503 ON THIRD READING
Senator West moved to suspend the regular order of business to take up for consideration CSSBi1503 at this time on its third reading and final passage:
CSSB 1503, Relating to the creation of the Institute on Race, Crime, and Justice at the University of North Texas at Dallas to examine certain information regarding racial profiling and to provide training regarding issues related to law enforcement and certain underrepresented racial or ethnic groups; providing a penalty.
The motion prevailed by the following vote:iiYeasi19, Naysi9.
Yeas:iiArmbrister, Barrientos, Brimer, Deuell, Duncan, Ellis, Estes, Fraser, Gallegos, Hinojosa, Lindsay, Lucio, Madla, Seliger, Shapleigh, VanideiPutte, West, Whitmire, Zaffirini.
Nays:iiEltife, Harris, Jackson, Janek, Nelson, Ogden, Shapiro, Staples, Wentworth.
Absent:iiAveritt, Williams.
Absent-excused:iiCarona.
The bill was read third time and was passed by the following vote:iiYeasi18, Naysi11.
Yeas:iiArmbrister, Barrientos, Brimer, Deuell, Duncan, Ellis, Estes, Gallegos, Hinojosa, Lindsay, Lucio, Madla, Seliger, Shapleigh, VanideiPutte, West, Whitmire, Zaffirini.
Nays:iiEltife, Fraser, Harris, Jackson, Janek, Nelson, Ogden, Shapiro, Staples, Wentworth, Williams.
Absent:iiAveritt.
Absent-excused:iiCarona.
SENATE BILL 1894 ON SECOND READING
On motion of Senator Deuell and by unanimous consent, the regular order of business was suspended to take up for consideration SB 1894 at this time on its second reading:
2454 79th Legislature — Regular Session 71st Day
SB 1894, Relating to the creation of Kaufman County Water Control and Improvement District No. 1; providing authority to impose a tax and issue bonds; granting the power of eminent domain.
The bill was read second time.
Senator Deuell offered the following amendment to the bill:
Floor Amendment No. 1
Amend SB 1894 (Senate committee printing) as follows:
(1)iiOn page 1, between lines 11 and 12, insert the following:
ARTICLE 1. CREATION OF KAUFMAN COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 1
(2)iiRedesignate SECTIONS 1-3 of the bill as SECTIONS 1.01-1.03.
(3)iiIn SECTION 1 of the bill, in added Subsection (a), Section 9002.004, Special District Local Laws Code (page 1, line 41), strike "Section 2 of the Act" and substitute "Section 1.02 of the Act".
(4)iiIn SECTION 1 of the bill, in added Subsection (b), Section 9002.004, Special District Local Laws Code (page 1, lines 42 and 43), strike "Section 2 of the Act" and substitute "Section 1.02 of the Act".
(5)iiIn SECTION 3 of the bill (page 8, lines 32-49), strike "Act" each time the word appears and substitute "article".
(6)iiStrike SECTION 4 of the bill (page 8, lines 50–54), substitute the following appropriately numbered ARTICLES, and renumber subsequent ARTICLES accordingly:
ARTICLE __. CREATION OF LAS LOMAS MUNICIPAL UTILITY DISTRICT NO. 4 OF KAUFMAN COUNTY
SECTIONi___.01.iiSubtitle F, Title 6, Special District Local Laws Code, is amended by adding Chapter 8138 to read as follows:
CHAPTER 8138. LAS LOMAS MUNICIPAL UTILITY
DISTRICT NO. 4 OF KAUFMAN COUNTY
SUBCHAPTER A. GENERAL PROVISIONS
Sec.i8138.001.iiDEFINITIONS. In this chapter:
(1)ii"Board" means the board of directors of the district.
(2)ii"Director" means a member of the board.
(3)ii"District" means Las Lomas Municipal Utility District No. 4 of Kaufman County.
Sec.i8138.002.iiNATURE OF DISTRICT. The district is a municipal utility district in Kaufman County created under and essential to accomplish the purposes of Section 59, Article XVI, Texas Constitution.
Sec.i8138.003.iiCONFIRMATION ELECTION REQUIRED. If the creation of the district is not confirmed at a confirmation election held under Section 8138.023 before September 1, 2007:
(1)iithe district is dissolved September 1, 2007, except that:
(A)iiany debts incurred shall be paid;
(B)iiany assets that remain after the payment of debts shall be transferred to Kaufman County; and
Tuesday, May 17, 2005 SENATE JOURNAL 2455
(C)iithe organization of the district shall be maintained until all debts are paid and remaining assets are transferred; and
(2)iithis chapter expires September 1, 2010.
Sec.i8138.004.iiINITIAL DISTRICT TERRITORY. (a) The district is initially composed of the territory described by Section ___.02 of the Act creating this chapter.
(b)iiThe boundaries and field notes contained in Section ___.02 of the Act creating this chapter form a closure. A mistake made in the field notes or in copying the field notes in the legislative process does not affect:
(1)iithe organization, existence, or validity of the district;
(2)iithe right of the district to impose taxes; or
(3)iithe legality or operation of the board.
[Sections 8138.005-8138.020 reserved for expansion]
SUBCHAPTER A1. TEMPORARY PROVISIONS
Sec.i8138.021.iiTEMPORARY DIRECTORS. (a) The temporary board consists of:
(1)iiDon Allard;
(2)iiTerry Durbin;
(3)iiMichael Higgins;
(4)iiMatthew McDonald; and
(5)iiMachelle Wilson.
(b)iiIf a temporary director fails to qualify for office, the temporary directors who have qualified shall appoint a person to fill the vacancy. If at any time there are fewer than three qualified temporary directors, the Texas Commission on Environmental Quality shall appoint the necessary number of persons to fill all vacancies on the board.
(c)iiTemporary directors serve until the earlier of:
(1)iithe date directors are elected under Section 8138.023; or
(2)iithe date this chapter expires under Section 8138.003.
Sec.i8138.022.iiORGANIZATIONAL MEETING OF TEMPORARY DIRECTORS. As soon as practicable after all the temporary directors have qualified under Section 49.055, Water Code, the temporary directors shall convene the organizational meeting of the district at a location in the district agreeable to a majority of the directors. If a location cannot be agreed upon, the organizational meeting shall be at the Kaufman County Courthouse.
Sec.i8138.023.iiCONFIRMATION AND INITIAL DIRECTORS' ELECTION. The temporary directors shall hold an election to confirm the creation of the district and to elect five directors as provided by Section 49.102, Water Code.
Sec.i8138.024.iiINITIAL ELECTED DIRECTORS; TERMS. The directors elected under Section 8138.023 shall draw lots to determine which two shall serve until the first regularly scheduled election of directors under Section 8138.052 and which three shall serve until the second regularly scheduled election of directors.
Sec.i8138.025.iiEXPIRATION OF SUBCHAPTER. This subchapter expires September 1, 2010.
2456 79th Legislature — Regular Session 71st Day
[Sections 8138.026-8138.050 reserved for expansion]
SUBCHAPTER B. BOARD OF DIRECTORS
Sec.i8138.051.iiDIRECTORS; TERMS. (a) The district is governed by a board of five directors.
(b)iiDirectors serve staggered four-year terms.
Sec.i8138.052.iiELECTION OF DIRECTORS. On the uniform election date in May of each even-numbered year, the appropriate number of directors shall be elected.
[Sections 8138.053-8138.100 reserved for expansion]
SUBCHAPTER C. POWERS AND DUTIES
Sec.i8138.101.iiMUNICIPAL UTILITY DISTRICT POWERS AND DUTIES. The district has the powers and duties provided by the general law of this state, including Chapters 49 and 54, Water Code, applicable to municipal utility districts created under Section 59, Article XVI, Texas Constitution.
Sec.i8138.102.iiROAD PROJECTS. (a) To the extent authorized by Section 52, Article III, Texas Constitution, the district may construct, acquire, improve, maintain, or operate macadamized, graveled, or paved roads or turnpikes, or improvements in aid of those roads or turnpikes, inside the district.
(b)iiA project authorized by this section must meet or exceed the construction standards adopted by the North Central Texas Council of Governments, or its successor agency.
(c)iiThe district may not undertake a road project unless each municipality in whose corporate limits or extraterritorial jurisdiction the district is located consents by ordinance or resolution. If the district is located outside the extraterritorial jurisdiction of a municipality, the district may not undertake a road project unless each county in which the district is located consents by ordinance or resolution.
Sec.i8138.103.iiCERTIFICATE OF CONVENIENCE AND NECESSITY. (a) The district may pay out of bond proceeds or other available district money all expenses, including legal, engineering, and other fees, related to obtaining a new certificate of convenience and necessity under Chapter 13, Water Code, authorizing the district to provide retail water or sewer service inside or outside the district.
(b)iiThe district may pay out of bond proceeds or other available district money all expenses, including the purchase price, related to acquiring certificate of convenience and necessity rights from another retail public utility to allow the district to provide retail water or sewer service in the district.
Sec.i8138.104.iiCONTRACT WITH POLITICAL SUBDIVISION FOR WATER OR SEWER SERVICES. (a) The district may enter into a contract to allow a political subdivision to provide retail water or sewer service in the district. The contract may contain terms the board considers desirable, fair, and advantageous to the district.
(b)iiThe contract may provide that the district will construct or acquire and convey to the political subdivision a water supply or treatment system, a water distribution system, or a sanitary sewage collection or treatment system as necessary to provide water or sewer service in the district.
(c)iiThe district may use bond proceeds or other available district money to pay for its obligations and for services and facilities provided under the contract.
Tuesday, May 17, 2005 SENATE JOURNAL 2457
(d)iiIf the contract requires the district to make payments from taxes other than operation and maintenance taxes, the contract is subject to Section 49.108, Water Code.
Sec.i8138.105.iiLIMITATION ON USE OF EMINENT DOMAIN. The district may exercise the power of eminent domain outside the district only to acquire an easement necessary for a pipeline that serves the district.
[Sections 8138.106-8138.150 reserved for expansion]
SUBCHAPTER D. GENERAL FINANCIAL PROVISIONS
Sec.i8138.151.iiOPERATION AND MAINTENANCE TAX. (a) The district may impose a tax for any district operation and maintenance purpose in the manner provided by Section 49.107, Water Code.
(b)iiSection 49.107(f), Water Code, does not apply to reimbursements for projects constructed or acquired under Section 8138.102.
Sec.i8138.152.iiTAX TO REPAY BONDS. The district may impose a tax to pay the principal of and interest on bonds issued under Section 8138.201.
Sec.i8138.153.iiUTILITY PROPERTY EXEMPT FROM IMPACT FEES AND ASSESSMENTS. The district may not impose an impact fee or assessment on the property, including the equipment, rights-of-way, facilities, or improvements, of:
(1)iian electric utility or a power generation company as defined by Section 31.002, Utilities Code;
(2)iia gas utility as defined by Section 101.003 or 121.001, Utilities Code;
(3)iia telecommunications provider as defined by Section 51.002, Utilities Code;
(4)iia cable operator, as defined by 47 U.S.C. Section 522; or
(5)iia person who provides to the public advanced telecommunications services.
[Sections 8138.154-8138.200 reserved for expansion]
SUBCHAPTER E. BONDS
Sec.i8138.201.iiAUTHORITY TO ISSUE BONDS AND OTHER OBLIGATIONS. (a) The district may issue bonds or other obligations as provided by Chapters 49 and 54, Water Code, and to finance:
(1)iithe construction, maintenance, or operation of projects under Section 8138.102;
(2)iithe district's efforts to obtain a new certificate of convenience and necessity or to acquire certificate of convenience and necessity rights under Section 8138.103; or
(3)iithe district's contractual obligations under Section 8138.104.
(b)iiThe district may not issue bonds to finance projects authorized by Section 8138.102 unless the issuance is approved by a vote of a two-thirds majority of the voters of the district voting at an election called for that purpose.
(c)iiBonds or other obligations issued or incurred to finance projects authorized by Section 8138.102 may not exceed one-fourth of the assessed value of the real property in the district.
(d)iiSections 49.181 and 49.182, Water Code, do not apply to a project undertaken by the district under Section 8138.102 or to bonds issued by the district to finance the project.
2458 79th Legislature — Regular Session 71st Day
[Sections 8138.202-8138.250 reserved for expansion]
SUBCHAPTER F. DIVISION OF DISTRICT INTO MULTIPLE DISTRICTS
Sec.i8138.251.iiDIVISION OF DISTRICT; REQUIREMENTS. (a) At any time before the district issues indebtedness secured by taxes or net revenues, the district, including any annexed territory, may be divided into two or more new districts.
(b)iiA new district created by division of the district must be at least 100 acres.
(c)iiThe board may consider a proposal to divide the district on:
(1)iia petition of a landowner in the district; or
(2)iia motion by the board.
(d)iiIf the board decides to divide the district, the board shall:
(1)iiset the terms of the division, including names for the new districts and a plan for the payment or performance of any outstanding district obligations; and
(2)iiprepare a metes and bounds description for each proposed district.
Sec.i8138.252.iiELECTION FOR DIVISION OF DISTRICT. (a) After the board has complied with Section 8138.251(d), the board shall hold an election in the district to determine whether the district should be divided as proposed.
(b)iiThe board shall give notice of the election not later than the 35th day before the date of the election. The notice must state:
(1)iithe date and location of the election; and
(2)iithe proposition to be voted on.
(c)iiIf a majority of the votes are cast in favor of the division:
(1)iithe district shall be divided; and
(2)iinot later than the 30th day after the date of the election, the district shall provide written notice of the division to:
(A)iithe Texas Commission on Environmental Quality;
(B)iithe attorney general;
(C)iithe commissioners court of each county in which a new district is located; and
(D)iiany municipality having extraterritorial jurisdiction over territory in each new district.
(d)iiIf a majority of the votes are not cast in favor of the division, the district may not be divided.
Sec.i8138.253.iiELECTION OF DIRECTORS OF NEW DISTRICTS. (a) Not later than the 90th day after the date of an election in favor of the division of the district, the board shall:
(1)iiappoint itself as the board of one of the new districts; and
(2)iiappoint five directors for each of the other new districts.
(b)iiDirectors appointed under Subsection (a)(1) serve the staggered terms to which they were elected in the original district. Directors appointed under Subsection (a)(2) serve until the election for directors under Subsection (c).
(c)iiOn the uniform election date in May of the first even-numbered year after the year in which the directors are appointed, an election shall be held to elect five directors in each district for which directors were appointed under Subsection (a)(2). The directors shall draw lots to determine which two shall serve two-year terms and which three shall serve four-year terms.
Tuesday, May 17, 2005 SENATE JOURNAL 2459
(d)iiExcept as provided by Subsection (c), directors serve staggered four-year terms. On the uniform election date in May of each even-numbered year, the appropriate number of directors shall be elected.
Sec.i8138.254.iiCONTINUING POWERS AND OBLIGATIONS OF NEW DISTRICTS. (a) Each new district may incur and pay debts and has all powers of the original district created by this chapter.
(b)iiIf the district is divided as provided by this subchapter, the current obligations and any bond authorizations of the district are not impaired. Debts shall be paid by revenues or by taxes or assessments imposed on real property in the district as if the district had not been divided or by contributions from each new district as stated in the terms set by the board under Section 8138.251(d).
(c)iiAny other district obligation shall be divided pro rata among the new districts on an acreage basis or on other terms that are satisfactory to the new districts.
Sec.i8138.255.iiCONTRACT AUTHORITY OF NEW DISTRICTS. The new districts may contract with each other for:
(1)iiwater and wastewater services; or
(2)iiany other matter the boards of the new districts consider appropriate.
