Texas Register April 21, 2023 Volume: 48 Number: 16

Texas Register Table of Contents

1 Governor
- - 1.0.1 Appointments Re:
    - 1.0.1.1 The Governor appointed three individuals to the Podiatric Medical Examiners Advisory Board.
    - 1.0.1.2 The Governor appointed one individual to the Family Practice Residency Advisory Committee.
2 Texas Department of Insurance, Division of Worker’s Compensation
- - 2.0.1 Adopted Rules Re:
3 Texas Health and Human Services Commission
- - 3.0.1 In Addition Re:
    - 3.0.1.1 Notice of Public Hearing on Proposed Rule Amendments for the Hospital-Specific Limit Methodology, Disproportionate Share Hospital, and Uncompensated Charity Care Programs.
    - 3.0.1.2 Notice of Public Hearing on Proposed Updates to Medicaid Payment Rates

Governor

Appointments Re:

The Governor appointed three individuals to the Podiatric Medical Examiners Advisory Board.

Appointed to the Podiatric Medical Examiners Advisory Board for a term to expire February 1, 2029:

Beil “Cory” Brown, D.P.M. of Abilene, Texas
Maria “Yvette” Hernandez of Rio Grande City, Texas
Travis A. Motley, D.P.M. of Colleyville, Texas

The Governor appointed one individual to the Family Practice Residency Advisory Committee.

Appointed to the Family Practice Residency Advisory Committee for a term to expire August 29, 2025, Alicia M. Cantrell of Houston, Texas.

Texas Department of Insurance, Division of Worker’s Compensation

Adopted Rules Re:

Amending 28 TAC §§127.1, 127.5, 127.10, 127.15, 127.20, 127.25, to update designated doctor examinations and scheduling.

CHAPTER 127. DESIGNATED DOCTOR PROCEDURES AND REQUIREMENTS
SUBCHAPTER A. DESIGNATED DOCTOR SCHEDULING AND EXAMINATIONS
28 TAC §§127.1, 127.5, 127.10, 127.15, 127.20, 127.25

OVERVIEW

The Texas Department of Insurance, Division of Workers’ Compensation (DWC) adopts amendments to 28 TAC Chapter 127, Subchapter A §§127.1, 127.5, 127.10, 127.15, 127.20, and 127.25; the title of Subchapter B; Subchapter B §§127.100, 127.120, 127.130, and 127.140; and Subchapter C §§127.200, 127.210, and 127.220; and the repeal of 28 TAC §127.110. The amended sections concern how the designated doctor program operates. The repealed section, §127.110, has been incorporated into amended §127.100. The amendments and repeal implement Texas Labor Code §§408.0041, 408.023, and 408.1225, which direct DWC on the operation of the designated doctor program.

The amendments to Subchapter A §§127.1, 127.5, 127.10, 127.15, 127.20, and 127.25; the title of Subchapter B; Subchapter B §§127.100, 127.120, and 127.140; Subchapter C §§127.200, 127.210, and 127.220; and the repeal of §127.110 are adopted without changes to the proposed text published in the December 23, 2022, issue of the Texas Register (47 TexReg 8495), with minor corrections to §§127.5, 127.20, and 127.200 published in the January 13, 2023, issue of the Texas Register (48 TexReg 169). The rules will not be republished.

The amendments to §127.130 are adopted with changes to the proposed text published in the December 23, 2022, issue of the Texas Register (47 TexReg 8495). In response to a public comment, DWC revised §127.130(f) by adding a reference to the designated doctor’s duty in §127.200(a)(12) to notify DWC if continuing to participate on a claim would exceed their scope of practice, to note that DWC’s assignment of a designated doctor examination does not alter the scope of practice authorized by the designated doctor’s professional license, and to make editorial adjustments for readability. The rule will be republished.

