Law:Title 5. Workers' Compensation (Texas)

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Subtitle A. Texas Workers' Compensation Act

Contents

Chapter 401. General Provisions

Subchapter A. Short Title; Application Of Sunset Act

Section  401.001.  Short Title.

This subtitle may be cited as the Texas Workers' Compensation Act.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.



Section  401.003.  Activities Of The State Auditor.

(a) The division is subject to audit by the state auditor in accordance with Chapter 321, Government Code.  The state auditor may audit:

(1)  the structure and internal controls of the division;

(2)  the level and quality of service provided by the division to employers, injured employees, insurance carriers, self-insured governmental entities, and other participants;

(3)  the implementation of statutory mandates by the division;

(4)  employee turnover;

(5)  information management systems, including public access to nonconfidential information;

(6)  the adoption and implementation of administrative rules by the commissioner; and

(7)  assessment of administrative violations and the penalties for those violations.

(b)  Nothing in this section limits the authority of the state auditor under Chapter 321, Government Code.

Added by Acts 2001, 77th Leg., ch. 1456, Sec. 7.02, eff. June 17, 2001.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 3.002, eff. September 1, 2005.



Subchapter B. Definitions

Section  401.011.  General Definitions.

In this subtitle:

(1)  "Adjuster" means a person licensed under Chapter 4101, Insurance Code.

(2)  "Administrative violation" means a violation of this subtitle, a rule adopted under this subtitle, or an order or decision of the commissioner that is subject to penalties and sanctions as provided by this subtitle.

(3)  "Agreement" means the resolution by the parties to a dispute under this subtitle of one or more issues regarding an injury, death, coverage, compensability, or compensation. The term does not include a settlement.

(4)  "Alien" means a person who is not a citizen of the United States.

(5)  "Benefit" means a medical benefit, an income benefit, a death benefit, or a burial benefit based on a compensable injury.

(5-a)  "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.

(6)  "Certified self-insurer" means a private employer granted a certificate of authority to self-insure, as authorized by this subtitle, for the payment of compensation.

(7)  "Child" means a son or daughter. The term includes an adopted child or a stepchild who is a dependent of the employee.

(8)  "Commissioner" means the commissioner of workers' compensation.

(9)  "Commute" means to pay in a lump sum.

(10)  "Compensable injury" means an injury that arises out of and in the course and scope of employment for which compensation is payable under this subtitle.

(11)  "Compensation" means payment of a benefit.

(12)  "Course and scope of employment" means an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer. The term includes an activity conducted on the premises of the employer or at other locations. The term does not include:

(A)  transportation to and from the place of employment unless:

(i)  the transportation is furnished as a part of the contract of employment or is paid for by the employer;

(ii)  the means of the transportation are under the control of the employer; or

(iii)  the employee is directed in the employee's employment to proceed from one place to another place; or

(B)  travel by the employee in the furtherance of the affairs or business of the employer if the travel is also in furtherance of personal or private affairs of the employee unless:

(i)  the travel to the place of occurrence of the injury would have been made even had there been no personal or private affairs of the employee to be furthered by the travel; and

(ii)  the travel would not have been made had there been no affairs or business of the employer to be furthered by the travel.

(12-a)  "Credentialing" has the meaning assigned by Chapter 1305, Insurance Code.

(13)  "Death benefit" means a payment made under this subtitle to a legal beneficiary because of the death of an employee.

(13-a)  "Department" means the Texas Department of Insurance.

(14)  "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 Chapter 408.

(15)  "Designated doctor" means a doctor appointed by mutual agreement of the parties or by the division to recommend a resolution of a dispute as to the medical condition of an injured employee.

(16)  "Disability" means the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage.

(16-a)  "Division" means the division of workers' compensation of the department.

(17)  "Doctor" means a doctor of medicine, osteopathic medicine, optometry, dentistry, podiatry, or chiropractic who is licensed and authorized to practice.

(18)  "Employer" means, unless otherwise specified, a person who makes a contract of hire, employs one or more employees, and has workers' compensation insurance coverage. The term includes a governmental entity that self-insures, either individually or collectively.

(18-a)  "Evidence-based medicine" means the use of current best quality scientific and medical evidence formulated from credible scientific studies, including peer-reviewed medical literature and other current scientifically based texts, and treatment and practice guidelines in making decisions about the care of individual patients.

(19)  "Health care" 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)  medical, surgical, chiropractic, podiatric, optometric, dental, nursing, and physical therapy services provided by or at the direction of a doctor;

(B)  physical rehabilitation services performed by a licensed occupational therapist provided by or at the direction of a doctor;

(C)  psychological services prescribed by a doctor;

(D)  the services of a hospital or other health care facility;

(E)  a prescription drug, medicine, or other remedy; and

(F)  a medical or surgical supply, appliance, brace, artificial member, or prosthetic or orthotic device, including the fitting of, change or repair to, or training in the use of the appliance, brace, member, or device.

(20)  "Health care facility" means a hospital, emergency clinic, outpatient clinic, or other facility providing health care.

(21)  "Health care practitioner" means:

(A)  an individual who is licensed to provide or render and provides or renders health care; or

(B)  a nonlicensed individual who provides or renders health care under the direction or supervision of a doctor.

(22)  "Health care provider" means a health care facility or health care practitioner.

(22-a)  "Health care reasonably required" means health care that is clinically appropriate and considered effective for the injured employee's injury and provided in accordance with best practices consistent with:

(A)  evidence-based medicine; or

(B)  if that evidence is not available, generally accepted standards of medical practice recognized in the medical community.

(23)  "Impairment" means any anatomic or functional abnormality or loss existing after maximum medical improvement that results from a compensable injury and is reasonably presumed to be permanent.

(24)  "Impairment rating" means the percentage of permanent impairment of the whole body resulting from a compensable injury.

(25)  "Income benefit" means a payment made to an employee for a compensable injury. The term does not include a medical benefit, death benefit, or burial benefit.

(25-a)  "Independent review organization" has the same meaning as in Section 1305.004(a)(11), Insurance Code.

(26)  "Injury" means damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm. The term includes an occupational disease.

(27)  "Insurance carrier" means:

(A)  an insurance company;

(B)  a certified self-insurer for workers' compensation insurance;

(C)  a certified self-insurance group under Chapter 407A; or

(D)  a governmental entity that self-insures, either individually or collectively.

(28)  "Insurance company" means a person authorized and admitted by the Texas Department of Insurance to do insurance business in this state under a certificate of authority that includes authorization to write workers' compensation insurance.

(29)  "Legal beneficiary" means a person entitled to receive a death benefit under this subtitle.

(30)  "Maximum medical improvement" means the earlier of:

(A)  the 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)  the expiration of 104 weeks from the date on which income benefits begin to accrue; or

(C)  the date determined as provided by Section 408.104.

(31)  "Medical benefit" means payment for health care reasonably required by the nature of a compensable injury and intended to:

(A)  cure or relieve the effects naturally resulting from the compensable injury, including reasonable expenses incurred by the employee for necessary treatment to cure and relieve the employee from the effects of an occupational disease before and after the employee knew or should have known the nature of the disability and its relationship to the employment;

(B)  promote recovery; or

(C)  enhance the ability of the employee to return to or retain employment.