SECTIONi___.02.iiLas Lomas Municipal Utility District No. 4 of Kaufman County initially includes all the territory contained in the following described area:
TRACT 1
BEING a tract of land situated in the R. Mead Survey, Abstract No. 316, and the W.M. Simpson Survey, Abstract No. 453, Kaufman County, Texas, and being a part of the certain 442.406 acres tract of land as conveyed from Michael H. McDowell et al to the McDowell Clan Limited Company, recorded in Volume 1648, Page 39, of the Deed Records of Kaufman County, Texas, and a part of that called Second Tract of 147.4 acres, described in a deed from Thos. R. Bond to Thomas H. Crofts, recorded in Volume 413, Page 314, of the Deed Records of Kaufman County, Texas, and being more particularly described as follows;
COMMENCING at the northeast corner of a 15.332 acre tract conveyed to James E. Bates, as recorded in Volume 1172, Page 812, said rod being a point on the southeast line of the (New) Interstate Highway 20 (variable width right-of-way);
THENCE along the southeast line of the (New) Interstate Highway 20, the following courses:
N61826'00"E, 499.31 feet to a corner;
N56810'06"E, 614.11 feet to a corner;
N52828'55"E, 550.82 feet to a corner;
N55836'15"E, 1800.00 feet to a corner;
N58843'35"E, 550.82 feet to a corner;
N55836'15"E, 333.17 feet to the POINT OF BEGINNING;
THENCE Northeasterly, continuing along the southeast line of said (New) Interstate Highway 20, the following courses;
N55836'15"E, 466.83 feet to a corner;
N53858'03"E, 1050.43 feet to a corner;
N55836'15"E, 754.45 feet to the beginning of a tangent curve to the right;
2460 79th Legislature — Regular Session 71st Day
THENCE Northeasterly, along a tangent curve to the right which has a chord that bears N57826'55"E for 355.95 feet, a central angle of 03841'20" and a radius of 5529.58 feet, for an arc distance of 356.01 feet to the most northerly west corner of a tract of land as described in a deed to Harry Wayne Everett, recorded in Volume 1148, Page 696;
THENCE along the southwesterly line of said Everett tract, the following courses;
S44802'15"E, 1082.82 feet to a corner;
S43859'37"E, 434.78 feet to a corner;
S44844'00"W, 287.56 feet to the beginning of a curve to the right;
Southwesterly along the tangent curve to the right which has a chord bearing S59826'46"W, for 245.41 feet, a central angle of 29834'01" and a radius of 480.87 feet, for an arc distance of 248.15 feet to the end of said curve;
S17858'30"E, 138.44 feet to a corner;
S43829'26"W, 460.56 feet to an ell corner;
S42827'26E, 3519.51 feet to the south corner of said Everett tract, said corner also being the west corner of an 80.000 acre tract of land called Huneycutt Family Trust;
THENCE S44828'50"E, 1359.43 feet to a corner;
THENCE S44800'52"E, 308.37 feet to an ell corner;
THENCE S46809'05"W, 128.94 feet to the beginning of a non-tangent curve to the right;
THENCE Northwesterly, along the non-tangent curve to the right which has a chord that bears N65853'02"W for 3456.34 feet, a central angle of 38812'38" and a radius of 5280.00 feet, for an arc distance of 3521.23 feet to the end of said curve;
THENCE N46846'43"W, 1780.63 feet to the beginning of a tangent curve to the right;
THENCE Northwesterly, along the tangent curve to the right which has a chord that bears N42824'39"W for 804.26 feet, a central angle of 08844'09" and a radius of 5280.00 feet, for an arc distance of 805.04 feet to the end of said curve;
THENCE N44806'01"W, 249.64 feet to a corner;
THENCE N37855'56"W, 400.16 feet to a corner;
THENCE N45847'07" W, 780.18 feet to the POINT OF BEGINNING and containing 10,873,600 square feet or 249.623 acres of land, more or less.
Tract 2
BEING a tract of land situated in the J. W. WARD SURVEY, ABSTRACT NO. 596, and the W. M. SIMPSON SURVEY, ABSTRACT NO. 453, in Kaufman County, Texas, and being all of a called 288.239 acre tract of land described as Tract 1 in a deed to AP Terrell Limited Partnership, recorded in Volume 2324, Page 267 of the Deed Records of Kaufman County, Texas, and being more particularly described as follows, the bearing being referenced to the AP Terrell Limited Partnership Deed, and being more particularly described as follows:
BEGINNING at a point in the northerly right-of-way of I. H. 20, said point being the east corner of a called 20.575 acre tract of land described as Tract 9 in a deed to AP Dupont Limited Partnership, recorded in Volume 2504, Page 77 of said Deed Records, and the south corner of said 288.239 acre tract;
Tuesday, May 17, 2005 SENATE JOURNAL 2461
THENCE North 44 degrees 27 minutes 14 seconds West, along the northeast line of said 20.575 acre tract and the southwest line of said 288.239 acre tract, a distance of 889.56 feet to a point in the southeast line of a called 1012.488 acre tract described in a deed to AP Dupont Limited Partnership and the west corner of said 288.239 acre tract and the north corner of said 20.575 acre tract;
THENCE North 45 degrees 38 minutes 40 seconds East, along the southeast line of a said 1012.488 acre tract and the northwest line of said 288.239 acre tract, a distance of 7660.98 feet for the north corner of said 288.239 acre tract ;
THENCE South 44 degrees 24 minutes 55 seconds East, along the southwest line of a tract of land described in deed to C. L. Hamilton, Jr. recorded in Volume 528, Page 759 of the Deed Records, Kaufman County, Texas, and the northeast line of said 288.239 acre tract, a distance of 2008.20 feet;
THENCE South 46 degrees 14 minutes 17 seconds West, along the southeasterly line of said 288.239 acre tract, a distance of 797.13 feet;
THENCE South 44 degrees 04 minutes 45 seconds East, a distance of 222.22 feet to a point in the northerly right-of-way of I. H. 20 for the beginning of a non-tangent curve to the left;
THENCE Southwesterly, along the northerly right-of-way of I. H. 20 and along said non-tangent curve to the left which has a chord that bears South 56 degrees 59 minutes 44 seconds West for 288.05 feet, a central angle of 02 degrees 47 minutes 01 second and a radius of 5929.58 feet, for an arc distance of 288.08 feet to the end of said curve;
THENCE South 55 degrees 36 minutes 15 seconds West, continuing along the northerly right-of-way of I. H. 20, a distance of 904.46 feet;
THENCE South 57 degrees 53 minutes 41 seconds West, continuing along the northerly right-of-way of I. H. 20, a distance of 750.60 feet
THENCE South 55 degrees 36 minutes 15 seconds West, continuing along the northerly right-of-way of I. H. 20, a distance of 1150.00 feet;
THENCE South 50 degrees 42 minutes 18 seconds West, continuing along the northerly right-of-way of I. H. 20, a distance of 351.28 feet;
THENCE South 55 degrees 44 minutes 05 seconds West, continuing along the northerly right-of-way of I. H. 20, a distance of 2715.75 feet;
THENCE South 63 degrees 17 minutes 12 seconds West, continuing along the northerly right-of-way of I. H. 20, a distance of 839.80 feet to the POINT OF BEGINNING and containing 288.239 acres of land, more of less.
Tract 3
BEING a tract of land situated in the J. R. LEATH SURVEY, ABSTRACT NO. 305, the W. C. MOODY SURVEY, ABSTRACT NO. 321, the RICHARD MEAD SURVEY, ABSTRACT NO. 326, the LEWIS PEARCE SURVEY, ABSTRACT NO. 373, the WILLIAM SIMPSON SURVEY, ABSTRACT NO. 453, the J. W. WARD SURVEY, ABSTRACT NO. 596, and the T. A. WALDROP SURVEY, ABSTRACT NO. 597 in Kaufman County, Texas, and being all of a called 1012.488 acre tract of land described as Tract 1 in a deed to AP Dupont Limited Partnership recorded in Volume 2502, Page 77 of the Deed Records of Kaufman County, Texas, part of a called 1406.504 acre tract of land described as Tract 2 in said deed, all of a called 57.77 acre tract of land described as Tract 5 in said deed, all of a called 38.410 acre
2462 79th Legislature — Regular Session 71st Day
BEGINNING at a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set in the southwest right-of-way line of Spur 557 (variable right-of-way) for the most easterly corner of said 1012.488 acre tract (Tract 1) and the northwest corner of a called 131.36 acre tract of land described as Tract V in a deed to 148/I-20 Terrell Partnership, Ltd., recorded in Volume 1939, Page 341 of said Deed Records;
THENCE South 45 degrees 16 minutes 35 seconds West, along the southeasterly boundary of said tract 1 and the northwest lines of said Tract V and a called 120.00 acre tract of land described as Tract IV in said deed to 148/I-20 Terrell Partnership, Ltd., a distance of 2141.57 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set for the most westerly corner of said Tract IV;
THENCE South 45 degrees 02 minutes 34 seconds East, along the southwest line of said Tract IV, a distance of 99.72 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set for a re-entrant corner in said Tract 1 and the north corner of a called 80.083 acre tract of land described in a deed to C. L. Hamilton, Jr., recorded in Volume 528, Page 759 of said Deed Records;
THENCE South 45 degrees 05 minutes 40 seconds West, continuing along the southeasterly boundary of said Tract 1 and along the northwest line of said Hamilton tract, a distance of 1795.83 feet to a 1/2-inch iron rod found in the northeast line of a called 288.239 acre tract of land described as Tract 1 in a deed to AP Terrell Limited Partnership recorded in Volume 2324, page 267 of said Deed Records for the west corner of said Hamilton tract and a re-entrant corner of said Tract 1;
THENCE North 44 degrees 23 minutes 07 seconds West, continuing along the southeasterly boundary of said Tract 1 and the northeast line of said 288.239 acre tract, a distance of 99.93 feet to a 5/8-inch iron rod found for the most northerly corner of said 288.239 acre tract;
THENCE South 45 degrees 29 minutes 35 seconds West, along the common line between said Tract 1 and said 288.239 acre tract, a distance of 6060.97 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set for an angle point;
Tuesday, May 17, 2005 SENATE JOURNAL 2463
THENCE South 45 degrees 28 minutes 26 seconds West, continuing along said common line, a distance of 1601.11 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set for the west corner of said 288.239 acre tract and the north corner of said Tract 9;
THENCE South 44 degrees 25 minutes 44 seconds East, along the northeast line of said Tract 9 and the southwest line of said 288.239 acre tract, a distance of 898.56 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set in the northerly right-of-way of Interstate Highway 20 ( variable right-of-way) for the south corner of said 288.239 acre tract and the east corner of said Tract 9;
THENCE along the northerly right-of-way of Interstate Highway 20 the following courses and distances:
South 63 degrees 04 minutes 03 seconds West, a distance of 631.14 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set for corner;
South 75 degrees 45 minutes 02 seconds West, a distance of 1122.84 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set for corner;
South 77 degrees 15 minutes 22 seconds West, a distance of 2160.34 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set for corner;
South 87 degrees 10 minutes 56 seconds West, a distance of 406.08 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set for corner;
South 77 degrees 15 minutes 22 seconds West, a distance of 1593.39 feet to a 5/8-inch iron rod found for the most southerly southwest corner of said Tract 1;
THENCE North 44 degrees 55 minutes 22 seconds West, along the southwest line of said Tract 1, a distance of 1236.59 feet to the west corner thereof and the south corner of a called 226.262 acre tract of land described in a deed to Stephen Edward Cummings and wife Tamara Cannon Cummings recorded in Volume 1105, Page 405 of said Deed Records;
THENCE North 44 degrees 40 minutes 05 seconds East, along the most southerly northwest line of said Tract 1 and the southeast line of said Cummings tract, a distance of 2494.90 feet to a point in the approximate center of Big Brushy Creek;
THENCE along the approximate center of Big Brushy Creek the following courses and distances
North 06 degrees 12 minutes 18 seconds West, a distance of 345.93 feet;
North 09 degrees 55 minutes 23 seconds West, a distance of 554.42 feet;
North 08 degrees 46 minutes 10 seconds West, a distance of 381.09 feet;
North 05 degrees 35 minutes 18 seconds East, a distance of 162.78 feet;
North 22 degrees 31 minutes 18 seconds West, a distance of 166.93 feet;
North 09 degrees 47 minutes 43 seconds West, a distance of 320.94 feet;
North 05 degrees 05 minutes 10 seconds West, a distance of 140.62 feet;
North 23 degrees 45 minutes 30 seconds East, a distance of 76.71 feet;
North 11 degrees 46 minutes 42 seconds West, a distance of 70.46 feet;
North 03 degrees 51 minutes 18 seconds West, a distance of 166.62 feet;
North 13 degrees 06 minutes 48 seconds West, a distance of 273.76 feet;
North 12 degrees 55 minutes 02 seconds East, a distance of 79.03 feet;
North 05 degrees 00 minutes 55 seconds West, a distance of 192.13 feet;
North 07 degrees 15 minutes 15 seconds East, a distance of 69.36 feet;
North 05 degrees 47 minutes 42 seconds West, a distance of 88.93 feet;
2464 79th Legislature — Regular Session 71st Day
North 19 degrees 00 minutes 10 seconds East, a distance of 143.40 feet;
North 07 degrees 53 minutes 29 seconds East, a distance of 76.28 feet;
North 18 degrees 45 minutes 36 seconds East, a distance of 63.08 feet;
North 09 degrees 31 minutes 32 seconds East, a distance of 132.11 feet;
North 02 degrees 16 minutes 10 seconds West, a distance of 71.67 feet;
North 14 degrees 29 minutes 56 seconds West, a distance of 124.10 feet;
North 31 degrees 34 minutes 04 seconds West, a distance of 80.42 feet;
North 20 degrees 56 minutes 55 seconds West, a distance of 85.21 feet;
North 02 degrees 03 minutes 48 seconds East, a distance of 66.26 feet;
North 04 degrees 20 minutes 07 seconds West, a distance of 107.71 feet;
North 25 degrees 55 minutes 20 seconds West, a distance of 126.58 feet;
North 33 degrees 42 minutes 49 seconds West, a distance of 66.57 feet;
North 48 degrees 30 minutes 57 seconds West, a distance of 45.41 feet;
North 75 degrees 33 minutes 32 seconds West, a distance of 35.14 feet to the west corner of said Tract 4 and the north corner of said Cummings tract, said point being in the southeasterly boundary of said tract 2;
THENCE South 45 degrees 08 minutes 13 seconds West, along the northwesterly boundary of said Cummings tract and the southeasterly boundary of said Tract 2, a distance of 636.24 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set for corner;
THENCE South 25 degrees 51 minutes 12 seconds West, continuing along the northwesterly boundary of said Cummings tract and the southeasterly boundary of said Tract 2, a distance of 1632.88 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set for corner;
THENCE South 44 degrees 51 minutes 12 seconds West, continuing along the northwesterly boundary of said Cummings tract and the southeasterly boundary of said Tract 2, a distance of 864.04 feet to the east corner of a called 10.0 acre tract of land described in a deed to Floyd Darden and John Darden recorded in Volume 1033, Page 384 of said Deed Records;
THENCE North 00 degrees 51 minutes 17 seconds West, a distance of 10481.50 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set in the south line of the Union Pacific Railway (100' right-of-way) and in the north line of said Tract 2;
THENCE South 88 degrees 06 minutes 52 seconds East, along the north line of said Tract 2 and the south line of the Railway, a distance of 8059.22 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set for corner;
THENCE South 02 degrees 52 minutes 47 seconds West, a distance of 98.14 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set for the northeast corner of said Tract 8;
THENCE South 10 degrees 52 minutes 20 seconds West, along the most northerly east line of said Tract 8, a distance of 191.83 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set for corner;
THENCE South 78 degrees 58 minutes 12 seconds East, a distance of 18.76 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set in the approximate center of County Road 238 (undedicated public road) and the west line of said Tract 6A;
Tuesday, May 17, 2005 SENATE JOURNAL 2465
THENCE North 09 degrees 34 minutes 14 seconds East, along the approximate center of County Road 238 and the west line of said Tract 6A, a distance of 194.23 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set for the northwest corner of said Tract 6A;
THENCE South 88 degrees 13 minutes 07 seconds East, along the north line of said Tract 6A, a distance of 439.54 feet to a concrete monument found for the northeast corner of said Tract 6A and the northwest corner of a 40.186 acre tract of land described in a deed to AP Dupont Limited Partnership recorded in Volume 2489, Page 481 of said Deed Records;
THENCE along the southwesterly right-of-way of Spur 557 as follows:
South 62 degrees 14 minutes 39 seconds East, a distance of 239.63 feet to a concrete monument for corner;
South 56 degrees 59 minutes 45 seconds East, a distance of 398.38 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set for corner;
South 61 degrees 40 minutes 02 seconds East, a distance of 801.48 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set for corner;
South 58 degrees 29 minutes 39 seconds East, a distance of 1701.26 feet to a concrete monument found for corner;
South 60 degrees 45 minutes 58 seconds East, a distance of 399.56 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set for corner;
South 58 degrees 10 minutes 40 seconds East, a distance of 197.28 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set for corner;
South 58 degrees 08 minutes 34 seconds East, a distance of
1002.54 feet to a concrete monument found for corner;
South 54 degrees 48 minutes 28 seconds East, a distance of 901.01 feet to a concrete monument found at a cut-back corner for County Road 305;
South 00 degrees 24 minutes 39 seconds East, along said cut-back, a distance of 306.16 feet to a concrete monument found for corner;
South 48 degrees 51 minutes 21 seconds East, a distance of 139.01 feet to a concrete monument found for corner;
North 68 degrees 37 minutes 22 seconds East, along a cut-back iron rod with cap marked "PETITT - RPLS 4087" set for corner;
South 62 degrees 55 minutes 42 seconds East, a distance of 908.33 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set for corner;
South 62 degrees 41 minutes 47 seconds East, a distance of 1218.13 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set for corner;
South 62 degrees 58 minutes 31 seconds East, a distance of 65.33 feet to the POINT OF BEGINNING and containing 3152.439 acres of land, SAVE AND EXCEPT the following two (2) tracts of land:
SAVE AND EXCEPT TRACT 1
BEING a tract of land situated in the LEWIS PEARCE SURVEY, ABSTRACT NO. 373, in Kaufman County, Texas, and being all of a called 10.000 acre tract of land described in a deed to Robert A. Kaus and wife Martha Lee Kaus recorded in Volume 1050, Page 120 of the Deed Records of Kaufman County, Texas, and all of a
2466 79th Legislature — Regular Session 71st Day
BEGINNING at a 3/8-inch iron rod found in the approximate center of County Road 238 (undedicated public road) for the north corner of said 30.000 tract and the west corner of a called 46.324 acre tract of land described as Tract 6B in a deed to AP Dupont Limited partnership recorded in Volume 2502, page 77 of said Deed Records;
THENCE South 45 degrees 11 minutes 54 seconds East, along the northeast line of said 30.000 acre tract and the southwest line of said tract 6B, a distance of 3261.17 feet to a 3/8-inch iron rod found for the east corner of said 30.000 acre tract and the south corner of said Tract 6B, said point also being located in the northwest line of a called 242.39 acre tract of land described as Tract 10;
THENCE South 44 degrees 50 minutes 02 seconds West, along the southeast lines of said 30.000 acre tract and said 10.000 acre tract, and the northwest line of said Tract 10, a distance of 534.82 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set for the south corner of said 10.000 acre tract and the east corner of a called 55.84 acre tract described as Tract 11 in said AP Dupont deed;
THENCE North 45 degrees 11 minutes 25 seconds West, along the southwest line of said 10.00 acre tract and the northeast line of said Tract 11, a distance of 3262.61 feet to a 3/8-inch iron found in the approximate center of County Road 238 for the west corner of said 10.000 acre tract and the north corner of said Tract 11;
THENCE North 44 degrees 59 minutes 17 seconds East, along the approximate center of County Road 238 and the northwest lines of said 10.000 acre tract and said 30.000 acre tract; a distance of 534.37 feet to the POINT OF BEGINNING and containing 40.032 acres of land, more of less.