BACKGROUND AND JUSTIFICATION

The amendments are necessary to maintain and increase participation in the designated doctor program and to allow better access to certain types of specialized examinations. DWC evaluated the program and identified several possible areas of improvement, including changes to address training and testing requirements; designated doctor qualifications, certification, and renewals; multiple certifications; and administrative burdens. DWC’s evaluation process included multiple stakeholder meetings and two informal draft proposals to gather information and comments on possible changes to the text before writing and posting the formal proposal. DWC considered the comments and information received through the lengthy informal process, as well as the comments received in response to the formal proposal, when drafting the amendments.

The amendments move the substance of the repealed section into another section to reduce duplication and streamline and clarify the process involved, make changes to revise training and testing requirements, reduce administrative burdens, and update designated doctor qualifications to enable better access to traumatic brain injury and multiple fracture examinations for injured employees.

The amendments add new subsection headers throughout the chapter that enable readers to identify and navigate subsections more easily. They remove unnecessary and obsolete section-specific applicability and effective dates to avoid confusion and streamline rule language. They make editorial changes that clarify the rule language and organization by removing unnecessary words, simplifying sentence structure, adding references, and breaking long paragraphs into shorter paragraphs and lists. The amendments also correct typographic, grammar, and punctuation errors in the current rule text; make changes to update obsolete references; and make updates for plain language and agency style. Some examples of these amendments include changing “shall” to “must,” “facsimile” to “fax,” and adding “insurance” before “carrier.”

SECTION-BY-SECTION SUMMARY

Section 127.1 concerns requesting designated doctor examinations. The amendments remove language related to the multiple certification requirement to harmonize with amendments to the multiple certification process in §127.10. The amendments also update and simplify DWC’s website and physical addresses, and clarify DWC’s requirements for a case-specific good cause determination for scheduling an examination within 60 days. The amendments remove the provision that formerly required the requester to list all compensable injuries, because the designated doctor will be determining what injuries are compensable when performing an extent-of-injury examination, rather than relying on information from the requester.
Section 127.5 concerns scheduling designated doctor appointments. The amendments relocate existing rule language about designated doctor certification from §127.130 for better placement in the chapter.
Section 127.10 concerns general procedures for designated doctor examinations. The amendments add a reference to Labor Code §408.0041(c), clarify that testing and referral doctors for designated doctor examinations do not have to be in the same workers’ compensation network for health care as the injured employee, and clarify that the insurance carrier must pay benefits on the condition to which the designated doctor determines the compensable injury extends.
The amendments also divide subsection (d) into two subsections, remove the requirement for a designated doctor to provide multiple certifications, and add language that specifies that, for examinations conducted under subsection (d) on or after June 5, 2023, a designated doctor may provide multiple certifications of maximum medical improvement (MMI) and impairment ratings only when DWC directs.
DWC analyzed data about designated doctor examinations, benefit review conferences, and contested case hearings involving the issues of MMI, impairment rating, and extent of injury in 2019, and determined that only about 20% of designated doctor reports with multiple certifications were involved in DWC dispute resolution processes. In addition, of the 20% of claims where the parties disputed MMI, impairment rating, and extent of injury in a DWC contested case hearing, DWC administrative law judges requested new certifications from designated doctors about 50% of the time, since the multiple certifications the designated doctor previously produced did not represent the compensable injury determined during the proceeding. DWC concluded that, where multiple certifications are appropriate, DWC administrative law judges are already directing designated doctors to provide them. As a result, the amendment that specifies that designated doctors may provide multiple certifications of MMI and impairment ratings only when directed by DWC will reduce the number of unnecessary multiple certifications that consume time and resources, while continuing to allow for necessary multiple certifications without causing unnecessary delay.
Section 127.15 concerns undue influence on a designated doctor. The amendments make editorial changes and remove obsolete and unnecessary language.
Section 127.20 concerns requesting a letter of clarification regarding designated doctor reports. The amendments make editorial changes and remove obsolete and unnecessary language.
Section 127.25 concerns failure to attend a designated doctor examination. The amendments clarify that the requirement applies to a designated doctor examination or a referral examination under §127.10(c).

Amending 28 TAC §§127.100, 127.120, 127.130, 127.140, to clarify designated doctor certifications, renewals, and qualifications.