(31-a)  "Network" or "workers' compensation health care network" means an organization that is:

(A)  formed as a health care provider network to provide health care services to injured employees;

(B)  certified in accordance with Chapter 1305, Insurance Code, and rules of the commissioner of insurance; and

(C)  established by, or operates under contract with, an insurance carrier.

(32)  "Objective" means independently verifiable or confirmable results that are based on recognized laboratory or diagnostic tests, or signs confirmable by physical examination.

(33)  "Objective clinical or laboratory finding" means a medical finding of impairment resulting from a compensable injury, based on competent objective medical evidence, that is independently confirmable by a doctor, including a designated doctor, without reliance on the subjective symptoms perceived by the employee.

(34)  "Occupational disease" means a disease arising out of and in the course of employment that causes damage or harm to the physical structure of the body, including a repetitive trauma injury. The term includes a disease or infection that naturally results from the work-related disease. The term does not include an ordinary disease of life to which the general public is exposed outside of employment, unless that disease is an incident to a compensable injury or occupational disease.

(34-a)  "Orthotic device" means a custom-fitted or custom-fabricated medical device that is applied to a part of the human body to correct a deformity, improve function, or relieve symptoms related to a compensable injury or occupational disease.

(35)  "Penalty" means a fine established by this subtitle.

(35-a)  "Prosthetic device" means an artificial device designed to replace, wholly or partly, an arm or leg.

(36)  "Repetitive trauma injury" means damage or harm to the physical structure of the body occurring as the result of repetitious, physically traumatic activities that occur over time and arise out of and in the course and scope of employment.

(37)  "Representative" means a person, including an attorney, authorized by the commissioner 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)  "Research center" means the research functions of the Texas Department of Insurance required under Chapter 405.

(38-a)  "Retrospective review" means the utilization review process of reviewing the medical necessity and reasonableness of health care that has been provided to an injured employee.

(39)  "Sanction" means a penalty or other punitive action or remedy imposed by the commissioner on an insurance carrier, representative, employee, employer, or health care provider for an act or omission in violation of this subtitle or a rule, order, or decision of the commissioner.

(40)  "Settlement" means a final resolution of all the issues in a workers' compensation claim that are permitted to be resolved under the terms of this subtitle.

(41)  "Subjective" means perceivable only by an employee and not independently verifiable or confirmable by recognized laboratory or diagnostic tests or signs observable by physical examination.

(42)  "Treating doctor" means the doctor who is primarily responsible for the employee's health care for an injury.

(42-a)  "Utilization review" has the meaning assigned by Chapter 4201, Insurance Code.

(42-b)  "Utilization review agent" has the meaning assigned by Chapter 4201, Insurance Code.

(42-c)  "Violation" means an administrative violation subject to penalties and sanctions as provided by this subtitle.

(43)  "Wages" includes all forms of remuneration payable for a given period to an employee for personal services. The term includes the market value of board, lodging, laundry, fuel, and any other advantage that can be estimated in money that the employee receives from the employer as part of the employee's remuneration.

(44)  "Workers' compensation insurance coverage" means:

(A)  an approved insurance policy to secure the payment of compensation;

(B)  coverage to secure the payment of compensation through self-insurance as provided by this subtitle; or

(C)  coverage provided by a governmental entity to secure the payment of compensation.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 1443, Sec. 1, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 275, Sec. 2, eff. Sept. 1, 2003.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 3.003, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch. 133, Sec. 1, eff. September 1, 2007.

Acts 2007, 80th Leg., R.S., Ch. 134, Sec. 1, eff. September 1, 2007.

Acts 2007, 80th Leg., R.S., Ch. 147, Sec. 1, eff. September 1, 2007.

Acts 2009, 81st Leg., R.S., Ch. 1330, Sec. 13, eff. September 1, 2009.



Section  401.012.  Definition Of Employee.

(a) In this subtitle, "employee" means each person in the service of another under a contract of hire, whether express or implied, or oral or written.

(b)  The term "employee" includes:

(1)  an employee employed in the usual course and scope of the employer's business who is directed by the employer temporarily to perform services outside the usual course and scope of the employer's business;

(2)  a person, other than an independent contractor or the employee of an independent contractor, who is engaged in construction, remodeling, or repair work for the employer at the premises of the employer; and

(3)  a person who is a trainee under the Texans Work program established under Chapter 308.

(c)  The term "employee" does not include:

(1)  a master of or a seaman on a vessel engaged in interstate or foreign commerce; or

(2)  a person whose employment is not in the usual course and scope of the employer's business.

(d)  A person who is an employee for the purposes of this subtitle and engaged in work that otherwise may be legally performed is an employee despite:

(1)  a license, permit, or certificate violation arising under state law or municipal ordinance; or

(2)  a violation of a law regulating wages, hours, or work on Sunday.

(e)  This section may not be construed to relieve from fine or imprisonment any individual, firm, or corporation employing or performing work or a service prohibited by a statute of this state or a municipal ordinance.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 456, Sec. 6, eff. Sept. 1, 1997.



Section  401.013.  Definition Of Intoxication.

(a) In this subtitle, "intoxication" means the state of:

(1)  having an alcohol concentration to qualify as intoxicated under Section 49.01(2), Penal Code; or

(2)  not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of:

(A)  an alcoholic beverage, as defined by Section 1.04, Alcoholic Beverage Code;

(B)  a controlled substance or controlled substance analogue, as defined by Section 481.002, Health and Safety Code;

(C)  a dangerous drug, as defined by Section 483.001, Health and Safety Code;

(D)  an abusable glue or aerosol paint, as defined by Section 485.001, Health and Safety Code; or

(E)  any similar substance, the use of which is regulated under state law.

(b)  The term "intoxication" does not include the loss of normal use of mental or physical faculties resulting from the introduction into the body of a substance:

(1)  taken under and in accordance with a prescription written for the employee by the employee's doctor; or

(2)  listed under Subsection (a) by inhalation or absorption incidental to the employee's work.

(c)  On the voluntary introduction into the body of any substance listed under Subsection (a)(2)(B), based on a blood test or urinalysis, it is a rebuttable presumption that a person is intoxicated and does not have the normal use of mental or physical faculties.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 14.48, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 1426, Sec. 1, eff. Sept. 1, 1999.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 3.004, eff. September 1, 2005.



Subchapter C. Miscellaneous Provisions

Section 401.021.  Application Of Other Acts.