SAVE AND EXCEPT TRACT 2
BEING a tract of land situated in the LEWIS PEARCE SURVEY, ABSTRACT NO. 373, in Kaufman County, Texas, and being all of a called 20.000 acre tract of land described in a deed to James Edgar Crawford, Sr., and wife Earlena Faye Crawford recorded in Volume 1056, Page 531 of the Deed Records of Kaufman County, Texas, and all of a called 20.000 acre tract described in a deed to the Texas Veterans Land Board recorded in Volume 1070, Page 352 of said Deed Records, and being more particularly described as follows:
BEGINNING at a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set in the approximate center of County Road 238 (undedicated public road) for the north corner of said Texas Veterans Land Board tract and the west corner of a called 55.84 acre tract of land described as Tract 11 in a deed to AP Dupont Limited Partnership recorded in Volume 2502, Page 77 of said Deed Records;
THENCE South 45 degrees 13 minutes 34 seconds East, along the common line between said Land Board tract and said Tract 11, a distance of 1291.85 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set for the most northerly east corner of said Land Board tract and a re-entrant corner in said Tract 11
THENCE South 00 degrees 11 minutes 46 seconds East, along the most southerly west line of said Tract 11 and the east lines of said Land Board tract and said Crawford tract, a distance of 1381.15 feet to a 5/8-inch iron rod with cap marked
Tuesday, May 17, 2005 SENATE JOURNAL 2467
THENCE North 45 degrees 16 minutes 57 seconds West, along the southwest line of said Crawford tract and the northeast line of said Tract 6D, a distance of 2274.35 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set in the approximate center of County Road 238 for the west corner of said Crawford tract and the north corner of said tract 6D;
THENCE North 45 degrees 08 minutes 53 seconds East, along the approximate center of County Road 238 and the northwest line said Tract 6D, a distance of 979.39 feet to the POINT OF BEGINNING and containing 40.057 acres of land, more of less, leaving a total area of 3072.350 acres, more or less.
Tract 4
BEING a tract of land situated in the WILLIAM SIMPSON SURVEY, ABSTRACT NO. 453, in Kaufman County, Texas, and being all of a called 362.357 acre tract of land described as Tract 3 in a deed to AP Dupont Limited Partnership recorded in Volume 2502, Page 77 of the Deed Records of Kaufman County, Texas, said land containing a portion of a called 76 acre tract of land described as Tract 4 in a deed to Maher Properties One recorded in Volume 694, Page 167 of said Deed Records, and being more particularly described as follows:
BEGINNING at a 1/2-inch iron rod found in the center of F. M. 148 (80' right-of-way) for the east corner of said Tract 3;
THENCE South 45 degrees 32 minutes 14 seconds West, along the center of F. M. 148 and the southeast line of said Tract 3, passing a concrete monument found for the beginning of a curve to the left at 2741.39 feet, 38.24 feet right, a total distance of 3002.67 feet to a 1/2-inch iron rod found for the easterly southeast corner of said Tract 3;
THENCE South 83 degrees 54 minutes 51 seconds West, along the southerly boundary of said Tract 3 and the northerly boundary of a called 155 acre tract of land described as Tract 1 in a deed to Jerry R. Sims and wife Margie Sims recorded in Volume 1124, Page 103 of said Deed Records, a distance of 1129.08 feet to a 3/8-inch iron rod found for corner;
THENCE North 79 degrees 01 minutes 39 seconds West, continuing along the southerly boundary of said Tract 3 and the northerly boundary of said 155 acre tract, a distance of 929.89 feet to a 1/2-inch iron rod found for corner;
THENCE North 79 degrees 03 minutes 39 seconds West, continuing along the southerly line of said Tract 3 and the northerly line of said 155 acre tract, distance of 360.00 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set for corner;
THENCE North 77 degrees 41 minutes 39 seconds West, continuing along the southerly line of said Tract 3 and the northerly line of said 155 acre tract, a distance of 205.00 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set for corner;
THENCE North 85 degrees 30 minutes 59 seconds West, continuing along the southerly line of said Tract 3 and the northerly line of said 155 acre tract, a distance of 289.63 feet to a point in the approximate center of Big Brushy Creek;
2468 79th Legislature — Regular Session 71st Day
THENCE along the approximate center of Big Brushy Creek the following courses and distances:
North 23 degrees 14 minutes 25 seconds West, a distance of 54.89 feet;
North 04 degrees 05 minutes 31 seconds West, a distance of 216.07 feet;
South 51 degrees 10 minutes 14 seconds East, a distance of 171.26 feet;
North 41 degrees 26 minutes 55 seconds East, a distance of 167.67 feet;
North 76 degrees 53 minutes 55 seconds East, a distance of 118.88 feet;
North 25 degrees 24 minutes 54 seconds East, a distance of 196.89 feet;
North 49 degrees 32 minutes 49 seconds West, a distance of 195.65 feet;
North 18 degrees 50 minutes 34 seconds West, a distance of 237.39 feet;
North 23 degrees 34 minutes 39 seconds East, a distance of 165.47 feet;
North 03 degrees 20 minutes 51 seconds East, a distance of 101.63 feet;
North 40 degrees 18 minutes 31 seconds West, a distance of 172.48 feet;
North 17 degrees 35 minutes 08 seconds West, a distance of 97.88 feet;
North 08 degrees 29 minutes 33 seconds East, a distance of 76.51 feet;
North 13 degrees 52 minutes 15 seconds West, a distance of 69.50 feet;
North 21 degrees 42 minutes 00 seconds East, a distance of 69.26 feet;
North 21 degrees 26 minutes 22 seconds West, a distance of 146.39 feet;
North 00 degrees 08 minutes 09 seconds West, a distance of 158.73 feet;
North 09 degrees 54 minutes 29 seconds West, a distance of 77.56 feet to a point in the westerly boundary of said Tract 3, said point also being located in the northwest line of said Maher tract and the southeast line of a called 100 acre tract of land described as Tract 1 in a deed to Kenneth L. Cleaver and wife Cynthia L. Cleaver recorded in Volume 1173, Page 351 of said Deed Records;
THENCE North 45 degrees 27 minutes 16 seconds East, along the northwest line of Maher tract and the southeast line of said Cleaver tract, a distance of 54.41 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set for corner;
THENCE North 44 degrees 51 minutes 27 seconds West, along the southwest line of said Tract 3 and the northeast line of said Cleaver 100 acre tract and the northeast line of the remainder of a called 117.93 acre tract described as Tract 2 in said Cleaver deed, a distance of 1535.89 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set in the southerly right-of-way line of I. H. 20 (variable right-of-way) for the west corner of said Tract 3;
THENCE along the southerly right-of-way of I. H. 20 the following courses and distances:
North 77 degrees 15 minutes 22 seconds East, a distance of 1291.15 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set for corner;
North 68 degrees 43 minutes 31 seconds East, a distance of 404.48 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set for corner;
North 77 degrees 15 minutes 22 seconds East, a distance of 2377.18 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" set for the north corner of said Tract 3;
THENCE South 44 degrees 39 minutes 40 seconds East, along the northeast line of said Tract 3 and the southwest line of a called 26.796 acre tract of land described in a deed to Milowe Jungjohann and wife Janice Jungjohann recorded in Volume 764, Page 444 and the southwest line of a called 23.017 acre tract described in a deed to
Tuesday, May 17, 2005 SENATE JOURNAL 2469
SECTIONi___.03.ii(a) The legal notice of the intention to introduce this article, setting forth the general substance of this article, has been published as provided by law, and the notice and a copy of this article have been furnished to all persons, agencies, officials, or entities to which they are required to be furnished under Section 59, Article XVI, Texas Constitution, and Chapter 313, Government Code.
(b)iiThe governor, one of the required recipients, has submitted the notice and article to the Texas Commission on Environmental Quality.
(c)iiThe Texas Commission on Environmental Quality has filed its recommendations relating to this article with the governor, the lieutenant governor, and the speaker of the house of representatives within the required time.
(d)iiAll requirements of the constitution and laws of this state and the rules and procedures of the legislature with respect to the notice, introduction, and passage of this article are fulfilled and accomplished.
ARTICLEi__.iTHE KINGSBOROUGH MUNICIPAL UTILITY DISTRICT NOS. 1, 2, 3, 4, AND 5 OF KAUFMAN COUNTY
SECTIONi__.01.iiSection 5, Chapter 1299, Acts of the 78th Legislature, Regular Session, 2003, is amended to read as follows:
Sec.i5.iiBOUNDARIES. The boundaries of each district are as follows:
(1)iiKingsborough Municipal Utility District No. 1:
BEING a tract of land located in the JOHN MOORE SURVEY, ABSTRACT NO. 309, Kaufman County, Texas and the MARTHA MUSICK SURVEY, ABSTRACT NO. 312, Kaufman County, Texas and being a part of a tract of land as described as Tract 4 in Deed to 2219 KAUFMAN PARTNERS, L.P., a Texas Limited Partnership, recorded in Volume 2127 Page 184, Deed Records, Kaufman County, Texas and being a part of land as described as Tract 5 in Deed to 2219 KAUFMAN PARTNERS, L.P., a Texas Limited Partnership, recorded in Volume 2127, Page 184, Deed Records, Kaufman County, Texas and being more particularly described as follows:
BEGINNING at a point in the Southeast line of F.M. 741, a 90 foot right-of-way, at the most Easterly corner of said Tract 5;
THENCE South 44 degrees 19 minutes 46 seconds West, along the South line of said Tract 5, a distance of 1400.75 feet to a point for corner (Basis of Bearings derived from Texas State Plane Coordinates, NAD83, North Central Zone);
THENCE North 35 degrees 05 minutes 57 seconds West, a distance of 131.93 feet to a point for corner;
THENCE North 58 degrees 29 minutes 36 seconds West, a distance of 188.90 feet to a point at the beginning of a curve to the right, having a central angle of 07 degrees 17 minutes 11 seconds, a radius of 3016.59 feet, and a chord bearing and distance of North 56 degrees 15 minutes 31 seconds West, 383.36 feet;
2470 79th Legislature — Regular Session 71st Day
THENCE Northwesterly, along said curve to the right, an arc distance of 383.62 feet to a point at the beginning of a reverse curve to the right, having a central angle of 23 degrees 17 minutes 48 seconds, a radius of 948.15 feet, and a chord bearing and distance of North 64 degrees 25 minutes 07 seconds, 382.87 feet;
THENCE Northwesterly, along said curve to the left, an arc distance of 385.52 to a point for corner;
THENCE North 78 degrees 23 minutes 10 seconds West, a distance of 394.94 feet to a point at the beginning of a non-tangent curve to the right, having a central angle of 47 degrees 33 minutes 08 seconds, a radius of 1126.20 feet, and a chord bearing and distance of South 28 degrees 55 minutes 42 seconds West, 908.09 feet;
THENCE Southwesterly, along said curve to the right, an arc distance of 934.69 feet to a point at the beginning of a reverse curve to the left, having a central angle of 20 degrees 13 minutes 06 seconds, a radius of 2271.63 feet, and a chord bearing and distance of South 42 degrees 35 minutes 44 seconds West, 797.45 feet;
THENCE Southwesterly, along said curve to the left, an arc distance of 801.60 feet to a point for corner;
THENCE South 48 degrees 25 minutes 39 seconds West, a distance of 159.16 feet to a point for corner;
THENCE South 79 degrees 27 minutes 33 seconds West, a distance of 223.78 feet to a point for corner;
THENCE South 86 degrees 18 minutes 27 seconds West, a distance of 577.69 feet to a point for corner;
THENCE South 89 degrees 44 minutes 01 seconds West, a distance of 192.92 feet to a point at the beginning of a curve to the left, having a central angle of 31 degrees 13 minutes 53 seconds, a radius of 1066.44 feet, and a chord bearing and distance of South 74 degrees 07 minutes 05 seconds West, 574.14 feet;
THENCE Southwesterly, along said curve to the left, an arc distance of 581.31 feet to a point for corner;
THENCE South 78 degrees 24 minutes 06 seconds West, a distance of 756.13 feet to a point for corner;
THENCE North 77 degrees 31 minutes 58 seconds West, a distance of 1549.11 feet to a point for corner in the Northwest line of said Tract 5;
THENCE North 44 degrees 34 minutes 48 seconds East, a distance of 2263.55 feet to a point at the most Southerly corner of said Tract 4;
THENCE, along the boundary lines of said Tract 4, the following seventeen (17) courses and distances:
North 44 degrees 20 minutes 17 seconds West, a distance of 763.42 feet to a point for corner;
North 44 degrees 46 minutes 22 seconds East, a distance of 110.79 feet to a point for corner;
North 45 degrees 14 minutes 20 seconds West, a distance of 1368.08 feet to a point for corner;
North 44 degrees 54 minutes 14 seconds East, a distance of 247.82 feet to a point for corner;
South 68 degrees 10 minutes 49 seconds East, a distance of 629.95 feet to a point for corner;
Tuesday, May 17, 2005 SENATE JOURNAL 2471
North 44 degrees 19 minutes 24 seconds East, a distance of 851.60 feet to a point for corner;
North 45 degrees 55 minutes 11 seconds West, a distance of 1118.77 feet to a point for corner;
North 25 degrees 16 minutes 50 seconds East, a distance of 918.22 feet to a point for corner;
North 27 degrees 52 minutes 28 seconds East, a distance of 711.94 feet to a point for corner;
North 44 degrees 02 minutes 09 seconds East, a distance of 694.12 feet to a point for corner, said point being in the Southwest line of said F.M. 741;
Southeasterly, along the Southwest line of said F.M. 741, the following fourteen (14) courses and distances:
South 45 degrees 14 minutes 23 seconds East, a distance of 270.47 feet to a point at the beginning of a curve to the right, having a central angle of 09 degrees 32 minutes 19 seconds, a radius of 999.93 feet, and a chord bearing and distance of South 40 degrees 27 minutes 07 seconds East, 166.28 feet;
Southeasterly, along said curve to the right, an arc distance of 166.47 feet to a point for corner;
South 45 degrees 13 minutes 17 seconds East, a distance of 165..79 feet to a point at the beginning of a curve to the left, having a central angle of 03 degrees 03 minutes 24 seconds, a radius of 11472.09 feet, and a chord bearing and distance of South 46 degrees 44 minutes 59 seconds East, 611.94 feet;
Southeasterly, along said curve to the left, an arc distance of 612.02 feet to a point for corner;
South 45 degrees 21 minutes 23 seconds East, a distance of 189.56 feet to a point at the beginning of a curve to the left, having a central angle of 04 degrees 13 minutes 00 seconds, a radius of 2993.57 feet, and a chord bearing and distance of South 47 degrees 27 minutes 53 seconds, 220.26 feet;
Southeasterly, along said curve to the left, an arc distance of 220.31 feet to a point for corner;
South 49 degrees 34 minutes 23 seconds East, passing the most Easterly Corner of said Tract 4 and the most Northerly corner of said Tract 5 at a distance of 74.77 feet and continuing for a total of 222.82 feet to a point at the beginning of a curve to the left, having a central angle of 07 degrees 34 minutes 00 seconds, a radius of 1858.59 feet, and a chord bearing and distance of South 53 degrees 21 minutes 23 seconds East, 245.27 feet;
Southeasterly, along said curve to the left, an arc distance of 245.45 feet to a point for corner;
South 57 degrees 08 minutes 23 seconds East, a distance of 299.17 feet to a point at the beginning of a curve to the left, having a central angle of 02 degrees 58 minutes 43 seconds, a radius of 11472.09 feet, and a chord bearing and distance of South 55 degrees 37 minutes 55 seconds East, 596.34 feet;
Southeasterly, along said curve to the left, an arc distance of 596.39 feet to a point for corner;
2472 79th Legislature — Regular Session 71st Day
South 57 degrees 07 minutes 15 seconds East, a distance of 329.76 feet to a point at the beginning of a curve to the right, having a central angle of 12 degrees 11 minutes 38 seconds, a radius of 5655.58 feet, and a chord bearing and distance of South 51 degrees 01 minutes 28 seconds, 1201.38 feet;
South 44 degrees 55 minutes 38 East, a distance of 752.58 feet to a point for corner;
South 45 degrees 17 minutes 35 seconds East, a distance of 239.42 feet to the POINT OF BEGINNING and containing 553.876 acres of land, more or less.