CHAPTER 127. DESIGNATED DOCTOR PROCEDURES AND REQUIREMENTS
SUBCHAPTER B. DESIGNATED DOCTOR CERTIFICATION, RENEWAL, AND QUALIFICATIONS
28 TAC §§127.100, 127.120, 127.130, 127.140

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

Subchapter B concerns designated doctor certification, renewal, and qualifications. The amendments change the title of the subchapter by changing “recertification,” which referred to the section being repealed, to “renewal” to describe the procedure more accurately.
Section 127.100 concerns designated doctor certification. The amendments merge the language in §127.110, which is being repealed, with §127.100 to eliminate redundancy, reduce confusion and inconsistencies, update terminology, and clarify the process for certification and renewal.
The amendments specify that the requirements for certification and renewal are now combined into §127.100, and modify the requirement for certification testing by requiring that a designated doctor complete certification on or after May 13, 2013. Designated doctors that pass or have previously passed the certification test on or after May 13, 2013, are no longer required to retest every two years when they renew their certification. However, the amendments also add §127.100(d), which allows DWC to require testing of all designated doctors on renewal of their certification if needed. Examples of when testing might be required include, but are not limited to, individual need for retesting based on substandard performance, changes in the duties of a designated doctor, updates to the guidelines, and legislative changes.
The amendments clarify that the disclosure questions on the certification application require detailed explanations, add suspension and revocation to the certification actions that require DWC to send the designated doctor written notice, and relocate existing rule requirements for certification effective and expiration dates.
The amendments add §127.100(g), which relocates existing rule requirements from §127.110. Subsection (g) explains that a designated doctor seeking to renew their certification immediately after their current term expires, without interruption, must apply for certification no later than 45 days before the end of the term. Subsection (g) also explains that DWC will not assign examinations to the designated doctor during the last 45 days of an expiring term if it does not receive an application 45 days before the end of the term, but that designated doctors may still provide services on claims DWC had previously assigned to them during this 45-day period.
The amendments add §127.100(h), which allows DWC to approve a designated doctor certification but restrict some or all appointments until the designated doctor completes additional training, testing, or other requirements. This is necessary for DWC to ensure that designated doctors are adequately trained and able to perform their duties as the Labor Code and DWC rules and guidelines require. Subsection (h) also provides a way for the designated doctor to dispute the restriction.
The amendments reletter existing subsection (f) as subsection (i). They clarify the range of possible actions that, under existing statutes, the commissioner may take on a designated doctor’s certification to ensure the quality of the designated doctor’s decisions and reviews. The amendments also add failure to comply with the requirements of §180.24 (relating to Financial Disclosure) as a ground for action under the subsection.
The amendments add §127.100(k), which relocates existing rule requirements for certification renewal from §127.110, to ensure consistency in the restructured process. The amendments change “informal hearing” to “informal conference” to clarify the informal nature of the discussion about a denial, suspension, or revocation of a designated doctor certification or application for certification or renewal. Subsection (k) details the procedure for designated doctors to request an informal conference.
The amendments remove existing §127.100(h) because this subsection was added in 2012 when designated doctors were transitioning to the then-new rules for examination qualification criteria. Only one doctor used that process during that transition, and there is no longer a need for it.
The amendments remove existing §127.100(i) because DWC transitioned all designated doctor certification terms to a two-year cycle in 2012. There is no longer a need for this provision in the rules.
Section 127.120 concerns exception to certification as a designated doctor for out-of-state doctors. The amendments make editorial changes and remove obsolete and unnecessary language.
Section 127.130 concerns qualification standards for designated doctor examinations. The amendments specify an applicability date for the section for designated doctor examination assignments made on or after June 5, 2023, to clarify which standards apply to a given assignment.
The amendments to §127.130(b)(9)(A) also update the qualification requirements for physicians examining traumatic brain injuries, including concussion and post-concussion syndrome, by adding to the list of qualifying American Board of Medical Specialties and American Osteopathic Association Bureau of Osteopathic Specialists board certifications. These amendments are necessary to ensure that injured employees with traumatic brain injuries can continue to access designated doctor examinations.