Except as otherwise provided by this subtitle:

(1)  a proceeding, hearing, judicial review, or enforcement of a commissioner order, decision, or rule is governed by the following subchapters and sections of Chapter 2001, Government Code:

(A)  Subchapters A, B, D, E, G, and H, excluding Sections 2001.004(3) and 2001.005;

(B)  Sections 2001.051, 2001.052, and 2001.053;

(C)  Sections 2001.056 through 2001.062; and

(D)  Section 2001.141(c);

(2)  a proceeding, hearing, judicial review, or enforcement of a commissioner order, decision, or rule is governed by Subchapters A and B, Chapter 2002, Government Code, excluding Sections 2002.001(3) and 2002.023;

(3)  Chapter 551, Government Code, applies to a proceeding under this subtitle, other than:

(A)  a benefit review conference;

(B)  a contested case hearing;

(C)  a proceeding of the appeals panel;

(D)  arbitration; or

(E)  another proceeding involving a determination on a workers' compensation claim; and

(4)  Chapter 552, Government Code, applies to a workers' compensation record of the division, the department, or the office of injured employee counsel.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.92, 5.95(82), (88), eff. Sept. 1, 1995.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 3.005, eff. September 1, 2005.



Section  401.022.  Discrimination Prohibited.

(a) This subtitle may not be applied to discriminate because of race, sex, national origin, or religion.

(b)  This section does not prohibit consideration of an anatomical difference in application of the impairment guidelines under Chapter 408 in rating an injury or a disease such as, but not limited to, breast cancer or an inguinal hernia. If an impairment rating assigns different values to the same injury for males and females, the higher value shall be applied.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.



Section  401.023.  Interest Or Discount Rate.

(a) Interest or a discount under this subtitle shall be computed at the rate provided by this section.

(b)  The division 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.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. 1426, Sec. 2, eff. Oct. 1, 1999; Acts 2001, 77th Leg., ch. 1456, Sec. 15.01, eff. June 17, 2001.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 3.006, eff. September 1, 2005.



Section  401.024.  Transmission Of Information.

(a) In this section, "electronic transmission" means the transmission of information by facsimile, electronic mail, electronic data interchange, or any other similar method.

(b)  Notwithstanding another provision of this subtitle that specifies the form, manner, or procedure for the transmission of specified information, the commissioner 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 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)  The commissioner may designate and contract with a data collection agent to fulfill the data collection requirements of this subtitle.

(d)  The commissioner may prescribe the form, manner, and procedure for transmitting any authorized or required electronic transmission, including requirements related to security, confidentiality, accuracy, and accountability.

Added by Acts 1999, 76th Leg., ch. 954, Sec. 1, eff. Sept. 1, 1999.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 3.007, eff. September 1, 2005.



Section 401.025.  References To Commission And Executive Director.

(a) A reference in this code or other law to the Texas Workers' Compensation Commission or the executive director of that commission means the division or the commissioner as consistent with the respective duties of the commissioner and the division under this code and other workers' compensation laws of this state.

(b)  A reference in this code or other law to the executive director of the Texas Workers' Compensation Commission means the commissioner.

Added by Acts 2005, 79th Leg., Ch. 265, Sec. 3.008, eff. September 1, 2005.

Chapter 402. Operation And Administration Of Workers' Compensation System

Subchapter A. General Administration Of System; Workers' Compensation Division

Section 402.001.  Administration Of System:  Texas Department Of Insurance; Workers' Compensation Division. (

a) Except as provided by Section 402.002, the Texas Department of Insurance is the state agency designated to oversee the workers' compensation system of this state.  

(b)  The division of workers' compensation is established as a division within the Texas Department of Insurance to administer and operate the workers' compensation system of this state as provided by this title.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 980, Sec. 1.02, eff. Sept. 1, 1995.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 1.003, eff. September 1, 2005.



Section 402.00111.  Relationship Between Commissioner Of Insurance And Commissioner Of Workers' Compensation; Separation Of Authority; Rulemaking.

(a) The division is administered by the commissioner of workers' compensation as provided by this subchapter.  Except as otherwise provided by this title, the commissioner of workers' compensation shall exercise all executive authority, including rulemaking authority, under this title.

(b)  The commissioner of insurance may delegate to the commissioner of workers' compensation or to that person's designee and may redact any delegation, and the commissioner of workers' compensation may delegate to the commissioner of insurance or to that person's designee, any power or duty regarding workers' compensation imposed on the commissioner of insurance or the commissioner of workers' compensation under this title, including the authority to make final orders or decisions.  A delegation made under this subsection must be made in writing.

(c)  The commissioner of insurance shall develop and implement policies that clearly separate the respective responsibilities of the department and the division.

(d)  The commissioner of insurance may provide advice, research, and comment regarding the adoption of rules by the commissioner of workers' compensation under this subtitle.

Added by Acts 2005, 79th Leg., Ch. 265, Sec. 1.004, eff. September 1, 2005.



Section 402.00112.  Investigation Of Division.

The department shall investigate the conduct of the work of the division.  For that purpose, the department shall have access at any time to all division books and records and may require an officer or employee of the division to furnish written or oral information.

Added by Acts 2005, 79th Leg., Ch. 265, Sec. 1.004, eff. September 1, 2005.



Section 402.00113.  Administrative Attachment To Department.

(a) The division of workers' compensation is administratively attached to the department.

(b)  The department shall provide the staff and facilities necessary to enable the division to perform the duties of the division under this title, including:

(1)  administrative assistance and services to the division, including budget planning and purchasing;

(2)  personnel and financial services; and

(3)  computer equipment and support.

(c)  The commissioner of workers' compensation and the commissioner of insurance may enter into agreements as necessary to implement this title.

Added by Acts 2005, 79th Leg., Ch. 265, Sec. 1.004, eff. September 1, 2005.



Section 402.00114.  Duties Of Division; Single Point Of Contact.

(a) In addition to other duties required under this title, the division shall:

(1)  regulate and administer the business of workers' compensation in this state; and

(2)  ensure that this title and other laws regarding workers' compensation are executed.

(b)  To the extent determined feasible by the commissioner, the division shall establish a single point of contact for injured employees receiving services from the division.

Added by Acts 2005, 79th Leg., Ch. 265, Sec. 1.004, eff. September 1, 2005.



Section 402.00115.  Composition Of Division.

The division is composed of the commissioner of workers' compensation and other officers and employees as required to efficiently implement:

(1)  this title;

(2)  other workers' compensation laws of this state; and

(3)  other laws granting jurisdiction or applicable to the division or the commissioner.

Added by Acts 2005, 79th Leg., Ch. 265, Sec. 1.004, eff. September 1, 2005.



Section 402.00116.  Chief Executive.

(a) The commissioner of workers' compensation is the division's chief executive and administrative officer.  The commissioner shall administer and enforce this title, other workers' compensation laws of this state, and other laws granting jurisdiction to or applicable to the division or the commissioner.  Except as otherwise specifically provided by this title, a reference in this title to the "commissioner" means the commissioner of workers' compensation.

(b)  The commissioner has the powers and duties vested in the division by this title and other workers' compensation laws of this state.

Added by Acts 2005, 79th Leg., Ch. 265, Sec. 1.004, eff. September 1, 2005.



Section 402.00117.  Appointment; Term.

(a) The governor, with the advice and consent of the senate, shall appoint the commissioner.  The commissioner serves a two-year term that expires on February 1 of each odd-numbered year.

(b)  The governor shall appoint the commissioner without regard to the race, color, disability, sex, religion, age, or national origin of the appointee.