(2)iiKingsborough Municipal Utility District No. 2:
BEING a tract of land located in the JOHN MOORE SURVEY, ABSTRACT NO. 309, Kaufman County, Texas and and being a part of a tract of land as described as Tract 7 in Deed to 2219 KAUFMAN PARTNERS, L.P., a Texas Limited Partnership, recorded in Volume 2127 Page 184, Deed Records, Kaufman County, Texas and being more particularly described as follows:
COMMENCING at a point in the Southeast line of F.M. 741, a 90' right-of-way, at the most Westerly corner of said Tract 7;
THENCE North 44 degrees 08 minutes 33 seconds East (Basis of Bearing derived from Texas State Plane Coordinates, NAD83, North Central Zone), a distance of 4246.13 feet to the POINT OF BEGINNING of the tract of land herein described:
THENCE Northeasterly, along the Southeast line of said F.M. 741, the following four (4) courses and distances:
North 44 degrees 20 minutes 40 seconds East, a distance of 869.52 feet to a point for corner;
North 44 degrees 30 minutes 36 seconds East, a distance of 699.51 feet to a point for corner;
North 44 degrees 24 minutes 12 seconds East, a distance of 1291.88 feet to a point at the beginning of a curve to the left, having a central angle of 11 degrees 23 minutes 37 seconds, a radius of 761.20 feet, and a chord bearing and distance of North 38 degrees 42 minutes 24 seconds East, 151.12 feet;
Northeasterly, along said curve to the left, an arc distance of 151.37 feet to a point for corner;
THENCE North 44 degrees 24 minutes 12 seconds East, a distance of 463.83 feet to a point at the beginning of a curve to the left, having a central angle of 40 degrees 09 minutes 15 seconds, a radius of 127.30 feet, and a chord bearing and distance of North 24 degrees 19 minutes 02 seconds East, 87.40 feet;
THENCE Northeasterly, along said curve to the left, an arc distance of 89.21 feet to a point for corner;
THENCE North 44 degrees 24 minutes 11 seconds East, a distance of 14.48 feet to a point for corner;
THENCE South 46 degrees 04 minutes 07 seconds East, a distance of 3434.03 feet to a point at the most Easterly corner of said Tract 7;
THENCE South 44 degrees 18 minutes 10 seconds West, along the Southeast line of said Tract 7, a distance of 4558.23 feet to a point for corner;
Tuesday, May 17, 2005 SENATE JOURNAL 2473
THENCE North 18 degrees 17 minutes 14 seconds West, a distance of 2799.64 feet to a point at the beginning of a curve to the left, having a central angle of 63 degrees 55 minutes 03 seconds, a radius of 500.00 feet, and a chord bearing and distance of North 50 degrees 14 minutes 46 seconds West, 529.31 feet;
THENCE Northwesterly, along said curve to the left, an arc distance of 557.79 feet to a point for corner;
THENCE North 82 degrees 12 minutes 17 seconds West, a distance of 476.05 feet to the POINT OF BEGINNING and containing 291.986 acres of land, more or less.
(3)iiKingsborough Municipal Utility District No. 3:
BEING a tract of land located in the JOHN MOORE SURVEY, ABSTRACT NO. 309, Kaufman County, Texas and being part of a tract of land described in Deed to 2219 KAUFMAN PARTNERS, L.P., recorded in Volume 2127, Page 179, Deed Records, Kaufman County, Texas, and being all of a tract of land described as Tract 6 in Deed to 2219 KAUFMAN PARTNERS, L.P., a Texas Limited Partnership, recorded in Volume 2127 Page 184, Deed Records, Kaufman County, Texas and being a part of a tract of land as described as Tract 5 in Deed to 2219 KAUFMAN PARTNERS, L.P., a Texas Limited Partnership, recorded in Volume 2127, Page 184, Deed Records, Kaufman County, Texas, and being more particularly described as follows:
BEGINNING at a point at the North end of a corner clip at the intersection of the Northwest line of F.M. 741, a 90' right-of-way, with Northeast line of F.M. 2757, a 100' right-of-way;
THENCE Northwesterly, along the Northeast line of said F.M. 2757, the following three (3) courses and distances:
North 44 degrees 19 minutes 40 seconds West, a distance of 1248.09 feet to a point for corner;
North 45 degrees 25 minutes 40 seconds West, a distance of 624.62 feet to a point for corner;
North 45 degrees 38 minutes 40 seconds West, a distance of 3304.71 feet to a point at the most Westerly corner of said Tract 5;
THENCE North 44 degrees 34 minutes 48 seconds East, a distance of 1398.41 feet to a point for corner;
THENCE South 77 degrees 31 minutes 58 seconds East, a distance of 1549.11 feet to a point for corner;
THENCE North 78 degrees 24 minutes 06 seconds East, a distance of 756.13 feet to a point at the beginning of a curve to the right, having a central angle of 31 degrees 13 minutes 53 seconds, a radius of 1066.44 feet, and a chord bearing and distance of North 74 degrees 07 minutes 05 seconds East, 574.14 feet;
THENCE Northeasterly, along said curve to the right, an arc distance of 581.31 feet to a point for corner;
THENCE North 89 degrees 44 minutes 01 seconds East, a distance of 192.92 feet to a point for corner;
THENCE North 86 degrees 18 minutes 27 seconds East, a distance of 577.69 feet to a point for corner;
2474 79th Legislature — Regular Session 71st Day
THENCE North 79 degrees 27 minutes 33 seconds East, a distance of 223.78 feet to a point for corner;
THENCE North 48 degrees 25 minutes 39 seconds East, a distance of 159.16 feet to a point at the beginning of a curve to the right, having a central angle of 20 degrees 13 minutes 06 seconds, a radius of 2271.63 feet, and a chord bearing and distance of North 42 degrees 35 minutes 44 seconds East, 797.45 feet;
THENCE Northeasterly, along said curve to the right, an arc distance of 801.60 feet to a point at the beginning of a reverse curve to the left, having a central angle of 47 degrees 33 minutes 09 seconds, a radius of 1126.20 feet, and a chord bearing and distance of North 28 degrees 55 minutes 42 seconds East, 908.09 feet;
THENCE Northeasterly, along said curve to the left, an arc distance of 934.69 feet to a point for corner;
THENCE South 78 degrees 23 minutes 10 seconds East, a distance of 394.94 feet to a point at the beginning of a curve to the right, having a central angle of 23 degrees 17 minutes 48 seconds, a radius of 948.15 feet, and a chord bearing and distance of South 64 degrees 25 minutes 07 seconds East, 382.87 feet;
THENCE Southeasterly, along said curve to the right, an arc distance of 385.52 feet to a point at the beginning of a reverse curve to the left, having a central angle of 07 degrees 17 minutes 11 seconds, a radius of 3016.59 feet, and a chord bearing and distance of South 56 degrees 15 minutes 31 seconds East, 383.36 feet;
THENCE Southeasterly, along said curve to the left, an arc distance of 383.62 feet to a point for corner;
THENCE South 58 degrees 29 minutes 36 seconds East, a distance of 188.90 feet to a point for corner;
THENCE South 35 degrees 05 minutes 57 seconds East, a distance of 131.93 feet to a point for corner;
THENCE South 44 degrees 45 minutes 27 seconds East, a distance of 1448.35 feet to a point for corner, said point being in the Northwest line of said F.M. 741;
THENCE Southeasterly, along the Northwest line of said F.M. 741, the following seven (7) courses and distances:
South 44 degrees 24 minutes 12 seconds West, a distance of 544.98 feet to a point for corner;
South 45 degrees 25 minutes 26 seconds West, a distance of 10.00 feet to a point for corner;
South 44 degrees 30 minutes 36 seconds West, a distance of 700.00 feet to a point for corner;
South 45 degrees 39 minutes 20 seconds East, a distance of 10.00 feet to a point for corner;
South 44 degrees 20 minutes 40 seconds West, a distance of 1798.29 feet to a point for corner;
South 44 degrees 26 minutes 34 seconds West, a distance of 792.04 feet to a point for corner;
South 43 degrees 58 minutes 26 seconds West, a distance of 2424.34 feet to a point for corner;
Tuesday, May 17, 2005 SENATE JOURNAL 2475
THENCE South 89 degrees 30 minutes 06 seconds West, a distance of 135.36 feet to the POINT OF BEGINNING and containing 531.150 acres of land, more or less.
(4)iiKingsborough Municipal Utility District No. 4:
BEING a tract of land located in the MARTHA MUSICK SURVEY, ABSTRACT NO. 312, Kaufman County, Texas and being a part of a tract of land as described as Tract 2 in Deed to 2219 KAUFMAN PARTNERS, L.P., a Texas Limited Partnership, recorded in Volume 2127 Page 184, Deed Records, Kaufman County, Texas and being more particularly described as follows:
BEGINNING at a point in the Northeast line of F.M. 741, a 90 foot right-of-way, at the most Southerly corner of said Tract 2;
THENCE Northwesterly and Northeasterly along the Northeast and Southeast line of said F.M. 741 the following nine (9) courses and distances:
North 45 degrees 17 minutes 35 seconds West, a distance of 3.79 feet to a point for corner;
North 44 degrees 55 minutes 38 seconds West, a distance of 752.58 feet to a point for corner at the beginning of a curve to the left having a central angle of 12 degrees 11 minutes 39 seconds, a radius of 5,745.58 feet and a chord bearing and distance of North 51 degrees 01 minutes 28 seconds West, 1,220.51 feet;
Northwesterly, along said curve to the left, an arc distance of 1,222.82 feet to a point for corner;
North 57 degrees 07 minutes 17 seconds West, a distance of 329.74 feet to a point for corner at the beginning of a curve to the right having a central angle of 11 degrees 54 minutes 00 seconds, a radius of 11,382.09 feet and a chord bearing and distance of North 51 degrees 10 minutes 17 seconds West, 2,359.75 feet;
Northwesterly, along said curve to the right, an arc distance of 2,363.99 feet to a point for corner;
North 45 degrees 13 minutes 17 seconds West, a distance of 1,653.79 feet to a point for corner at the beginning of a curve to the right having a central angle of 90 degrees 30 minutes 21 seconds, a radius of 909.93 feet and a chord bearing and distance of North 00 degrees 01 minutes 54 seconds East, 1,292.50 feet;
Northerly, along said curve to the right, an arc distance of 1,437.35 feet to a point for corner;
North 45 degrees 17 minutes 04 seconds East, a distance of 197.76 feet to a point for corner;
North 46 degrees 08 minutes 16 seconds East, a distance of 857.28 feet to a point for corner;
THENCE South 89 degrees 50 minutes 39 seconds East, leaving said Southeast line of F.M. 741, a distance of 242.06 feet to a point for corner;
THENCE South 84 degrees 41 minutes 48 seconds East, a distance of 595.07 feet to a point for corner at the beginning of a curve to the left having a central angle of 15 degrees 54 minutes 22 seconds, a radius of 950.00 feet and a chord bearing and distance of South 74 degrees 25 minutes 59 seconds East, 262.89 feet;
THENCE Southeasterly, along said curve to the left, an arc distance of 263.73 feet to a point for corner;
2476 79th Legislature — Regular Session 71st Day
THENCE South 82 degrees 23 minutes 10 seconds East, a distance of 172.65 feet to a point for corner at the beginning of a curve to the right having a central angle of 10 degrees 28 minutes 31 seconds, a radius of 300.00 feet and a chord bearing and distance of South 77 degrees 08 minutes 55 seconds East, 54.77 feet;
THENCE Easterly, along said curve to the right, an arc distance of 54.85 feet to a point for corner at the beginning of a reverse curve to the left having a central angle of 10 degrees 28 minutes 31 seconds, a radius of 300.00 feet and a chord bearing and distance of South 77 degrees 08 minutes 55 seconds East, 54.77 feet;
THENCE Easterly, along said curve to the left, an arc distance of 54.85 feet to a point for corner;
THENCE South 82 degrees 23 minutes 10 seconds East, a distance of 23.30 feet to a point for corner at the beginning of a curve to the right having a central angle of 36 degrees 41 minutes 46 seconds, a radius of 790.00 feet and a chord bearing and distance of South 64 degrees 02 minutes 17 seconds East, 497.37 feet;
THENCE Southeasterly, along said curve to the right, an arc distance of 505.97 feet to a point for corner;
THENCE South 45 degrees 41 minutes 24 seconds East, a distance of 2,039.00 feet to a point for corner;
THENCE North 44 degrees 47 minutes 12 seconds East, a distance of 15.00 feet to a point for corner;
THENCE South 46 degrees 16 minutes 15 seconds East, a distance of 3520.12 feet to a point for corner;
THENCE South 43 degrees 51 minutes 39 seconds West, a distance of 2,650.46 feet to the POINT OF BEGINNING and containing 453.675 acres of land, more or less.
(5)iiKingsborough Municipal Utility District No. 5:
BEING a tract of land located in the JOHN MOORE SURVEY, ABSTRACT NO. 309, Kaufman County, Texas and being a part of a tract of land as described as Tract 7 in Deed to 2219 KAUFMAN PARTNERS, L.P., a Texas Limited Partnership, recorded in Volume 2127 Page 184, Deed Records, Kaufman County, Texas and being more particularly described as follows:
BEGINNING at a point in the Southeast line of F.M. 741, a 90' right-of-way, at the most Westerly corner of said Tract 7;
THENCE Northeasterly, along the Southeast line of said F.M. 741, the following three courses and distances:
North 43 degrees 58 minutes 26 seconds East (Basis of Bearing derived from Texas State Plane Coordinates, NAD83, North Central Zone), a distance of 2525.10 feet to a point for corner;
North 44 degrees 26 minutes 34 seconds East, a distance of 792.12 feet to a point for corner;
North 44 degrees 20 minutes 40 seconds East, a distance of 928.93 feet to a point for corner;
THENCE South 82 degrees 12 minutes 17 seconds East, a distance of 476.05 feet to a point at the beginning of a curve to the right, having a central angle of 63 degrees 55 minutes 03 seconds, a radius of 500.00 feet, and a chord bearing and distance of South 50 degrees 14 minutes 46 seconds East, 529.31 feet;
Tuesday, May 17, 2005 SENATE JOURNAL 2477
THENCE Southeasterly, along said curve to the right, an arc distance of 557.79 feet to a point for corner;
THENCE South 18 degrees 17 minutes 14 seconds East, a distance of 2799.64 feet to a point for corner;
THENCE South 44 degrees 18 minutes 10 seconds West, a distance of 3275.56 feet to a point for corner;
THENCE North 45 degrees 48 seconds 51 minutes West, a distance of 3383.75 feet to the POINT OF BEGINNING and containing 317.835 acres of land, more or less.