Repealing 28 TAC §127.110, because certification and renewal requirements have been combined in amended §127.100.

CHAPTER 127. DESIGNATED DOCTOR PROCEDURES AND REQUIREMENTS
SUBCHAPTER B. DESIGNATED DOCTOR CERTIFICATION, RECERTIFICATION, AND QUALIFICATIONS
28 TAC §127.110

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

Section 127.110 is repealed. Certification and renewal requirements are now combined in amended §127.100 to reduce redundancy and inconsistency, and to make the requirements easier to understand and follow.

Amending 28 TAC §§127.200, 127.210, 127.220, to reorganize the rules concerning the designated doctor’s scope of practice.

CHAPTER 127. DESIGNATED DOCTOR PROCEDURES AND REQUIREMENTS
SUBCHAPTER C. DESIGNATED DOCTOR DUTIES AND RESPONSIBILITIES
28 TAC §§127.200, 127.210, 127.220

OVERVIEW

BACKGROUND AND JUSTIFICATION

Amending 28 TAC § 180.23, which removes references to recertification training requirements that are obsolete.

CHAPTER 180. MONITORING AND ENFORCEMENT
SUBCHAPTER B. MEDICAL BENEFIT REGULATION
28 TAC §180.23

OVERVIEW

The Texas Department of Insurance, Division of Workers’ Compensation (DWC) adopts amendments to 28 Texas Administrative Code (TAC) §180.23, concerning division-required training for doctors. Section 180.23 implements Labor Code §§408.023 and 408.1225, concerning doctor certification and training. DWC adopts the amendments without changes to the proposed text published in the December 23, 2022, issue of the Texas Register (47 TexReg 8516). The rule will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments make editorial changes, updates for plain language and agency style, and updates to conform the rule to related rules in 28 TAC Chapter 127. The amendments also make the rule easier to navigate by adding subsection headers. The purpose of the amendments is to attract and retain doctors in the maximum medical improvement (MMI) and impairment rating (IR) certification program by revising testing frequency, which reduces confusion and administrative burdens.

SECTION-BY-SECTION SUMMARY

Amending §180.23 is necessary to remove references to recertification training requirements under 28 TAC Chapter 127 because DWC’s recent amendments to Chapter 127 include a combined process for certification and renewal under §127.100. As a result, any references to recertification under §127.110 are obsolete. The amendments to §180.23 also align the testing requirements for MMI and IR certifications with the updated procedure in Chapter 127.

Texas Health and Human Services Commission

In Addition Re:

Notice of Public Hearing on Proposed Rule Amendments for the Hospital-Specific Limit Methodology, Disproportionate Share Hospital, and Uncompensated Charity Care Programs.

OVERVIEW

The Texas Health and Human Services Commission (HHSC) will conduct a public hearing on April 25, 2023, at 1:00 p.m., to receive public comments on proposed rule amendments to 1 Texas Administrative Code (1 TAC) Section 355.8065, concerning Disproportionate Share Hospital Reimbursement Methodology, 1 TAC Section 355.8066, concerning Hospital-Specific Limit Methodology, and 1 TAC Section 355.8212, concerning Waiver Payments to Hospitals for Uncompensated Charity Care.

The rule amendments to 1 TAC Section 355.8065, concerning Disproportionate Share Hospital Reimbursement Methodology, 1 TAC Section 355.8066, concerning Hospital-Specific Limit Methodology, and 1 TAC Section 355.8212, concerning Waiver Payments to Hospitals for Uncompensated Charity Care, are proposed to be effective June 2023.

Notice of Public Hearing on Proposed Updates to Medicaid Payment Rates

OVERVIEW

The Texas Health and Human Services Commission (HHSC) will conduct a public hearing on May 19, 2023, at 9:00 a.m., to receive public comments on proposed updates to Medicaid payment rates resulting from Calendar Fee Reviews, Medical Policy Reviews, and Healthcare Common Procedure Coding System (HCPCS) Reviews.