Added by Acts 2005, 79th Leg., Ch. 265, Sec. 1.004, eff. September 1, 2005.



Section 402.00118.  Qualifications.

The commissioner must:

(1)  be a competent and experienced administrator;

(2)  be well-informed and qualified in the field of workers' compensation; and

(3)  have at least five years of experience as an executive in the administration of business or government or as a practicing attorney, physician, or certified public accountant.

Added by Acts 2005, 79th Leg., Ch. 265, Sec. 1.004, eff. September 1, 2005.



Section 402.00119.  Ineligibility For Public Office.

The commissioner is ineligible to be a candidate for a public elective office in this state unless the commissioner has resigned and the governor has accepted the resignation.

Added by Acts 2005, 79th Leg., Ch. 265, Sec. 1.004, eff. September 1, 2005.



Section 402.00120.  Compensation.

The commissioner is entitled to compensation as provided by the General Appropriations Act.

Added by Acts 2005, 79th Leg., Ch. 265, Sec. 1.004, eff. September 1, 2005.



Section 402.00121.  Grounds For Removal.

(a) It is a ground for removal from office that the commissioner:

(1)  does not have at the time of appointment the qualifications required by Section 402.00118;

(2)  does not maintain during service as commissioner the qualifications required by Section 402.00118;

(3)  violates a prohibition established by Section 402.00122, 402.00124, 402.00125, or 402.00126; or

(4)  cannot because of illness or incapacity discharge the commissioner's duties for a substantial part of the commissioner's term.

(b)  The validity of an action of the commissioner or the division is not affected by the fact that it is taken when a ground for removal of the commissioner exists.

Added by Acts 2005, 79th Leg., Ch. 265, Sec. 1.004, eff. September 1, 2005.



Section 402.00122.  Prohibited Gifts; Administrative Violation.

(a) The commissioner or an employee of the division may not accept a gift, a gratuity, or entertainment from a person having an interest in a matter or proceeding pending before the division.

(b)  A violation of Subsection (a) is an administrative violation and constitutes a ground for removal from office or termination of employment.

Added by Acts 2005, 79th Leg., Ch. 265, Sec. 1.004, eff. September 1, 2005.



Section 402.00123.  Civil Liability Of Commissioner.

The commissioner is not liable in a civil action for an act performed in good faith in the execution of duties as commissioner.

Added by Acts 2005, 79th Leg., Ch. 265, Sec. 1.004, eff. September 1, 2005.



Section 402.00124.  Conflict Of Interest.

(a) In this section, "Texas trade association" means a cooperative and voluntarily joined statewide association of business or professional competitors in this state 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)  A person may not be the commissioner and may not be a division employee employed in a "bona fide executive, administrative, or professional capacity" as that phrase is used for purposes of establishing an exemption to the overtime provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.) if:

(1)  the person is an officer, employee, or paid consultant of a Texas trade association in the field of workers' compensation; or

(2)  the person's spouse is an officer, manager, or paid consultant of a Texas trade association in the field of workers' compensation.

Added by Acts 2005, 79th Leg., Ch. 265, Sec. 1.004, eff. September 1, 2005.



Section 402.00125.  Prohibition On Certain Employment Or Representation.

(a) A former commissioner or former employee of the division involved in hearing cases under this title may not:

(1)  be employed by an insurance carrier that was subject to the scope of the commissioner's or employee's official responsibility while the commissioner or employee was associated with the division; or

(2)  represent a person before the division or a court in a matter:

(A)  in which the commissioner or employee was personally involved while associated with the division; or

(B)  that was within the commissioner's or employee's official responsibilities while the commissioner or employee was associated with the division.

(b)  The prohibition under Subsection (a)(1) applies until the:

(1)  second anniversary of the date the commissioner ceases to serve as the commissioner; and

(2)  first anniversary of the date the employee's employment with the division ceases.

(c)  The prohibition under Subsection (a)(2) applies to a current commissioner or employee of the division while the commissioner or employee is involved in hearing cases under this title and at any time thereafter.

(d)  A person commits an offense if the person violates this section.  An offense under this section is a Class A misdemeanor.

Added by Acts 2005, 79th Leg., Ch. 265, Sec. 1.004, eff. September 1, 2005.



Section 402.00126.  Lobbying Activities.

A person may not serve as commissioner or act as general counsel to the commissioner 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 division.

Added by Acts 2005, 79th Leg., Ch. 265, Sec. 1.004, eff. September 1, 2005.



Section 402.00127.  Training Program For Commissioner.

(a) Not  later than the 90th day after the date on which the commissioner takes office, the commissioner shall complete a training program that complies with this section.

(b)  The training program must provide the commissioner with information regarding:

(1)  the legislation that created the division;

(2)  the programs operated by the division;

(3)  the role and functions of the division;

(4)  the rules of the commissioner of insurance relating to the division, with an emphasis on the rules that relate to disciplinary and investigatory authority;

(5)  the current budget for the division;

(6)  the results of the most recent formal audit of the division;

(7)  the requirements of:

(A)  the open meetings law, Chapter 551, Government Code;

(B)  the public information law, Chapter 552, Government Code;

(C)  the administrative procedure law, Chapter 2001, Government Code; and

(D)  other laws relating to public officials, including conflict-of-interest laws; and

(8)  any applicable ethics policies adopted by the division or the Texas Ethics Commission.

Added by Acts 2005, 79th Leg., Ch. 265, Sec. 1.004, eff. September 1, 2005.



Section 402.00128.  General Powers And Duties Of Commissioner.

(a) The commissioner shall conduct the daily operations of the division and otherwise implement division policy.

(b)  The commissioner or the commissioner's designee may:

(1)  investigate misconduct;

(2)  hold hearings;

(3)  issue subpoenas to compel the attendance of witnesses and the production of documents;

(4)  administer oaths;

(5)  take testimony directly or by deposition or interrogatory;

(6)  assess and enforce penalties established under this title;

(7)  enter appropriate orders as authorized by this title;

(8)  institute an action in the division's name to enjoin the violation of this title;

(9)  initiate an action under Section 410.254 to intervene in a judicial proceeding;

(10)  prescribe the form, manner, and procedure for the transmission of information to the division;

(11)  correct clerical errors in the entry of orders; and

(12)  exercise other powers and perform other duties as necessary to implement and enforce this title.

(c)  The commissioner is the agent for service of process on out-of-state employers.

Added by Acts 2005, 79th Leg., Ch. 265, Sec. 1.004, eff. September 1, 2005.



Section 402.002.  Administration 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.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 2003, 78th Leg., ch. 1170, Sec. 47.01, eff. Sept. 1, 2003.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 1.005, eff. September 1, 2005.



Subchapter B. System Goals; General Administration Of System

Section 402.021.  Goals; Legislative Intent; General Workers' Compensation Mission Of Department.