[BEING all that certain lot, tract or parcel of land located in the J.iG. Moore
Survey, Abstract No. 309 and the Martha Musick Survey, Abstract No. 312, Kaufman
County, Texas, and being more particularly described by metes and bounds as
follows:
[COMMENCING at the intersection of the of the Northeasterly right-of-way line
of Farm-Market 2757 (a 100 foot wide right-of-way), and the Northwesterly line of
said J.iG. Moore Survey and the Southeasterly line of said Martha Musick Survey;
[THENCE North 44 deg. 34 min. 48 sec. East, along the common line between
said J.iG. Moore Survey and the Martha Musick Survey, a distance of 1644.55 feet, to
the POINT OF BEGINNING of the herein described tract of land;
[THENCE North 44 deg. 34 min. 48 sec. East, continuing along the common
line between said J.iG. Moore Survey and the Martha Musick Survey, a distance of
2015.87 feet;
[THENCE North 44 deg. 20 min. 17 sec. West, departing said common line, a
distance of 763.42 feet;
[THENCE North 44 deg. 46 min. 22 sec. East, a distance of 110.79 feet;
[THENCE North 45 deg. 13 min. 38 sec. West, a distance of 1367.42 feet;
[THENCE North 44 deg. 46 min. 22 sec. East, a distance of 247.49 feet;
[THENCE South 68 deg. 13 min. 38 sec. East, a distance of 627.70 feet;
[THENCE North 44 deg. 26 min. 44 sec. East, a distance of 853.26 feet;
[THENCE North 45 deg. 59 min. 01 sec. West, a distance of 1118.32 feet;
[THENCE North 25 deg. 16 min. 32 sec. East, a distance of 918.27 feet;
[THENCE North 27 deg. 53 min. 12 sec. East, a distance of 712.32 feet;
[THENCE North 44 deg. 02 min. 09 sec. East, a distance of 693.71 feet, to the
Southwesterly right-of-way line of High Country Lane (a 60 foot wide right-of-way);
[THENCE South 45 deg. 14 min. 23 sec. East, along the Southwesterly
right-of-way line of said High Country Lane, a distance of 263.11 feet, to the
intersection of the Southwesterly right-of-way line of said High Country Lane and the
Southwesterly right-of-way line of Farm-Market 741 (a variable width right-of-way),
and being the beginning of a non-tangent curve to the left having a radius of 999.93
feet;
[THENCE along the Southwesterly right-of-way line of said Farm-Market 741 as
follows;
[Along said non-tangent curve to the left and in a Southeasterly direction, through a
central angle of 09 deg. 56 min. 12 sec., an arc length of 173.42 feet, said non-tangent
curve also having a long chord which bears South 40 deg. 16 min. 17 sec. East,
173.20 feet;
2478 79th Legislature — Regular Session 71st Day
[South 45 deg. 14 min. 23 sec. East, a distance of 1653.79 feet, to the beginning of a
non-tangent curve to the left having a radius of 11,472.09 feet;
[Along said non-tangent curve to the left and in a Southeasterly direction, through a
central angle of 03 deg. 05 min. 42 sec., an arc length of 619.69 feet, said non-tangent
curve to the left having a long chord which bears South 46 deg. 47 min. 14 sec. East,
619.62 feet;
[South 45 deg. 21 min. 23 sec. East, a distance of 182.35 feet, to the beginning of a
non-tangent curve to the left having a radius of 2993.57 feet;
[Along said non-tangent curve to the left and in a Southeasterly direction, through a
central angle of 04 deg. 13 min. 00 sec., an arc length of 220.31 feet, said non-tangent
curve to the left also having a long chord which bears South 47 deg. 27 min. 53 sec.
East, 220.26 feet;
[South 49 deg. 34 min. 23 sec. East, a distance of 222.84 feet, to the beginning of a
curve to the left having a radius of 1858.59 feet;
[Along said curve to the left and in a Southeasterly direction, through a central angle
of 07 deg. 34 min. 00 sec., an arc length of 245.45 feet, said curve to the left also
having a long chord which bears South 53 deg. 21 min. 23 sec. East, 245.27 feet;
[South 57 deg. 08 min. 23 sec. East, a distance of 300.24 feet, to the beginning of a
curve to the left having a radius of 11,472.09 feet;
[Along said curve to the left and in a Southwesterly direction, through a central angle
of 02 deg. 58 min. 15 sec., an arc length of 594.81 feet, said curve to the left also
having a long chord which bears South 55 deg. 39 min. 16 sec. East, 594.75 feet;
[South 57 deg. 06 min. 23 sec. East, a distance of 327.99 feet, to the beginning of a
curve to the right having a radius of 5684.58 feet;
[Along said curve to the right and in a Southeasterly direction, through a central angle
of 12 deg. 08 min. 00 sec., an arc length of 1203.80 feet, said curve also having a long
chord which bears South 51 deg. 02 min. 23 sec. East, 1201.56 feet;
[South 44 deg. 58 min. 23 sec. East, a distance of 755.25 feet;
[South 45 deg. 13 min. 23 sec. East, a distance of 238.92 feet, to the North corner of
the Dallas East Estates which is located to the Southwest of said Farm-Market 741;
[THENCE South 44 deg. 19 min. 24 sec. West, departing the Southwesterly
right-of-way line of said Farm-Market 741 and along the Northwesterly boundary line
of said Dallas East Addition, a distance of 1401.27 feet, to the most Westerly corner
of said Dallas East Addition;
[THENCE South 44 deg. 45 min. 48 sec. East, along the most Southwesterly
boundary line of said Dallas East Addition, a distance of 1444.80 feet, to the
Northwesterly right-of-way line of said Farm-Market 741;
[THENCE along the Northwesterly right-of-way line of said Farm-Market 741 as
follows;
[South 44 deg. 20 min. 25 sec. West, a distance of 545.05 feet;
[North 45 deg. 39 min. 35 sec. West, a distance of 10.00 feet;
[South 44 deg. 20 min. 25 sec. West, a distance of 700.00 feet;
[South 45 deg. 39 min. 35 sec. East, a distance of 10.00 feet;
[South 44 deg. 20 min. 25 sec. West, a distance of 933.41 feet;
[THENCE North 49 deg. 43 min. 48 sec. East, departing the Northwesterly
right-of-way line of said Farm-Market 741, a distance of 794.74 feet;
Tuesday, May 17, 2005 SENATE JOURNAL 2479
[THENCE North 78 deg. 41 min. 33 sec. West, a distance of 280.00 feet;
[THENCE North 46 deg. 19 min. 02 sec. West, a distance of 1073.59 feet;
[THENCE North 66 deg. 21 min. 14 sec. East, a distance of 1045.54 feet;
[THENCE South 81 deg. 36 min. 53 sec. West, a distance of 327.60 feet;
[THENCE South 72 deg. 56 min. 15 sec. West, a distance of 778.38 feet;
[THENCE South 87 deg. 16 min. 19 sec. West, a distance of 610.31 feet;
[THENCE North 77 deg. 32 min. 02 sec. West, a distance of 731.98 feet;
[THENCE North 58 deg. 36 min. 37 sec. West, a distance of 578.95 feet, to the
POINT OF BEGINNING and containing 692.696 acres (30,173,840 square feet) of
land.
[(2)iiKingsborough Municipal Utility District No. 2:
[BEING all that certain lot, tract or parcel of land located in the J. G. Moore
Survey, Abstract No. 309, Kaufman County, Texas, and being a portion of that certain
tract of land described as Tract K31 in the deed to West Foundation, according to the
deed filed for record in Volume 720, Page 860 of the Deed Records of Kaufman
County, Texas, and being more particularly described by metes and bounds as
follows:
[BEGINNING at the intersection of the Southwesterly boundary line of said
Tract K31 and the Southeasterly right-of-way line of Farm-Market 741 (a 90 foot
wide right-of-way), said iron rod being in the center of County Road No. 269;
[THENCE along the Southwesterly right-of-way line of said Farm-Market 741 as
follows:
[North 43 deg. 59 min. 38 sec. East, along the Southeasterly right-of-way line of
said Farm-Market 741, a distance of 2525.09 feet;
[North 44 deg. 20 min. 25 sec. East, a distance of 4582.54 feet, to the beginning
of a curve to the left having a radius of 761.20 feet;
[Along said curve to the left, through a central angle of 11 deg. 23 min. 36 sec.,
an arc length of 151.37 feet and having a long chord which bears North 38 deg. 38
min. 37 sec. East, 151.12 feet;
[North 44 deg. 20 min. 25 sec. East, a distance of 463.83 feet, to the beginning of
a curve to the left having a radius of 127.30 feet;
[Along said curve to the left, through a central angle of 40 deg. 09 min. 07 sec.,
an arc length of 89.21 feet and having a long chord which bears North 24 deg. 15 min.
15 min. East, 87.40 feet;
[THENCE North 44 deg. 20 min. 24 sec. East, along the Northwesterly line of
said Tract K31, a distance of 14.48 feet, to a point in County Road No. 260 (an
undefined width right of way);
[THENCE South 46 deg. 07 min. 54 sec. East, along said County Road No. 260,
a distance of 3434.03 feet;
[THENCE South 44 deg. 14 min. 23 sec. West, departing said County Road No.
260, a distance of 5193.79 feet, to the beginning of a non-tangent curve to the left
having a radius of 2640.00 feet;
[THENCE along said non-tangent curve to the left, through a central angle of 90
deg. 07 min. 01 sec., an arc length of 4152.29 feet, and having a long chord which
bears South 89 deg. 10 min. 52 sec. West, 3737.33 feet, to a point in County Road No.
269 (an undefined width right-of-way);
2480 79th Legislature — Regular Session 71st Day
[THENCE North 45 deg. 52 min. 38 sec. West, along said County Road No. 269,
a distance of 747.41 feet to the POINT OF BEGINNING and containing 484.081
acres (21,086,547 square feet) of land.
[(3)iiKingsborough Municipal Utility District No. 3:
[BEING all that certain lot, tract or parcel of land located in the J. G. Moore
Survey, Abstract No. 309, Kaufman County, Texas, and being more particularly
described by metes and bounds as follows:
[BEGINNING at the intersection of the of the Northeasterly right-of-way line of
Farm-Market 2757 (a 100 foot wide right-of-way), and the Northwesterly line of said
J. G. Moore Survey and the Southeasterly line of said Martha Musick Survey;
[THENCE North 44 deg. 34 min. 48 sec. East, along the common line between
said J. G. Moore Survey and the Martha Musick Survey, a distance of 1644.55 feet;
[THENCE South 58 deg. 36 min. 37 sec. East, departing said common line, a
distance of 578.95 feet;
[THENCE South 77 deg. 32 min. 02 sec. East, a distance of 731.98 feet;
[THENCE North 87 deg. 16 min. 19 sec. East, a distance of 610.31 feet;
[THENCE North 72 deg. 56 min. 15 sec. East, a distance of 778.38 feet;
[THENCE North 81 deg. 36 min. 53 sec. East, a distance of 327.60 feet;
[THENCE South 66 deg. 21 min. 14 sec. East, a distance of 1045.54 feet;
[THENCE South 46 deg. 19 min. 02 sec. East, a distance of 1073.59 feet;
[THENCE South 78 deg. 41 min. 33 sec. East, a distance of 280.00 feet;
[THENCE South 49 deg. 43 min. 48 sec. East, a distance of 794.74 feet, to a
point on the Northwesterly right-of-way line of Farm- Market 741 (an 80 foot wide
right-of-way);
[THENCE along the Northwesterly right-of-way line of said Farm- Market 741
as follows;
[South 44 deg. 20 min. 25 sec. West, a distance of 1657.58 feet;
[South 43 deg. 59 min. 38 sec. West, a distance of 2422.82 feet, to the
intersection of the Northwesterly right-of-way line of said Farm-Market 741 and the
Northeasterly right-of-way line of the aforementioned Farm-Market 2757;
[THENCE along the Northeasterly right-of-way line of said Farm-Market 2757
as follows;
[South 89 deg. 23 min. 24 sec. West, a distance of 138.28 feet;
[North 44 deg. 17 min. 39 sec. West, a distance of 1248.09 feet;
[North 45 deg. 23 min. 39 sec. West, a distance of 624.62 feet;
[North 45 deg. 36 min. 39 sec. West, a distance of 3302.91 feet, to the POINT
OF BEGINNING and containing 392.241 acres (17,086,006 square feet) of land.
[(4)iiKingsborough Municipal Utility District No. 4:
[BEING all that certain lot, tract or parcel of land located in the Martha Musick
Survey, Abstract No. 312 and the J. G. Moore Survey, Abstract No. 309, Kaufman
County, Texas, and being the remainder of those certain tracts of land described as
Tracts K14 through K20, in the deed the West Foundation, as filed for record in
Volume 720, Page 860 of the Deed Records of Kaufman County, Texas, and being
more particularly described by metes and bounds as follows:
Tuesday, May 17, 2005 SENATE JOURNAL 2481
[BEGINNING at the intersection of the Southerly right-of-way line of Interstate
20 (a variable width right-of-way) and the Southeasterly right-of-way line of
Farm-Market 741 (a variable width right-of-way at this point);
[THENCE along the Southerly right-of-way line of said Interstate 20 as follows;
[North 83 deg. 22 min. 27 sec. East, a distance of 751.86 feet; North 88 deg. 29 min.
25 sec. East, a distance of 474.54 feet; South 84 deg. 18 min. 42 sec. East, a distance
of 952.45 feet; South 78 deg. 59 min. 16 sec. East, a distance of 4.49 feet to the
intersection of the Southerly right-of-way line of Interstate 20 and the Northeasterly
boundary line of the aforementioned Tract K17, said point also being the intersection
of the said Southerly right-of-way line and the Southwesterly boundary line of that
certain called 113.75 acre tract of land conveyed to Austin W. Shipley, according to
the deed filed for record in Volume 270, Page 221, Deed Records, Kaufman County,
Texas;
[THENCE South 45 deg. 06 min. 28 sec. East, along the common boundary line
between said Tract K17 and said called 113.75 acre tract, at a distance of
approximately 1240 feet passing the most Southerly corner of said called 113.75 acre
tract and the East corner of that certain tract of land conveyed to Gordon T. West,
according to the deed filed for record in Volume 1636, Page 43, Deed Records,
Kaufman County, Texas, and continuing along the common boundary line between
said Tract K17 and said Gordon T. West tract, in all a distance of 2131.39 feet to the
Northwest boundary line of that certain called 300 acre tract of land conveyed to
Gordon T. West, according to the deed filed for record in Volume 1636, Page 43,
Deed Records, Kaufman County, Texas;
[THENCE South 44 deg. 34 min. 38 sec. West, along the common boundary line
of said Tract K17 and said called 300 acre tract, and generally along a barbed wire
fence, a distance of 1891.96 feet, to the South corner of said Tract K17 and the West
corner of said called 300 acre tract, said iron rod also being the North corner of the
aforementioned Tract K19;
[THENCE South 46 deg. 09 min. 59 sec. East, along the common boundary line
between said called 300 acre tract and said Tract K19, a distance of 3513.32 feet, to
the Northwesterly right-of-way line of Griffin Lane (a 50 foot wide right-of-way);
[THENCE South 43 deg. 50 min. 01 sec. West, along the Northwesterly
right-of-way line of said Griffin Lane, a distance of 2649.80 feet, to the Northeasterly
right-of-way line of the aforementioned Farm-Market 741;
[THENCE along the Northeasterly right-of-way line of said Farm-Market 741 as
follows;
[North 45 deg. 13 min. 23 sec. West, a distance of 4.98 feet;
[North 44 deg. 58 min. 23 sec. West, at a distance of 632.24 feet passing a wood
monument found, and continuing in all a distance of 755.05 feet, said point being the
beginning of a curve to the left having a radius of 5774.58 feet;
[Along said curve to the left, through a central angle of 12 deg. 08 min. 00 sec., an arc
length of 1222.86 feet, and having a long chord of North 51 deg. 02 min. 23 sec.
West, 1220.58 feet;
[North 57 deg. 06 min. 23 sec. West, generally along a barbed wire fence, a distance
of 328.05 feet, said point being the beginning of a curve to the right having a radius of
11,382.09 feet;
2482 79th Legislature — Regular Session 71st Day
[Along said curve to the right and along said fence, through a central angle of 11 deg.
54 min. 00 sec., an arc length of 2363.99 feet, and having a long chord which bears
North 51 deg. 11 min. 23 sec. West, 2359.75 feet;
[North 45 deg. 14 min. 23 sec. West, generally along said fence, a distance of 1653.79
feet, said point being the beginning of a curve to the right having a radius of 909.93
feet;
[THENCE along said curve to the right and along the Easterly right-of-way line
of said Farm-Market 741 and generally along said fence, through a central angle of 90
deg. 33 min. 04 sec., an arc length of 1438.07 feet, and having a long chord which
bears North 00 deg. 02 min. 09 sec. East, 1293.01 feet;
[THENCE along the Southeasterly right-of-way line of said Farm-Market 741 as
follows;
[North 45 deg. 18 min. 41 sec. East, a distance of 199.54 feet;
[North 46 deg. 06 min. 41 sec. East, a distance of 1039.75 feet;
[North 46 deg. 21 min. 41 sec. East, a distance of 759.38 feet, said point being the
beginning of a curve to the left having a radius of 999.93 feet;
[Along said curve to the left, through a central angle of 14 deg. 28 min. 00 sec., an arc
length of 252.47 feet, and having a long chord which bears North 39 deg. 07 min. 41
sec. East, 251.80 feet;
[North 31 deg. 53 min. 41 sec. East, a distance of 210.50 feet, said point being the
beginning of a curve to the right having a radius of 909.38 feet;
[Along said curve to the right, through a central angle of 01 deg. 00 min. 31 sec., an
arc length of 16.01 feet, and having a long chord which bears North 32 deg. 23 min.
57 sec. East, 16.01 feet to the POINT OF BEGINNING and containing 606.441 acres
(26,416,564 square feet) of land.