(a) The basic goals of the workers' compensation system of this state are as follows:

(1)  each employee shall be treated with dignity and respect when injured on the job;

(2)  each injured employee shall have access to a fair and accessible dispute resolution process;

(3)  each injured employee shall have access to prompt, high-quality medical care within the framework established by this subtitle; and

(4)  each 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)  It is the intent of the legislature that, in implementing the goals described by Subsection (a), the workers' compensation system of this state must:

(1)  promote safe and healthy workplaces through appropriate incentives, education, and other actions;

(2)  encourage the safe and timely return of injured employees to productive roles in the workplace;

(3)  provide appropriate income benefits and medical benefits in a manner that is timely and cost-effective;

(4)  provide timely, appropriate, and high-quality medical care supporting restoration of the injured employee's physical condition and earning capacity;

(5)  minimize the likelihood of disputes and resolve them promptly and fairly when identified;

(6)  promote compliance with this subtitle and rules adopted under this subtitle through performance-based incentives;

(7)  promptly detect and appropriately address acts or practices of noncompliance with this subtitle and rules adopted under this subtitle;

(8)  effectively 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

(9)  take maximum advantage of technological advances to provide the highest levels of service possible to system participants and to promote communication among system participants.

(c)  This section may not be construed as:

(1)  creating a cause of action; or

(2)  establishing an entitlement to benefits to which a claimant is not otherwise entitled by this subtitle.

(d)  As provided by this subtitle, the division shall work to promote and help ensure the safe and timely return of injured employees to productive roles in the workforce.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 1098, Sec. 7, eff. Sept. 1, 1997.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 1.0065, eff. September 1, 2005.



Section 402.0215.  Reference To Commission Divisions.

A reference in this title or any other law to the division of workers' health and safety, the division of medical review, the division of compliance and practices, the division of hearings, and the division of self-insurance regulation of the former Texas Workers' Compensation Commission means the division of workers' compensation of the Texas Department of Insurance.

Added by Acts 2005, 79th Leg., Ch. 265, Sec. 2.001, eff. September 1, 2005.



Section 402.022.  Public Interest Information.

(a) The commissioner shall prepare information of public interest describing the functions of the division and the procedures by which complaints are filed with and resolved by the division.

(b)  The commissioner shall make the information available to the public and appropriate state agencies.

(c)  The commissioner by rule shall ensure that each division form, standard letter, and brochure under this subtitle:

(1)  is written in plain language;

(2)  is in a readable and understandable format; and

(3)  complies with all applicable requirements relating to minimum readability requirements.

(d)  The division shall make informational materials described by this section available in English and Spanish.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 2.002, eff. September 1, 2005.



Section   402.023.  Complaint Information.

(a) The commissioner shall:

(1)  adopt rules regarding the filing of a complaint under this subtitle against an individual or entity subject to regulation under this subtitle; and

(2)  ensure that information regarding the complaint process is available on the division's  Internet website.

(b)  The rules adopted under this section must, at a minimum:

(1)  ensure that the division clearly defines in rule the method for filing a complaint; and

(2)  define what constitutes a frivolous complaint under this subtitle.

(c)  The division shall develop and post on the division's Internet website:

(1)  a simple standardized form for filing complaints under this subtitle; and

(2)  information regarding the complaint filing process.

(d)  The division shall keep an information file about each written complaint filed with the division under this subtitle that is unrelated to a specific workers' compensation claim, including a complaint regarding the administration of the workers' compensation system.  The information must include:

(1)  the date the complaint is received;

(2)  the name of the complainant;

(3)  the subject matter of the complaint;

(4)  a record of all persons contacted in relation to the complaint;

(5)  a summary of the results of the review or investigation of the complaint; and

(6)  for complaints for which the division took no action, an explanation of the reason the complaint was closed without action.

(e)  For each written complaint that is unrelated to a specific workers' compensation claim that the division has authority to resolve, the division shall provide to the person filing the complaint and the person about whom the complaint is made information about the division's policies and procedures under this subtitle relating to complaint investigation and resolution.  The division, 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.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 980, Sec. 1.08, eff. Sept. 1, 1995.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 2.003, eff. September 1, 2005.



Section 402.0235.  Priorities For Complaint Investigations.

(a) The division shall assign priorities to complaint investigations under this subtitle based on risk.  In developing priorities under this section, the division shall develop a formal, risk-based complaint investigation system that considers:

(1)  the severity of the alleged violation;

(2)  whether the alleged violator showed continued or wilful noncompliance; and

(3)  whether a commissioner order has been violated.

(b)  The commissioner may develop additional risk-based criteria as determined necessary.

Added by Acts 2005, 79th Leg., Ch. 265, Sec. 2.003, eff. September 1, 2005.



Section 402.024.  Public Participation.

(a) The commissioner shall develop and implement policies that provide the public with a reasonable opportunity to appear before the division and to speak on issues under the general jurisdiction of the division.

(b)  The division shall comply with federal and state laws related to program and facility accessibility.

(c)  In addition to compliance with Subsection (a), the commissioner shall prepare and maintain a written plan that describes how a person who does not speak English may be provided reasonable access to the division's programs and services.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 980, Sec. 1.09, eff. Sept. 1, 1995.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 2.004, eff. September 1, 2005.



Subchapter C. Personnel

Section 402.041.  Appointments.

(a) Subject to the General Appropriations Act or other law, the commissioner shall appoint deputies, assistants, and other personnel as necessary to carry out the powers and duties of the commissioner and the division under this title, other workers' compensation laws of this state, and other laws granting jurisdiction or applicable to the division or the commissioner.

(b)  A person appointed under this section must have the professional, administrative, and workers' compensation experience necessary to qualify the person for the position to which the person is appointed.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 980, Sec. 1.10, eff. Sept. 1, 1995.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 1.007, eff. September 1, 2005.



Section 402.042.  Division Of Responsibilities.

The commissioner shall develop and implement policies that clearly define the respective responsibilities of the commissioner and the staff of the division.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 1.007, eff. September 1, 2005.



Section 402.043.  Career Ladder; Annual Performance Evaluations.

(a) The commissioner or the commissioner's designee shall develop an intra-agency career ladder program that addresses opportunities for mobility and advancement for employees within the division.  The program shall require intra-agency postings of all positions concurrently with any public posting.

(b)  The commissioner or the commissioner's designee shall develop a system of annual performance evaluations that are based on documented employee performance.  All merit pay for division employees must be based on the system established under this subsection.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 1.007, eff. September 1, 2005.



Section 402.044.  Equal Employment Opportunity Policy Statement.

(a) The commissioner or the commissioner's designee shall prepare and maintain a written policy statement to ensure implementation of a program of equal employment opportunity under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin.  The policy statement must include:

(1)  personnel policies, including policies related to recruitment, evaluation, selection, appointment, training, and promotion of personnel that are in compliance with the requirements of Chapter 21;

(2)  a comprehensive analysis of the division work force that meets federal and state guidelines;

(3)  procedures by which a determination can be made of significant underuse in the division work force of all persons for whom federal or state guidelines encourage a more equitable balance; and

(4)  reasonable methods to appropriately address those areas of underuse.

(b)  A policy statement prepared under this section must:

(1)  cover an annual period;

(2)  be updated annually;

(3)  be reviewed by the civil rights division of the Texas Workforce Commission for compliance with Subsection (a)(1); and

(4)  be filed with the Texas Workforce Commission.

(c)  The Texas Workforce Commission shall deliver a biennial report to the legislature based on the information received under Subsection (b).  The report may be made separately or as part of other biennial reports made to the legislature.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 980, Sec. 1.11, eff. Sept. 1, 1995.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 1.007, eff. September 1, 2005.



Subchapter D. General Powers And Duties Of Division And Commissioner

Section 402.061.  Adoption Of Rules.

The commissioner shall adopt rules as necessary for the implementation and enforcement of this subtitle.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 2.006, eff. September 1, 2005.



Section  402.062.  Acceptance Of Gifts, Grants, And Donations.

(a) The division may accept gifts, grants, or donations as provided by rules adopted by the commissioner.

(b)  Repealed by Acts 2005, 79th Leg., Ch. 265, Sec. 7.01(15), eff. September 1, 2005.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. 1426, Sec. 4, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1195, Sec. 2.08, eff. Sept. 1, 2001.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 2.007, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch. 265, Sec. 7.01(15), eff. September 1, 2005.



Section 402.064.  Fees.

In addition to fees established by this subtitle, the commissioner shall set reasonable fees for services provided to persons requesting services from the division, including services provided under Subchapter E.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 2.008, eff. September 1, 2005.



Section 402.065.  Employment Of Counsel.

Notwithstanding Article 1.09-1, Insurance Code, or any other law, the commissioner may employ counsel to represent the division in any legal action the division is authorized to initiate.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 2.009, eff. September 1, 2005.



Section 402.066.  Recommendations To Legislature. (a)

The commissioner shall consider and recommend to the legislature changes to this subtitle, including any statutory changes required by an evaluation conducted under Section 402.074.

(b)  The commissioner shall forward the recommended changes to the legislature not later than December 1 of each even-numbered year.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 2.010, eff. September 1, 2005.



Section 402.0665.  Legislative Oversight.

The legislature may adopt requirements relating to legislative oversight of the division and the workers' compensation system of this state.  The division shall comply with any requirements adopted by the legislature under this section.

Added by Acts 1995, 74th Leg., ch. 980, Sec. 1.13, eff. Sept. 1, 1995.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 2.011, eff. September 1, 2005.



Section 402.067.  Advisory Committees.

The commissioner may appoint advisory committees as the commissioner considers necessary.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 2.012, eff. September 1, 2005.



Section 402.068.  Delegation Of Rights And Duties.

Except as expressly provided by this subtitle, the division may not delegate rights and duties imposed on it by this subchapter.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 980, Sec. 1.14, eff. Sept. 1, 1995.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 2.013, eff. September 1, 2005.



Section 402.069.  Qualifications And Standards Of Conduct Information.

The commissioner or the commissioner's designee shall provide to division employees, as often as necessary, information regarding their:

(1)  qualifications for office or employment under this subtitle; and

(2)  responsibilities under applicable law relating to standards of conduct for state officers or employees.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 980, Sec. 1.15, eff. Sept. 1, 1995.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 2.014, eff. September 1, 2005.



Section  402.070.  Annual Report.

(a) The commission shall prepare annually a complete and detailed written report accounting for all funds received and disbursed by the commission during the preceding fiscal year.

(b)  The report required under this section must meet the reporting requirements applicable to financial reporting that are provided by the General Appropriations Act.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 980, Sec. 1.16, eff. Sept. 1, 1995.



Section  402.071.  Representatives.

(a) The commissioner shall establish qualifications for a representative and shall adopt rules establishing procedures for authorization of representatives.

(b)  A representative may receive a fee for providing representation under this subtitle only if the representative is:

(1)  an adjuster representing an insurance carrier; or

(2)  licensed to practice law.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 2.015, eff. September 1, 2005.



Section 402.072.  Sanctions.

(a) The division may impose sanctions against any person regulated by the division under this subtitle.

(b)  Only the commissioner may impose:

(1)  a sanction that deprives a person of the right to practice before the division or of the right to receive remuneration under this subtitle for a period exceeding 30 days; or

(2)  another sanction suspending for more than 30 days or revoking a license, certification, or permit required for practice in the field of workers' compensation.

(c)  A sanction imposed by the division is binding pending appeal.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 2.016, eff. September 1, 2005.



Section 402.073.  Cooperation With State Office Of Administrative Hearings.

(a) The commissioner 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.

(b)  In a case in which a hearing is conducted by the State Office of Administrative Hearings under Section 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)  In a case in which a hearing is conducted in conjunction with Section 402.072, 407.046, or 408.023, and in other cases under this subtitle that are not subject to Subsection (b), the administrative law judge who conducts the hearing for the State Office of Administrative Hearings shall propose a decision to the commissioner for final consideration and decision by the commissioner.

Added by Acts 1995, 74th Leg., ch. 980, Sec. 1.17, eff. Sept. 1, 1995. Amended by Acts 1999, 76th Leg., ch. 955, Sec. 1, eff. Sept. 1, 1999.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 2.017, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch. 1007, Sec. 3, eff. September 1, 2007.



Section 402.074.  Strategic Management; Evaluation.

The commissioner shall implement a strategic management plan that:

(1)  requires the division to evaluate and analyze the effectiveness of the division in implementing:

(A)  the statutory goals adopted under Section 402.021, particularly goals established to encourage the safe and timely return of injured employees to productive work roles; and

(B)  the other standards and requirements adopted under this code, the Insurance Code, and other applicable laws of this state; and

(2)  modifies the organizational structure and programs of the division as necessary to address shortfalls in the performance of the workers' compensation system of this state.

Added by Acts 2005, 79th Leg., Ch. 265, Sec. 2.018, eff. September 1, 2005.



Section 402.075.  Incentives; Performance-based Oversight.

(a) The commissioner by rule shall adopt requirements that:

(1)  provide incentives for overall compliance in the workers' compensation system of this state; and

(2)  emphasize performance-based oversight linked to regulatory outcomes.

(b)  The commissioner shall develop key regulatory goals to be used in assessing the performance of insurance carriers and health care providers.  The goals adopted under this subsection must align with the general regulatory goals of the division 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)  At least biennially, the division shall assess the performance of insurance carriers and health care providers in meeting the key regulatory goals.  The division shall examine overall compliance records and dispute resolution and complaint resolution practices to identify insurance carriers and health care providers who adversely impact the workers' compensation system and who may require enhanced regulatory oversight.  The division shall conduct the assessment through analysis of data maintained by the division and through self-reporting by insurance carriers and health care providers.

(d)  Based on the performance assessment, the division shall develop regulatory tiers that distinguish among insurance carriers and health care providers who are poor performers, who generally are average performers, and who are consistently high performers. The division shall focus its regulatory oversight on insurance carriers and health care providers identified as poor performers.

(e)  The 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)  The division shall:

(1)  ensure that high-performing entities are publicly recognized; and

(2)  allow those entities to use that designation as a marketing tool.