[(5)iiKingsborough Municipal Utility District No. 5:
[BEING all that certain lot, tract or parcel of land located in the J. G. Moore
Survey, Abstract No. 309, Kaufman County, Texas, and being a portion of that certain
tract of land described as Tract K31 in the deed to West Foundation, according to the
deed filed for record in Volume 720, Page 860 of the Deed Records of Kaufman
County, Texas, and being more particularly described by metes and bounds as
follows:
[BEGINNING at a 5/8 inch iron rod found for the South corner of said Tract
K31, said iron rod being in County Road No. 269 (an undefined width public
roadway);
[THENCE North 45 deg. 52 min. 38 sec. West, along the Southwest boundary
line of said Track K31, and generally along said County Road No. 269, a distance of
2640.00 feet, said point being the beginning of a non-tangent curve to the right having
a radius of 2640.00 feet;
[THENCE departing the Southwest boundary line of said Tract K31, through a
central angle of 90 deg. 07 min. 01 sec., an arc length of 4152.29 feet, said
non-tangent curve also having a long chord which bears North 89 deg. 10 min. 52 sec.
East, a distance of 3737.33 feet, to the Southeast boundary line of said Tract K31;
[THENCE South 44 deg. 14 min. 23 sec. West, along the Southeast boundary
line of said Tract K31, a distance of 2640.00 feet, to the POINT OF BEGINNING and
containing 125.839 acres (5,481,550 square feet) of land.]
Tuesday, May 17, 2005 SENATE JOURNAL 2483
SECTIONi___.02.iiSection 10(b), Chapter 1299, Acts of the 78th Legislature, Regular Session, 2003, is amended to read as follows:
(b)iiOutside the boundaries of a district, a district may exercise the power of eminent domain only for the purpose of constructing, acquiring, operating, repairing, or maintaining water supply lines or sanitary sewer lines and drainage systems.
SECTIONi___.03.iiSection 12(b), Chapter 1299, Acts of the 78th Legislature, Regular Session, 2003, is amended to read as follows:
(b)iiThe [Subject to Subsection (e) of this section, the] commission shall appoint
as temporary directors the five persons named in the first petition received by the
commission for each district.
SECTIONi__.04.iiSection 15, Chapter 1299, Acts of the 78th Legislature, Regular Session, 2003, is amended to read as follows:
Sec.i15.iiEFFECTIVE DATE[; EXPIRATION DATE]. [(a)] This Act takes
effect on the date on or after September 1, 2003, on which a settlement agreement
between the City of Crandall and the developer of the districts is legally executed
regarding a pending petition before the Texas Commission on Environmental Quality
for the right to provide retail water service to certain areas within the districts. If the
settlement agreement is legally executed before September 1, 2003, this Act takes
effect September 1, 2003.
[(b)iiIf the creation of a district is not confirmed at a confirmation election held
under Section 13 of this Act before September 1, 2005, the provisions of this Act
relating to that district expire on that date.]
SECTIONi__.05.iiSection 12(e), Chapter 1299, Acts of the 78th Legislature, Regular Session, 2003, is repealed.
ARTICLE __. ROSE HILL SPECIAL
UTILITY DISTRICT
SECTIONi__.01.iiSubtitle C, Title 6, Special District Local Laws Code, is amended by adding Chapter 7204 to read as follows:
CHAPTER 7204. ROSE HILL SPECIAL UTILITY DISTRICT
SUBCHAPTER A. GENERAL PROVISIONS
Sec.i7204.001.iiDEFINITION. In this chapter, "district" means the Rose Hill Special Utility District.
Sec.i7204.002.iiNATURE OF DISTRICT. The district is a special utility district in Kaufman County created under and essential to accomplish the purposes of Section 59, Article XVI, Texas Constitution.
Sec.i7204.003.iiCONFIRMATION ELECTION REQUIRED. If the creation of the district is not confirmed at a confirmation and initial directors' election held before September 1, 2007:
(1)iithe district is dissolved on September 1, 2007, except that:
(A)iiany debts of the district incurred shall be paid;
(B)iiany assets of the district that remain after the payment of debts shall be transferred to Kaufman County; and
(C)iithe organization of the district shall be maintained until all debts are paid and remaining assets are transferred; and
(2)iithis chapter expires September 1, 2010.
2484 79th Legislature — Regular Session 71st Day
Sec.i7204.004.iiAPPLICABILITY OF OTHER SPECIAL UTILITY DISTRICT LAW. Except as otherwise provided by this chapter, Chapters 49 and 65, Water Code, apply to the district.
Sec.i7204.005.iiINITIAL DISTRICT TERRITORY. (a) The district is initially composed of the territory described by Section __.02 of the Act creating this chapter.
(b)iiThe boundaries and field notes contained in Section __.02 of the Act creating this chapter form a closure. A mistake made in the field notes or in copying the field notes in the legislative process does not affect:
(1)iithe organization, existence, or validity of the district;
(2)iithe right of the district to issue any type of bond, including a refunding bond, for a purpose for which the district is created or to pay the principal of and interest on a bond; or
(3)iithe legality or operation of the district or the board of directors of the district.
[Sections 7204.006-7204.020 reserved for expansion]
SUBCHAPTER A-1. TEMPORARY PROVISIONS
Sec.i7204.021.iiTEMPORARY DIRECTORS. (a) The temporary board of directors of the district is composed of:
(1)iiStephen Hilborn;
(2)iiBill Hobbs;
(3)iiHomer Norville;
(4)iiRandy Reznicek; and
(5)iiHarold Ross.
(b)iiEach temporary director shall qualify for office as provided by Section 49.055, Water Code.
(c)iiIf a temporary director fails to qualify for office, the temporary directors who have qualified shall appoint a person to fill the vacancy. If at any time there are fewer than three qualified temporary directors, the Texas Commission on Environmental Quality shall appoint the necessary number of directors to fill all vacancies on the board.
(d)iiTemporary directors serve until initial directors are elected under Section 7204.022.
Sec.i7204.022.iiCONFIRMATION AND INITIAL DIRECTORS' ELECTION. (a) The temporary directors shall hold an election to confirm the creation of the district and to elect five initial directors in accordance with Chapters 49 and 65, Water Code, on or before September 1, 2007.
(b)iiThe temporary board of directors shall determine the method for determining the initial term of each person on the initial board of directors. The terms must be clearly stated on the ballot for the confirmation and directors' election.
(c)iiSection 41.001(a), Election Code, does not apply to a confirmation election held as provided by this section.
(d)iiInitial directors serve until the first regularly scheduled election of directors under Subchapter C, Chapter 65, Water Code.
Tuesday, May 17, 2005 SENATE JOURNAL 2485
Sec.i7204.023.iiTRANSFER OF ASSETS; DISSOLUTION. (a) If the district's creation is confirmed under Section 7204.022, the Rose Hill Water Supply Corporation shall transfer the assets, debts, and contractual rights and obligations of the corporation to the district.
(b)iiNot later than the 30th day after the date of the transfer under Subsection (a), the board of directors of the Rose Hill Water Supply Corporation shall commence dissolution proceedings of the corporation.
(c)iiOn dissolution of the Rose Hill Water Supply Corporation, Certificate of Convenience and Necessity No. 10849 is considered to be held by the district.
(d)iiThe board of directors of the Rose Hill Water Supply Corporation shall notify the Texas Commission on Environmental Quality of the dissolution of the corporation and of the transfer of Certificate of Convenience and Necessity No. 10849 to the district.
(e)iiOn receipt of notice under Subsection (d), the Texas Commission on Environmental Quality shall note in its records that Certificate of Convenience and Necessity No. 10849 is held by the district and shall reissue the certificate in the name of the district without further application or notice.
Sec.i7204.024.iiEXPIRATION OF SUBCHAPTER. This subchapter expires September 1, 2010.
[Sections 7204.025-7204.050 reserved for expansion]
SUBCHAPTER B. BOARD OF DIRECTORS
Sec.i7204.051.iiDIRECTORS. The district is governed by a board of not fewer than five and not more than 11 directors.
[Sections 7204.052-7204.100 reserved for expansion]
SUBCHAPTER C. POWERS AND DUTIES
Sec.i7204.101.iiGENERAL POWERS. Except as otherwise provided by this subchapter, the district has all of the rights, powers, privileges, authority, functions, and duties provided by the general law of this state, including Chapters 49 and 65, Water Code, applicable to special utility districts created under Section 59, Article XVI, Texas Constitution.
Sec.i7204.102.iiWATER SERVICE IMPACT FEE. (a) The district may charge a water service impact fee that is equal to the sum of the equity buy-in fee, aids to construction fee, and connection fee charged by the Rose Hill Water Supply Corporation on January 15, 2005, under that corporation's tariff.
(b)iiChapter 395, Local Government Code, does not apply to the initial water service impact fee set under this section.
(c)iiThe district may increase the water service impact fee only as provided by Chapter 395, Local Government Code, or as approved by the Texas Commission on Environmental Quality.
Sec.i7204.103.iiEMINENT DOMAIN. (a) Except as provided by Subsection (b), the district has all the authority under Chapters 49 and 65, Water Code, of a special utility district to acquire by condemnation any land, easement, or other property located inside or outside the boundaries of the district for any district project or purpose.
2486 79th Legislature — Regular Session 71st Day
(b)iiThe district may not exercise the power of eminent domain to condemn, for sanitary sewer purposes, land, easements, or other property located outside the boundaries of the district.
SECTIONi__.02.iiThe Rose Hill Special Utility District initially includes all the territory contained in the following area:
BEGINNING at the intersection of the north right-of-way for US Highway 175 and the center of Big Brushy Creek and further located approximately two and one half miles west of the City of Kaufman on the southwest perimeter of the certificated service area of Rose Hill Water Supply Corporation set forth in Certificate of Convenience and Necessity (CCN) No. 10849;
THENCE northerly along the center of Big Brushy Creek as it meanders approximately 39,499 feet to a point for a corner;
THENCE north 40 degrees 44 minutes 21 seconds east along a line approximately 3,116 feet to a point for a corner;
THENCE north 46 degrees 15 minutes 20 seconds west along a line approximately 1,683 feet to its intersection with the center of Big Brushy Creek for a corner;
THENCE northerly along the center of Big Brushy Creek as it meanders approximately 16,004 feet to its intersection with the center of the Missouri Pacific Railroad located south of US Highway 80 for a corner;
THENCE easterly along the center of the Missouri Pacific Railroad approximately 4,730 feet to a point for a corner;
THENCE south 8 degrees 51 minutes 34 seconds west along a line and parallel to County Road 238 approximately 3,000 feet to a point for a corner;
THENCE south 81 degrees 8 minutes 26 seconds east along a line approximately 600 feet to a point for a corner;
THENCE north 8 degrees 51 minutes 34 seconds east along a line and parallel to County Road 238 to its intersection with the center of the Missouri Pacific Railroad approximately 3,085 feet to a point for a corner;
THENCE easterly along the center of the Missouri Pacific Railroad approximately 459 feet to a point for a corner;
THENCE south 41 degrees 26 minutes 13 seconds east along the Terrell City Limits boundary line approximately 2,520 feet to a point for a corner;
THENCE south 57 degrees 30 minutes 51 seconds east along the Terrell City Limits boundary line approximately 3,452 feet to a point for a corner;
THENCE south 64 degrees 40 minutes 9 seconds east along the Terrell City Limits boundary line approximately 2,372 feet to a point for a corner;
THENCE south 45 degrees 55 minutes 21 seconds west along the Terrell City Limits boundary line approximately 1,162 feet to a point for a corner;
THENCE south 43 degrees 3 minutes 11 seconds east along the Terrell City Limits boundary line approximately 3,448 feet to a point for a corner;
THENCE south 35 degrees 12 minutes 0 seconds east along the Terrell City Limits boundary line approximately 478 feet to a point for a corner;
THENCE south 41 degrees 22 minutes 5 seconds east along the Terrell City Limits boundary line approximately 527 feet to a point for a corner;
Tuesday, May 17, 2005 SENATE JOURNAL 2487
THENCE south 45 degrees 56 minutes 34 seconds west along the Terrell City Limits boundary line approximately 35 feet to its intersection with the center of County Road 305 for a corner;
THENCE south easterly along the center of County Road 305 and the Terrell City Limits boundary line approximately 1,823 feet to a point for a corner;
THENCE north 45 degrees 51 minutes 45 seconds east along the Terrell City Limits boundary line approximately 1,140 feet to a point for a corner;
THENCE north 84 degrees 50 minutes 7 seconds east along the Terrell City Limits boundary line approximately 2,388 feet to a point for a corner;
THENCE north 43 degrees 18 minutes 53 seconds east along the Terrell City Limits boundary line approximately 859 feet to a point for a corner;
THENCE south 63 degrees 4 minutes 28 seconds east along the Terrell City Limits boundary line approximately 513 feet to a point for a corner;
THENCE south 47 degrees 26 minutes 45 seconds east along the Terrell City Limits boundary line approximately 303 feet to a point for a corner;
THENCE south 34 degrees 21 minutes 59 seconds west along the Terrell City Limits boundary line approximately 321 feet to a point for a corner;
THENCE south 47 degrees 26 minutes 58 seconds east along the Terrell City Limits boundary line approximately 1,019 feet to a point for a corner;
THENCE south 50 degrees 36 minutes 4 seconds west along the Terrell City Limits boundary line approximately 100 feet to a point for a corner;
THENCE south 48 degrees 34 minutes 58 seconds east along the Terrell City Limits boundary line approximately 1,131 feet to its intersection with the center of County Road 304 to a point for a corner;
THENCE northeasterly along the center of County Road 304 and the Terrell City Limits boundary line approximately 1085 feet to a point for a corner;
THENCE south 62 degrees 58 minutes 14 seconds east along the Terrell City Limits boundary line approximately 2,441 feet to a point for a corner;
THENCE south 64 degrees 2 minutes 15 seconds east along the Terrell City Limits boundary line approximately 4,551 feet to a point for a corner;
THENCE south 73 degrees 10 minutes 39 seconds east along the Terrell City Limits boundary line approximately 198 feet to a point for a corner;
THENCE south 44 degrees 7 minutes 56 seconds west along the Terrell City Limits boundary line approximately 1,088 feet to a point for a corner;
THENCE south 46 degrees 22 minutes 18 seconds east along the Terrell City Limits boundary line approximately 2,509 feet to its intersection with the northwest right of way for County Road 301 for a corner;
THENCE northeasterly along County Road 301 northwest right of way and the Terrell City Limits boundary line approximately 417 feet to a point for a corner;
THENCE south 1 degree 20 minutes 1 second east along the Terrell City limits boundary Line approximately 2,460 feet to a point for a corner;
THENCE south 45 degrees 38 minutes 12 seconds west along the Terrell City Limits boundary line approximately 911 feet to a point for a corner;
THENCE south 44 degrees 24 minutes 51 seconds east along the Terrell City Limits boundary line approximately 803 feet to a point for a corner;
2488 79th Legislature — Regular Session 71st Day
THENCE north 57 degrees 17 minutes 50 seconds east along the Terrell City Limits boundary line approximately 390 feet to a point for a corner;
THENCE south 18 degrees 36 minutes 16 seconds east along the Terrell City Limits boundary line approximately 1454 feet to a point for a corner;
THENCE north 67 degrees 46 minutes 58 seconds east along the Terrell City Limits boundary line approximately 991 feet to its intersection with the center of Kings Creek for a corner;
THENCE southwesterly along the center of Kings Creek as it meanders approximately 48,462 feet to its intersection with the north boundary of the certificated service area of the City of Kaufman set forth in CCN No. 10877 for a corner;
THENCE west along the north boundary line of the City of Kaufman CCN No. 10877 approximately 5,356 feet to a point for a corner;
THENCE south along the west boundary line of the City of Kaufman CCN No. 10877 approximately 5,708 feet to its intersection with the State Highway 243 north right of way for a corner;
THENCE westerly along the State Highway 243 north right of way approximately 210 feet to its intersection with the US Highway 175 north right of way for a corner;
THENCE westerly along the US Highway 175 north right of way approximately 1433 feet to a point for a corner;
THENCE north 3 degrees 2 minutes 15 seconds east along a line approximately 150 feet to a point for a corner;
THENCE north 33 degrees 6 minutes 40 seconds west along a line approximately 177 feet to a point for a corner;
THENCE north 87 degrees 47 minutes 47 seconds west along a line approximately 178 feet to a point for a corner;
THENCE south 49 degrees 3 minutes 38 seconds west along a line approximately 159 feet to a point for a corner;
THENCE south 4 degrees 24 minutes 29 seconds west along a line approximately 180 feet to its intersection with the US Highway 175 north right of way for a corner;
THENCE westerly along the US Highway 175 north right of way approximately 2,442 feet to a point for a corner;
THENCE north 10 degrees 44 minutes 2 seconds east along a line approximately 500 feet to a point for a corner;
THENCE south 87 degrees 36 minutes 10 seconds west and parallel to the US Highway 175 north right of way approximately 370 feet to a point for a corner;
THENCE north 81 degrees 2 minutes 35 seconds west and parallel to the US Highway 175 north right of way approximately 3,506 feet to a point for a corner;
THENCE north 15 degrees 34 minutes 29 seconds east along a line approximately 3,469 feet to its intersection with County Road 284 south right of way to a point for a corner;
THENCE southerly along the County Road 284 south right of way approximately 597 feet to a point for a corner;
THENCE northerly along the County Road 284 south right of way approximately 1,071 feet to a point for a corner;
Tuesday, May 17, 2005 SENATE JOURNAL 2489
THENCE south 46 degrees 20 minutes 42 seconds east along a line and parallel to County Road 284 approximately 1387 feet to a point for a corner;
THENCE north 44 degrees 12 minutes 44 seconds east along a line and parallel to County Road 284 approximately 1122 feet to a point for a corner;
THENCE north 45 degrees 47 minutes 16 seconds west along a line approximately 300 feet to a point for a corner;
THENCE south 44 degrees 12 minutes 44 seconds west along a line and parallel to County Road 284 approximately 824 feet to a point for a corner;
THENCE north 46 degrees 20 minutes 42 seconds west along a line and parallel to County Road 284 approximately 1,088 feet to a point for a corner;
THENCE north 43 degrees 39 minutes 18 seconds east along a line approximately 609 feet to a point for a corner;
THENCE north 45 degrees 1 minute 17 seconds west along a line approximately 600 feet to a point for a corner;
THENCE south 43 degrees 44 minutes 37 seconds west along a line and parallel to County Road 284 approximately 1248 feet to a point for a corner;
THENCE north 33 degrees 49 minutes 57 seconds west along a line approximately 370 feet to a point for a corner;
THENCE north 15 degrees 49 minutes 23 seconds east along a line and parallel to Farm to Market Road 2578 approximately 2,781 feet to a point for a corner;
THENCE north 28 degrees 9 minutes 34 seconds west along a line approximately 625 feet to a point for a corner;
THENCE south 43 degrees 46 minutes 15 seconds west along a line and parallel to Robin Lane approximately 2,805 feet to a point for a corner;
THENCE south 73 degrees 19 minutes 40 seconds west along a line and parallel to County Road 285 approximately 1,766 feet to a point for a corner;
THENCE south 16 degrees 40 minutes 20 seconds east along a line approximately 600 feet to a point for a corner;
THENCE north 73 degrees 19 minutes 40 seconds east along a line and parallel to County Road 285 approximately 1,494 feet to a point for a corner;
THENCE south 34 degrees 12 minutes 1 seconds east along a line and parallel to County Road 285 approximately 857 feet to a point for a corner;
THENCE south 15 degrees 34 minutes 20 seconds west along a line and parallel to Farm to Market Road 2578 approximately 3,922 feet to a point for a corner;
THENCE north 78 degrees 29 minutes 32 seconds west along a line and parallel to the US Highway 175 north right of way approximately 1,084 feet to a point for a corner;
THENCE south 10 degrees 0 minutes 13 seconds west along a line to its intersection with the US Highway 175 north right of way approximately 516 feet for a corner;
THENCE westerly along the US Highway 175 north right of way approximately 624 feet to its intersection with the center of Big Brushy Creek and back to the place of beginning and containing approximately 27,817 acres.