(g)  In conjunction with the division's accident prevention services under Subchapter E, Chapter 411, the division shall conduct audits of accident prevention services offered by insurance carriers based on the comprehensive risk assessment. The division shall periodically review those services, but may provide incentives for less regulation of carriers based on performance.

Added by Acts 2005, 79th Leg., Ch. 265, Sec. 2.018, eff. September 1, 2005.



Section 402.076.  General Duties; Funding. (

a) The division shall perform the workforce education and safety functions of the workers' compensation system of this state.  

(b)  The operations of the division under this section are funded through the maintenance tax assessed under Section 403.002.

Added by Acts 2005, 79th Leg., Ch. 265, Sec. 2.018, eff. September 1, 2005.



Section 402.077.  Educational Programs.

(a) The division shall provide education on best practices for return-to-work programs and workplace safety.

(b)  The division shall evaluate and develop the most efficient, cost-effective procedures for implementing this section.

Added by Acts 2005, 79th Leg., Ch. 265, Sec. 2.018, eff. September 1, 2005.



Section 402.078.  Regional Offices.

The department shall operate regional offices throughout this state as necessary to implement the duties of the division and the department under this subtitle.

Added by Acts 2005, 79th Leg., Ch. 265, Sec. 2.018, eff. September 1, 2005.



Subchapter E. Records And Employee Information

Section 402.081.  Division Records.

(a) The commissioner is the custodian of the division's records and shall perform the duties of a custodian required by law, including providing copies and the certification of records.

(b)  The division shall comply with records retention schedules as provided by Chapter 441.185, Government Code.

(c)  A record maintained by the division 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)  The division 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 division may charge only the cost of making a copy of the page from which confidential information must be redacted.  The fee for access to information under Chapter 552, Government Code, shall be in accord with the rules of the attorney general that prescribe the method for computing the charge for copies under that chapter.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 1270, Sec. 1 eff. June 20, 1997.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 2.019, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch. 329, Sec. 13, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch. 716, Sec. 11, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch. 921, Sec. 10.003, eff. September 1, 2007.



Section 402.082.  Injury Information Maintained By Division.

(a) The division shall maintain information on every compensable injury as to the:

(1)  race, ethnicity, and sex of the claimant;

(2)  classification of the injury;

(3)  identification of whether the claimant is receiving medical care through a workers' compensation health care network certified under Chapter 1305, Insurance Code;

(4)  amount of wages earned by the claimant before the injury; and

(5)  amount of compensation received by the claimant.

(b)  The division shall provide information maintained under Subsection (a) to the office of injured employee counsel.  The confidentiality requirements imposed under Section 402.083 apply to injury information maintained by the division.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 2.020, eff. September 1, 2005.



Section  402.083.  Confidentiality Of Injury Information.

(a) Information in or derived from a claim file regarding an employee is confidential and may not be disclosed by the division except as provided by this subtitle or other law.

(b)  Information concerning an employee who has been finally adjudicated of wrongfully obtaining payment under Section 415.008 is not confidential.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 9.42, 14.49, eff. Sept. 1, 1995.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 2.021, eff. September 1, 2005.



Section  402.084.  Record Check; Release Of Information.

(a) The division 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)  the claim is:

(A)  open or pending before the division;

(B)  on appeal to a court of competent jurisdiction; or

(C)  the 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)  the requesting party requests the release on a form prescribed by the division for this purpose and provides all required information.

(b)  Information on a claim may be released as provided by Subsection (a) to:

(1)  the employee or the employee's legal beneficiary;

(2)  the employee's or the legal beneficiary's representative;

(3)  the employer at the time of injury;

(4)  the insurance carrier;

(5)  the Texas Certified Self-Insurer Guaranty Association established under Subchapter G, Chapter 407, if that association has assumed the obligations of an impaired employer;

(6)  the Texas Property and Casualty Insurance Guaranty Association, if that association has assumed the obligations of an impaired insurance company;

(7)  a third-party litigant in a lawsuit in which the cause of action arises from the incident that gave rise to the injury; or

(8)  with regard to information described by Subsection (c-3), an insurance carrier that has adopted an antifraud plan under Subchapter B, Chapter 704, Insurance Code, or the authorized representative of such an insurance carrier.

(c)  The requirements of Subsection (a)(1) do not apply to a request from a third-party litigant described by Subsection (b)(7).

(c-1)  For purposes of this section only, "insurance carrier" means:

(1)  a certified self-insurer; or

(2)  an entity authorized under the Insurance Code or another insurance law of this state that provides health insurance coverage or health benefits in this state, including:

(A)  an insurance company, including an insurance company that holds a certificate of authority issued by the commissioner of insurance to engage in the business of workers' compensation insurance in this state;

(B)  a group hospital service corporation under Chapter 842, Insurance Code;

(C)  a health maintenance organization under Chapter 843, Insurance Code;

(D)  a stipulated premium company under Chapter 884, Insurance Code;

(E)  a fully self-insured plan, as described by the Employee Retirement Income Security Act of 1974 (29 U.S.C. Section 1001 et seq.);

(F)  a governmental plan, as defined by Section 3(32), Employee Retirement Income Security Act of 1974 (29 U.S.C. Section 1002(32));

(G)  an employee welfare benefit plan, as defined by Section 3(1), Employee Retirement Income Security Act of 1974 (29 U.S.C. Section 1002(1)); and

(H)  an insurer authorized by the Texas Department of Insurance to offer disability insurance in this state.

(c-2)  An insurance carrier is not required to demonstrate that a subclaim exists in order to obtain information under Subsection (b)(8).

(c-3)  An insurance carrier described by Subsection (b)(8) or an authorized representative of the insurance carrier may submit to the commission on a monthly basis a written request for claims information.  The request must contain a list of the names of persons about whom claims information is requested.  The insurance carrier must certify in the carrier's request that each person listed is, or has been, an insured under the carrier's insurance program.  The commission shall examine the commission's records to identify all claims related to the listed persons.  If a claims record exists for a listed person, the commission promptly shall provide information on each workers' compensation claim filed by that person to the carrier or the carrier's representative in an electronic format.  The information provided under this subsection must include, if available:

(1)  the full name of the workers' compensation claimant;

(2)  the social security number of the workers' compensation claimant;

(3)  the date of birth of the workers' compensation claimant;

(4)  the name of the employer of the workers' compensation claimant;

(5)  the date of the injury;

(6)  a description of the type of injury or the body part affected, including the workers' compensation claimant's description of how the injury occurred;

(7)  the name of the treating doctor;

(8)  the name, address, and claim number of the insurance carrier handling the claim;

(9)  the name of the insurance adjustor handling the claim; and

(10)  the identifying number assigned to the claim by the commission and the commission field office handling the claim.

(c-4)  A potential subclaim identified by an insurance carrier described by Subsection (b)(8) or an authorized representative of the insurance carrier may form the basis for the identification and filing of a subclaim against an insurance carrier under this subtitle.

(c-5)  Information received under this section by an insurance carrier described by Subsection (b)(8) or an authorized representative of the insurance carrier remains subject to confidentiality requirements of this subtitle while in the possession of the insurance carrier or representative.  However, the following laws do not prohibit the commission from disclosing full information regarding a claim as necessary to determine if a valid subclaim exists:

(1)  Chapter 552, Government Code;

(2)  Chapter 159, Occupations Code; or

(3)  any other analogous law restricting disclosure of health care information.

(c-6)  The commission may not redact claims records produced in an electronic data format under a request made under this section.

(c-7)  An insurance carrier and its authorized representative may request full claims data under Subsection (b)(8), and the records shall be produced once each month.  For purposes of this subsection, "full claims data" means an electronic download or tape in an electronic data format of the information listed in Subsection (c-3) on all cases relating to the workers' compensation claimants listed as insureds of the requesting insurance carrier.

(d)   The commissioner by rule may establish a reasonable fee, not to exceed five cents for each claimant listed in an information request, for all information requested by an insurance carrier described by Subsection (b)(8) or an authorized representative of the insurance carrier in an electronic data format. The commissioner shall adopt rules under Section 401.024(d) to establish:

(1)  reasonable security parameters for all transfers of information requested under this section in electronic data format; and

(2)  requirements regarding the maintenance of electronic data in the possession of an insurance carrier described by Subsection (b)(8) or an authorized representative of the insurance carrier.

(e)  The insurance carrier or the carrier's authorized representative must execute a written agreement with the commission before submitting the carrier's first request under Subsection (c-3).  The agreement must contain a provision by which the carrier and the representative agree to comply with the commission's rules governing security parameters applicable to the transfer of information under Subsection (d)(1) and the maintenance of electronic data under Subsection (d)(2).

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 2001, 77th Leg., ch. 1033, Sec. 5, eff. Sept. 1, 2001.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 2.022, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch. 728, Sec. 11.132, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch. 1190, Sec. 1, eff. June 18, 2005.



Section 402.085.  Exceptions To Confidentiality.

(a) The division shall release information on a claim to:

(1)  the Texas Department of Insurance for any statutory or regulatory purpose, including a research purpose under Chapter 405;

(2)  a legislative committee for legislative purposes;

(3)  a state or federal elected official requested in writing to provide assistance by a constituent who qualifies to obtain injury information under Section 402.084(b), if the request for assistance is provided to the division;

(4)   the 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)  establishing, modifying, or enforcing a child support or medical support obligation; or

(B)  locating an absent parent; or

(5)  the office of injured employee counsel for any statutory or regulatory purpose that relates to a duty of that office.

(b)  The division may release information on a claim to a governmental agency, political subdivision, or regulatory body to use to:

(1)  investigate an allegation of a criminal offense or licensing or regulatory violation;

(2)  provide:

(A)  unemployment compensation benefits;

(B)  crime victims compensation benefits;

(C)  vocational rehabilitation services; or

(D)  health care benefits;

(3)  investigate occupational safety or health violations;

(4)  verify income on an application for benefits under an income-based state or federal assistance program; or

(5)  assess financial resources in an action, including an administrative action, to:

(A)  establish, modify, or enforce a child support or medical support obligation;

(B)  establish paternity;

(C)  locate an absent parent; or

(D)  cooperate 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 Code.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 9.43(a), eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 1426, Sec. 5, eff. Sept. 1, 1999.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 2.023, eff. September 1, 2005.



Section  402.086.  Transfer 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)  This 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.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.



Section  402.087.  Information 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 on the prior injuries of an applicant for employment if the employer obtains written authorization from the applicant before making the request.

(b)  The employer must make the request 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.

(c)  The request must include the applicant's name, address, and social security number.

(d)  If the request 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.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.



Section  402.088.  Report Of Prior Injury.

(a) On receipt of a valid request made under and complying with Section 402.087, the division shall review its records.

(b)  If the division finds that the applicant has made two or more general injury claims in the preceding five years, the division shall release the date and description of each injury to the employer.

(c)  The information may be released in writing or by telephone.

(d)  If the employer requests information on three or more applicants at the same time, the division may refuse to release information until it receives the written authorization from each applicant.

(e)  In this section, "general injury" means an injury other than an injury limited to one or more of the following:

(1)  an injury to a digit, limb, or member;

(2)  an inguinal hernia; or

(3)  vision or hearing loss.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 2.024, eff. September 1, 2005.



Section 402.089.  Failure To File Authorization.

An employer who receives information by telephone from the division under Section 402.088 and who fails to file the necessary authorization in accordance with Section 402.087 commits an administrative violation.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 2.025, eff. September 1, 2005.



Section 402.090.  Statistical Information.

The division, the Texas Department of Insurance, or any other governmental agency may prepare and release statistical information if the identity of an employee is not explicitly or implicitly disclosed.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 2.026, eff. September 1, 2005.



Section  402.091.  Failure 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 division.

(b)  A 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)  An offense under this section is a Class A misdemeanor.

(d)  An offense under this section may be prosecuted in a court in the county where the information was unlawfully received, published, disclosed, or distributed.

(e)  A district court in Travis County has jurisdiction to enjoin the use, publication, disclosure, or distribution of confidential information under this section.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 980, Sec. 1.18, eff. Sept. 1, 1995.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 2.027, eff. September 1, 2005.



Section 402.092.  Investigation Files Confidential; Disclosure Of Certain Information.

(a) In this section, "investigation file" means any information compiled or maintained by the division with respect to a division investigation authorized under this subtitle or other workers' compensation law.  The term does not include information or material acquired by the division that is relevant to an investigation by the insurance fraud unit and subject to Section 701.151, Insurance Code.

(b)  Information maintained in the investigation files of the division is confidential and may not be disclosed except:

(1)  in a criminal proceeding;

(2)  in a hearing conducted by the division;

(3)  on a judicial determination of good cause;

(4)  to 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)  to 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)  Division investigation files are not open records for purposes of Chapter 552, Government Code.

(d)  Information 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.

(e)  The division, upon request, shall disclose the identity of a complainant under this section if the division finds:

(1)  the complaint was groundless or made in bad faith;

(2)  the complaint lacks any basis in fact or evidence;

(3)  the complaint is frivolous; or

(4)  the complaint is done specifically for competitive or economic advantage.

(f)  Upon completion of an investigation in which the division determines a complaint is described by Subsection (e), the division shall notify the person who was the subject of the complaint of its finding and the identity of the complainant.

Added by Acts 1995, 74th Leg., ch. 980, Sec. 1.19, eff. Sept. 1, 1995.

Amended by:

Acts 2005, 79th Leg., Ch. 265, Sec. 2.028, eff. September 1, 2005.



Subchapter F. Cooperation With Office Of Injured Employee Counsel

Section 402.251.  Cooperation; Facilities.

(a) The department and the division shall cooperate with the office of injured employee counsel in providing services to claimants under this subtitle.

(b)  The department shall provide facilities to the office of injured employee counsel in each regional office operated to administer the duties of the division under this subtitle.

Added by Acts 2005, 79th Leg., Ch. 265, Sec. 2.029, eff. September 1, 2005.


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