2490 79th Legislature — Regular Session 71st Day
SECTIONi__.03.ii(a) The legal notice of the intention to introduce this article, setting forth the general substance of this article, has been published as provided by law, and the notice and a copy of this article have been furnished to all persons, agencies, officials, or entities to which they are required to be furnished under Section 59, Article XVI, Texas Constitution, and Chapter 313, Government Code.
(b)iiThe governor has submitted the notice and article to the Texas Commission on Environmental Quality.
(c)iiThe Texas Commission on Environmental Quality has filed its recommendations relating to this article with the governor, lieutenant governor, and speaker of the house of representatives within the required time.
(d)iiThe general law relating to consent by political subdivisions to the creation of a conservation and reclamation district and the inclusion of land in the district has been complied with. All requirements of the constitution and laws of this state and the rules and procedures of the legislature with respect to the notice, introduction, and passage of this article are fulfilled and accomplished.
ARTICLE __. EFFECTIVE DATE
SECTIONi__.01.iiThis Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2005.
The amendment to SB 1894 was read and was adopted by a viva voce vote.
All Members are deemed to have voted "Yea" on the adoption of Floor Amendment No. 1 except as follows:
Absent-excused:iiCarona.
On motion of Senator Deuell and by unanimous consent, the caption was amended to conform to the body of the bill as amended.
SB 1894 as amended was passed to engrossment by a viva voce vote.
All Members are deemed to have voted "Yea" on the passage to engrossment except as follows:
Absent-excused:iiCarona.
SENATE BILL 1894 ON THIRD READING
Senator Deuell moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that SBi1894 be placed on its third reading and final passage.
The motion prevailed by the following vote:iiYeasi30, Naysi0.
Absent-excused:iiCarona.
The bill was read third time and was passed by the following vote:iiYeasi30, Naysi0.ii(Same as previous roll call)
Tuesday, May 17, 2005 SENATE JOURNAL 2491
SENATE JOINT RESOLUTION 20 ON SECOND READING
On motion of Senator West and by unanimous consent, the regular order of business was suspended to take up for consideration SJRi20 at this time on its second reading:
SJR 20, Proposing a constitutional amendment authorizing the governor to grant a pardon to a person who successfully completes a term of deferred adjudication community supervision.
The resolution was read second time and was passed to engrossment by a viva voce vote.
All Members are deemed to have voted "Yea" on the passage to engrossment except as follows:
Absent-excused:iiCarona.
SENATE JOINT RESOLUTION 20 ON THIRD READING
Senator West moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that SJRi20 be placed on its third reading and final passage.
The motion prevailed by the following vote:iiYeasi30, Naysi0.
Absent-excused:iiCarona.
The resolution was read third time and was passed by the following vote:iiYeasi30, Naysi0.ii(Same as previous roll call)
HOUSE BILL 261 ON SECOND READING
On motion of Senator Wentworth and by unanimous consent, the regular order of business was suspended to take up for consideration HB 261 at this time on its second reading:
HB 261, Relating to possession of or access to a grandchild and designation of other relatives as managing conservators.
The bill was read second time.
Senator Wentworth offered the following amendment to the bill:
Floor Amendment No. 1
Amend HB 261 (Senate committee printing) as follows:
(1)iiStrike SECTION 3 of the bill (page 1, lines 23-34) and substitute the following:
SECTIONi3.iiThe heading to Section 153.432, Family Code, is amended to read as follows:
Sec.i153.432.iiSUIT FOR ACCESS BY GRANDPARENT.
(2)iiIn SECTION 4 of the bill, in amended Section 153.433, Family Code (page
1, line 37), strike "POSSESSION OF OR [AND] ACCESS TO GRANDCHILD" and
substitute "[POSSESSION OF AND] ACCESS TO GRANDCHILD".
2492 79th Legislature — Regular Session 71st Day
(3)iiIn SECTION 4 of the bill, in amended Section 153.433, Family Code (page 1, lines 38, 43, 46, 50-51, and 59), strike "possession of or" each place that phrase appears.
(4)iiStrike SECTION 5 of the bill (page 2, lines 10-13) and substitute the following:
SECTIONi5.iiSection 153.434, Family Code, is amended to read as follows:
Sec.i153.434.iiLIMITATION ON RIGHT TO REQUEST ACCESS. A biological
or adoptive grandparent may not request [possession of or] access to a grandchild if:
(1)iieach of the biological parents of the grandchild has:
(A)iidied;
(B)iihad the person's parental rights terminated; or
(C)iiexecuted an affidavit of waiver of interest in child or an affidavit of relinquishment of parental rights under Chapter 161 and the affidavit designates an authorized agency, licensed child-placing agency, or person other than the child's stepparent as the managing conservator of the child; and
(2)iithe grandchild has been adopted, or is the subject of a pending suit for adoption, by a person other than the child's stepparent.
(5)iiIn SECTION 7 of the bill (page 2, line 20), strike "153.432 and 153.433" and substitute "153.432, 153.433, and 153.434".
The amendment to HB 261 was read and was adopted by a viva voce vote.
All Members are deemed to have voted "Yea" on the adoption of Floor Amendment No. 1 except as follows:
Absent-excused:iiCarona.
On motion of Senator Wentworth and by unanimous consent, the caption was amended to conform to the body of the bill as amended.
HB 261 as amended was passed to third reading by a viva voce vote.
All Members are deemed to have voted "Yea" on the passage to third reading except as follows:
Absent-excused:iiCarona.
HOUSE BILL 261 ON THIRD READING
Senator Wentworth moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that HBi261 be placed on its third reading and final passage.
The motion prevailed by the following vote:iiYeasi30, Naysi0.
Absent-excused:iiCarona.
The bill was read third time and was passed by the following vote:iiYeasi30, Naysi0.ii(Same as previous roll call)
Tuesday, May 17, 2005 SENATE JOURNAL 2493
COMMITTEEiiSUBSTITUTE
SENATE BILL 1652 ON SECOND READING
On motion of Senator Staples and by unanimous consent, the regular order of business was suspended to take up for consideration CSSBi1652 at this time on its second reading:
CSSB 1652, Relating to the administration of ad valorem taxation and to certain measures involving school district property values.
The bill was read second time and was passed to engrossment by a viva voce vote.
All Members are deemed to have voted "Yea" on the passage to engrossment except as follows:
Absent-excused:iiCarona.
COMMITTEEiiSUBSTITUTE
SENATE BILL 1652 ON THIRD READING
Senator Staples moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSSBi1652 be placed on its third reading and final passage.
The motion prevailed by the following vote:iiYeasi30, Naysi0.
Absent-excused:iiCarona.
The bill was read third time and was passed by the following vote:iiYeasi30, Naysi0.ii(Same as previous roll call)
BILLS AND RESOLUTIONS SIGNED
The Presiding Officer announced the signing of the following enrolled bills and resolutions in the presence of the Senate after the captions had been read:
HBi409, HBi1363, HBi1418, HBi1508, HBi1531, HBi1695, HBi1759, HBi1912, HBi1913, HBi1970, HBi1982, HBi2032, HBi2096, HBi2171, HBi2202, HBi2208, HBi2256, HBi2274, HBi2298, HBi2549, HBi2553, HBi2814, HBi3489, HCRi89, HCRi120, HCRi147, HCRi163, HCRi164, HCRi173, HCRi191, HCRi196.
HOUSE BILL 3376 REREFERRED
Senator Lucio submitted a Motion In Writing requesting that HBi3376 be withdrawn from the Committee on Criminal Justice and rereferred to the Committee on Business and Commerce.
The Motion In Writing prevailed without objection.
BILLS SIGNED
The Presiding Officer announced the signing of the following enrolled bills in the presence of the Senate after the captions had been read:
2494 79th Legislature — Regular Session 71st Day
HBi81, HBi87, HBi168, HBi203, HBi204, HBi207, HBi210, HBi307, HBi350, HBi413, HBi472, HBi546, HBi596, HBi614, HBi678, HBi723, HBi735, HBi774, HBi854, HBi883, HBi942, HBi957, HBi1097, HBi1191, HBi1201, HBi1285, HBi1361, HBi1362.
MESSAGE FROM THE HOUSE
HOUSE CHAMBER
Austin, Texas
May 17, 2005
The Honorable President of the Senate
Senate Chamber
Austin, Texas
Mr. President:
I am directed by the House to inform the Senate that the House has taken the following action:
THE HOUSE HAS PASSED THE FOLLOWING MEASURES:
SB 419, Relating to the continuation and functions of the Texas State Board of Medical Examiners, Texas State Board of Physician Assistant Examiners, and Texas State Board of Acupuncture Examiners and the regulation of health care professions regulated by those state agencies; providing administrative penalties.
(Committee Substitute/Amended)
Respectfully,
/s/Robert Haney, Chief Clerk
House of Representatives
COMMITTEEiiSUBSTITUTE
SENATE BILL 1691 ON SECOND READING
Senator Duncan moved to suspend the regular order of business to take up for consideration CSSBi1691 at this time on its second reading:
CSSB 1691, Relating to certain retired school employees and the powers and duties of the Teacher Retirement System of Texas; providing a penalty.
The motion prevailed.
Senators Ellis, Eltife, Hinojosa, Shapleigh, West, and Whitmire asked to be recorded as voting "Nay" on suspension of the regular order of business.
The bill was read second time.
Senator Barrientos offered the following amendment to the bill:
Floor Amendment No. 1
Amend CSSB 1691, in Section 11 of the bill (committee printing page 6, line 36), strike "2006" and substitute "2007".
The amendment to CSSB 1691 was read and was adopted by a viva voce vote.
Tuesday, May 17, 2005 SENATE JOURNAL 2495
All Members are deemed to have voted "Yea" on the adoption of Floor Amendment No. 1 except as follows:
Absent-excused:iiCarona.
Senator Barrientos offered the following amendment to the bill:
Floor Amendment No. 2
Amend CSSB 1691 by striking Section 12 of the bill (committee printing page 6, lines 62-69) in its entirety and inserting the following new Section 12.
SECTIONi12.iiSection 825.110, Government Code, is amended to read as follows:
Sectioni825.110.iiDETERMINATION OF ANNUAL COMPENSATION. The
board of trustees [may] shall adopt rules to exclude from annual compensation all or
part of salary and wages in the final years of a member's employment that reasonably
can be presumed to have been derived from a conversion of fringe benefits,
maintenance, or other payments not includable in annual compensation to salary and
wages. The board of trustees [may] shall adopt rules that include a percentage
limitation on the amount of increases in annual compensation that may be subject to
credit and deposit during a member's final years of employment.
The amendment was read.
On motion of Senator Duncan, Floor Amendment No. 2 to CSSBi1691 was tabled by the following vote:iiYeasi18, Naysi12.
Yeas:iiArmbrister, Averitt, Brimer, Deuell, Duncan, Estes, Fraser, Harris, Jackson, Janek, Lindsay, Nelson, Ogden, Seliger, Shapiro, Staples, Wentworth, Williams.
Nays:iiBarrientos, Ellis, Eltife, Gallegos, Hinojosa, Lucio, Madla, Shapleigh, VanideiPutte, West, Whitmire, Zaffirini.
Absent-excused:iiCarona.
On motion of Senator Duncan and by unanimous consent, the caption was amended to conform to the body of the bill as amended.
CSSB 1691 as amended was passed to engrossment by a viva voce vote.
All Members are deemed to have voted "Yea" on the passage to engrossment except as follows:
Absent-excused:iiCarona.
MOTION TO PLACE
COMMITTEEiiSUBSTITUTE
SENATE BILL 1691 ON THIRD READING
Senator Duncan moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSSBi1691 be placed on its third reading and final passage.
The motion was lost by the following vote:iiYeasi20, Naysi10.i (Not receiving four-fifths vote of Members present)
2496 79th Legislature — Regular Session 71st Day
Yeas:iiArmbrister, Averitt, Brimer, Deuell, Duncan, Estes, Fraser, Harris, Jackson, Janek, Lindsay, Lucio, Madla, Nelson, Ogden, Seliger, Shapiro, Staples, Wentworth, Williams.
Nays:iiBarrientos, Ellis, Eltife, Gallegos, Hinojosa, Shapleigh, VanideiPutte, West, Whitmire, Zaffirini.
Absent-excused:iiCarona.
GUESTS PRESENTED
Senator Staples was recognized and introduced to the Senate a group of students from Palestine High School in Palestine.
The Senate welcomed its guests.
(President in Chair)
COMMITTEEiiSUBSTITUTE
SENATE BILL 548 ON SECOND READING
Senator Ellis moved to suspend the regular order of business to take up for consideration CSSBi548 at this time on its second reading:
CSSB 548, Relating to considerations by the Board of Pardons and Paroles regarding clemency matters.
The motion prevailed.
Senators Eltife, Jackson, Seliger, and Williams asked to be recorded as voting "Nay" on suspension of the regular order of business.
The bill was read second time and was passed to engrossment by the following vote:iiYeasi19, Naysi9.
Yeas:iiArmbrister, Averitt, Barrientos, Brimer, Deuell, Ellis, Gallegos, Harris, Hinojosa, Lindsay, Lucio, Madla, Nelson, Shapleigh, VanideiPutte, Wentworth, West, Whitmire, Zaffirini.
Nays:iiEltife, Estes, Jackson, Janek, Ogden, Seliger, Shapiro, Staples, Williams.
Absent:iiDuncan, Fraser.
Absent-excused:iiCarona.
MOTION TO PLACE
COMMITTEEiiSUBSTITUTE
SENATE BILL 548 ON THIRD READING
Senator Ellis moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSSBi548 be placed on its third reading and final passage.
The motion was lost by the following vote:iiYeasi19, Naysi9.i (Not receiving four-fifths vote of Members present)
Yeas:iiArmbrister, Averitt, Barrientos, Brimer, Deuell, Ellis, Gallegos, Harris, Hinojosa, Lindsay, Lucio, Madla, Nelson, Shapleigh, VanideiPutte, Wentworth, West, Whitmire, Zaffirini.
Tuesday, May 17, 2005 SENATE JOURNAL 2497
Nays:iiEltife, Estes, Jackson, Janek, Ogden, Seliger, Shapiro, Staples, Williams.
Absent:iiDuncan, Fraser.
Absent-excused:iiCarona.
SENATE RULES SUSPENDED
(Posting Rules)
On motion of Senator Madla and by unanimous consent, Senate Rule 11.10(a) and Senate Rule 11.18(a) were suspended in order that the Committee on Intergovernmental Relations might meet and consider the following bills and resolution today:iiSJRi12, HBi1977, HBi2589, HBi3528.
SENATE RULE 11.10(a) SUSPENDED
(Public Notice of Committee Meetings)
On motion of Senator Lindsay and by unanimous consent, Senate Rule 11.10(a) was suspended in order that the Committee on Nominations might meet today.
SENATE RULE 11.18(a) SUSPENDED
(Public Hearings)
On motion of Senator Armbrister and by unanimous consent, Senate Rule 11.18(a) was suspended in order that the Committee on Natural Resources might consider the following bills today:iiHBi1763, HBi1996, HBi2876.
SENATE RULE 11.13 SUSPENDED
(Consideration of Bills in Committees)
On motion of Senator Brimer and by unanimous consent, Senate Rule 11.13 was suspended to grant all committees permission to meet while the Senate is meeting today.
SENATE RULES SUSPENDED
(Posting Rules)
On motion of Senator Staples and by unanimous consent, Senate Rule 11.10(a) and Senate Rule 11.18(a) were suspended in order that the Committee on Transportation and Homeland Security might meet and consider the following bills today:iiHBi2656, HBi2799, HBi2894.
MOTION TO ADJOURN
On motion of Senator Whitmire and by unanimous consent, the Senate at 2:10ip.m. agreed to adjourn, in memory of Linda Ann Whipp Bonham of Cleburne and Jose Mendoza Lopez of San Antonio, upon completion of the introduction of bills and resolutions on first reading, until 11:00 a.m. tomorrow.
SENATE RESOLUTION ON FIRST READING
The following resolution was introduced, read first time, and referred to the committee indicated:
2498 79th Legislature — Regular Session 71st Day
SCRi38 by West
Memorializing the United States Congress to reaffirm its commitment to protecting the rights of minorities by reauthorizing Section 5 of the Voting Rights Act in 2007.
To Committee on State Affairs.
HOUSE BILLS AND RESOLUTIONS ON FIRST READING
The following bills and resolutions received from the House were read first time and referred to the committees indicated:
HB 31 to Committee on Education.
HB 34 to Committee on Intergovernmental Relations.
HB 39 to Committee on Intergovernmental Relations.
HB 65 to Committee on Criminal Justice.
HB 133 to Committee on Education.
HB 164 to Committee on Criminal Justice.
HB 273 to Committee on Intergovernmental Relations.
HB 275 to Committee on Intergovernmental Relations.
HB 363 to Committee on Business and Commerce.
HB 407 to Committee on Education.
HB 502 to Committee on Criminal Justice.
HB 573 to Committee on Finance.
HB 580 to Committee on Natural Resources.
HB 582 to Committee on Criminal Justice.
HB 602 to Committee on Intergovernmental Relations.
HB 609 to Committee on Education.
HB 615 to Committee on Criminal Justice.
HB 637 to Committee on Business and Commerce.
HB 677 to Committee on Health and Human Services.
HB 776 to Committee on Education.
HB 781 to Committee on Criminal Justice.
HB 873 to Committee on State Affairs.
HB 908 to Committee on Government Organization.
HB 986 to Committee on Transportation and Homeland Security.
HB 1030 to Committee on State Affairs.
HB 1053 to Committee on Natural Resources.
HB 1075 to Committee on Criminal Justice.
HB 1092 to Committee on Intergovernmental Relations.
HB 1102 to Committee on Education.
HB 1106 to Committee on Education.
HB 1173 to Committee on Education.
HB 1203 to Committee on Intergovernmental Relations.
HB 1207 to Committee on Natural Resources.
HB 1220 to Committee on Health and Human Services.
HB 1234 to Committee on Business and Commerce.
HB 1252 to Committee on Health and Human Services.
HB 1294 to Committee on State Affairs.
HB 1342 to Committee on Finance.
Tuesday, May 17, 2005 SENATE JOURNAL 2499
HB 1399 to Committee on Business and Commerce.
HB 1404 to Committee on Jurisprudence.
HB 1414 to Committee on State Affairs.
HB 1434 to Committee on Government Organization.
HB 1449 to Committee on Jurisprudence.
HB 1472 to Committee on Jurisprudence.
HB 1474 to Committee on State Affairs.
HB 1475 to Committee on Intergovernmental Relations.
HB 1481 to Committee on Transportation and Homeland Security.
HB 1485 to Committee on State Affairs.
HB 1502 to Committee on Health and Human Services.
HB 1516 to Committee on Government Organization.
HB 1570 to Committee on State Affairs.
HB 1574 to Committee on Criminal Justice.
HB 1580 to Committee on State Affairs.
HB 1583 to Committee on Business and Commerce.
HB 1632 to Committee on Intergovernmental Relations.
HB 1636 to Committee on Natural Resources.
HB 1648 to Committee on Intergovernmental Relations.
HB 1655 to Committee on Finance.
HB 1664 to Committee on State Affairs.
HB 1719 to Committee on State Affairs.
HB 1740 to Committee on Natural Resources.
HB 1744 to Committee on Business and Commerce.
HB 1748 to Committee on Education.
HB 1772 to Committee on Intergovernmental Relations.
HB 1775 to Committee on State Affairs.
HB 1777 to Committee on Business and Commerce.
HB 1791 to Committee on Education.
HB 1822 to Committee on Transportation and Homeland Security.
HB 1829 to Committee on Education.
HB 1851 to Committee on Intergovernmental Relations.
HB 1859 to Committee on Criminal Justice.
HB 1885 to Committee on Transportation and Homeland Security.
HB 1890 to Committee on Business and Commerce.
HB 1891 to Committee on Business and Commerce.
HB 1892 to Committee on Business and Commerce.
HB 1896 to Committee on Criminal Justice.
HB 1928 to Committee on Intergovernmental Relations.
HB 2023 to Committee on Criminal Justice.
HB 2064 to Committee on Business and Commerce.
HB 2065 to Committee on Business and Commerce.
HB 2101 to Committee on Health and Human Services.
HB 2109 to Committee on Education.
HB 2140 to Committee on Natural Resources.
HB 2144 to Committee on State Affairs.
2500 79th Legislature — Regular Session 71st Day
HB 2157 to Committee on Business and Commerce.
HB 2162 to Committee on Education.
HB 2163 to Committee on Criminal Justice.
HB 2177 to Committee on Transportation and Homeland Security.
HB 2180 to Committee on Health and Human Services.
HB 2193 to Committee on Criminal Justice.
HB 2221 to Committee on Education.
HB 2235 to Committee on Intergovernmental Relations.
HB 2249 to Committee on State Affairs.
HB 2254 to Committee on Intergovernmental Relations.
HB 2300 to Committee on Transportation and Homeland Security.
HB 2309 to Committee on State Affairs.
HB 2329 to Committee on Finance.
HB 2371 to Committee on State Affairs.
HB 2388 to Committee on Business and Commerce.
HB 2402 to Committee on Intergovernmental Relations.
HB 2421 to Committee on Business and Commerce.
HB 2437 to Committee on Business and Commerce.
HB 2471 to Committee on Health and Human Services.
HB 2496 to Committee on Transportation and Homeland Security.
HB 2525 to Committee on Government Organization.
HB 2551 to Committee on State Affairs.
HB 2593 to Committee on Government Organization.
HB 2596 to Committee on State Affairs.
HB 2618 to Committee on Intergovernmental Relations.
HB 2640 to Committee on Intergovernmental Relations.
HB 2651 to Committee on Natural Resources.
HB 2701 to Committee on Education.
HB 2750 to Committee on Jurisprudence.
HB 2765 to Committee on Health and Human Services.
HB 2769 to Committee on Criminal Justice.
HB 2791 to Committee on Criminal Justice.
HB 2793 to Committee on Natural Resources.
HB 2810 to Committee on State Affairs.
HB 2863 to Committee on Transportation and Homeland Security.
HB 2901 to Committee on Natural Resources.
HB 2956 to Committee on Education.
HB 2957 to Committee on Intergovernmental Relations.
HB 2965 to Committee on Business and Commerce.
HB 2999 to Committee on State Affairs.
HB 3012 to Committee on Education.
HB 3024 to Committee on Natural Resources.
HB 3045 to Committee on Jurisprudence.
HB 3073 to Committee on Business and Commerce.
HB 3098 to Committee on Jurisprudence.
HB 3112 to Committee on Government Organization.
Tuesday, May 17, 2005 SENATE JOURNAL 2501
HB 3122 to Committee on Criminal Justice.
HB 3140 to Committee on Business and Commerce.
HB 3152 to Committee on Criminal Justice.
HB 3169 to Committee on State Affairs.
HB 3207 to Committee on Criminal Justice.
HB 3208 to Committee on Criminal Justice.
HB 3221 to Committee on Business and Commerce.
HB 3271 to Committee on State Affairs.
HB 3284 to Committee on Natural Resources.
HB 3299 to Committee on State Affairs.
HB 3300 to Committee on Business and Commerce.
HB 3302 to Committee on Veteran Affairs and Military Installations.
HB 3357 to Committee on Health and Human Services.
HB 3409 to Committee on Intergovernmental Relations.
HB 3410 to Committee on State Affairs.
HB 3423 to Committee on Natural Resources.
HB 3425 to Committee on Transportation and Homeland Security.
HB 3426 to Committee on International Relations and Trade.
HB 3428 to Committee on Business and Commerce.
HB 3441 to Committee on Jurisprudence.
HB 3477 to Committee on Natural Resources.
HB 3478 to Committee on Natural Resources.
HB 3479 to Committee on Intergovernmental Relations.
HB 3486 to Committee on Intergovernmental Relations.
HB 3487 to Committee on Intergovernmental Relations.
HB 3497 to Committee on Intergovernmental Relations.
HB 3508 to Committee on Intergovernmental Relations.
HB 3513 to Committee on Natural Resources.
HB 3515 to Committee on Jurisprudence.
HB 3516 to Committee on Intergovernmental Relations.
HB 3517 to Committee on Intergovernmental Relations.
HB 3518 to Committee on Intergovernmental Relations.
HB 3520 to Committee on Intergovernmental Relations.
HB 3524 to Committee on Intergovernmental Relations.
HB 3525 to Committee on Intergovernmental Relations.
HB 3526 to Committee on Intergovernmental Relations.
HB 3527 to Committee on Natural Resources.
HB 3533 to Committee on Intergovernmental Relations.
HB 3537 to Committee on Intergovernmental Relations.
HB 3542 to Committee on Jurisprudence.
HB 3543 to Committee on Jurisprudence.
HB 3550 to Committee on Intergovernmental Relations.
HB 3560 to Committee on Intergovernmental Relations.
HB 3563 to Committee on Education.
HCR 34 to Committee on Administration.
HCR 96 to Committee on Natural Resources.
2502 79th Legislature — Regular Session 71st Day
HCR 98 to Committee on Administration.
HCR 105 to Committee on Administration.
HCR 108 to Committee on Administration.
HCR 117 to Committee on Administration.
HCR 138 to Committee on Veteran Affairs and Military Installations.
HCR 143 to Committee on Finance.
HCR 153 to Committee on Jurisprudence.
HCR 155 to Committee on Natural Resources.
RESOLUTIONS OF RECOGNITION
The following resolutions were adopted by the Senate:
Memorial Resolution
SR 926 by Ogden, In memory of Gardner Golston Osborn of Bryan.
Congratulatory Resolutions
SCR 36 by Armbrister, Recognizing Paula C. Flowerday on the occasion of her retirement.
SR 921 by Barrientos, Recognizing Kathy Robertson on the occasion of her retirement.
SR 922 by Carona, Congratulating Michael Bracken for his election as board chair of the Texas Nursery and Landscape Association.
SR 924 by Shapiro, Recognizing the 57th anniversary of the State of Israel.
SR 927 by Fraser, Recognizing Renaldo Dario Simoni on the occasion of his graduation from the United States Military Academy at West Point.
SR 928 by Ellis, Recognizing Rebecca Walton on the occasion of her graduation from Texas Southern University.
SR 929 by Ellis, Recognizing English Mone't Pratts on the occasion of her graduation from Xavier University of Lousiana.
SR 930 by Ellis, Recognizing Christopher David Smith on the occasion of his graduation from the School of Law and the Lyndon B. Johnson School of Public Affairs at The University of Texas at Austin.
SR 931 by Ellis, Recognizing Johnte' Archer Harris on the occasion of her graduation from Pepperdine University School of Law.
SR 932 by Madla, Recognizing the Nueces Canyon High School Robotics Team for winning a state championship title.
SR 933 by Madla, Commending Jimmy Pate and Jack Bow of Alpine for maintaining the tradition of the locally-owned hometown business.
SR 934 by Barrientos, Recognizing Jonathon Joseph Pabich for his service to his country.
HCR 111 (Eltife), Honoring the silver anniversary of the East Texas Oil Museum in Kilgore and the diamond anniversary of the discovery of the East Texas Oil Field.
Tuesday, May 17, 2005 SENATE JOURNAL 2503
HCR 168 (VanideiPutte), Recognizing the problem of obesity in Texas and encouraging awareness of prevention and treatment methods.
Official Designation Resolutions
SCR 39 by Deuell, Designating July 2005 as Lawn Mower Safety Awareness Month.
HCR 124 (Zaffirini), Designating April as Child Safety Month in Texas.
(Senator Staples in Chair)
ADJOURNMENT
Pursuant to a previously adopted motion, the Senate at 2:19 p.m. adjourned, in memory of Linda Ann Whipp Bonham of Cleburne and Jose Mendoza Lopez of San Antonio, until 11:00 a.m. tomorrow.
AAAPPENDIXAA
COMMITTEE REPORTS
The following committee reports were received by the Secretary of the Senate in the order listed:
May 17, 2005
ADMINISTRATION — HBi2900, HBi2017, HBi2018, HBi2019
GOVERNMENT ORGANIZATION — HBi1283, HBi1535, HBi2025, HBi2473, HBi3147, HBi2856, HBi3269
BUSINESS AND COMMERCE — CSHBi989, CSHBi2760
HEALTH AND HUMAN SERVICES — CSHBi916, CSHBi1126, CSHBi2579, CSHBi2680
INTERGOVERNMENTAL RELATIONS — SBi1898, CSHBi167, CSHBi1835, CSHBi2587
NATURAL RESOURCES — CSSBi1512, CSHBi2027, HBi2129i(Amended), SBi1890, CSHBi467, CSHBi1959, HBi2428, CSHBi2430, CSHBi2481
STATE AFFAIRS — CSSBi1404, HBi418, HBi617, HBi1071, HBi1271, HBi1382, HBi1426, HBi1509, HBi1614, HBi2068, HBi2069, HBi2280, HBi2322, HBi2465, HBi2678, HBi3200
SENT TO GOVERNOR
May 17, 2005
SBi15, SBi846, SBi1027, SBi1537
2504 79th Legislature — Regular Session 71st Day
In Memory
of
Linda Ann Whipp Bonham
Senate Resolution 899
WHEREAS, The Senate of the State of Texas joins the citizens of Cleburne in mourning the loss of Linda Ann Whipp Bonham, who died October 18, 2004, at the age of 61; and
WHEREAS, Linda was born in Cleburne May 17, 1943, to J.B. and Phebe Horne Whipp; she married the love of her life, Bill Bonham, on August 4, 1961; and
WHEREAS, She was an avid gardener, and she left her entire family with a greater appreciation for the beautiful native Texas landscapes; and
WHEREAS, She was a devout member of Lane Prairie Baptist Church, and the pastor and church members ministered to her and her family while she fought a courageous battle against cancer; and
WHEREAS, A woman of compassion, strength, and generosity, Linda gave unselfishly to others; she was a devoted wife and mother, and she leaves behind memories that will be treasured forever by her family and many friends; now, therefore, be it
RESOLVED, That the Senate of the State of Texas, 79th Legislature, hereby extend sincere condolences to the bereaved family of Linda Ann Whipp Bonham: her husband, W.E. "Bill" Bonham; her sons and daughters-in-law, Jeff and Leigh Ann Bonham and Ben and Donna Bonham; her mother, Phebe Whipp; her beautiful grandchildren, Erica, Baylee, and Josh; her sisters, Marilyn Bell, Laura Baize, and Carol Johnson; and her brother, George Whipp; and, be it further
RESOLVED, That a copy of this Resolution be prepared for the members of her family as an expression of deepest sympathy from the Texas Senate, and that when the Senate adjourns this day, it do so in memory of Linda Ann Whipp Bonham.
AVERITT
Tuesday, May 17, 2005 SENATE JOURNAL 2505