2021 Regulatory Activities-May 2021 through April 2022

DWC on the move  
In April 2021, DWC announced that the agency would be moving its offices to the Capitol Complex, 1601 Congress Ave., Austin, Texas in the summer of 2022. DWC also announced its new mailing address and asked that system participants begin using the address immediately:  

Texas Department of Insurance, Division of Workers’ Compensation  
P.O. Box 12050  
Austin, TX 78711  

DWC Updates Forms & Correspondence Ahead of Summer 2022 Move 
On April 19, 2021, DWC issued Commissioner’s Bulletin #B-0012-21 letting system participants know that DWC headquarters will be moving to the Capitol Complex in Austin in the summer of 2022. The move requires updates to correspondence (such as hearing notices, official action orders, and complaints and investigation letters) to use new letterhead and mailing address. In this process DWC is also modernizing for plain language, font size, and other changes.  

DWC Adopts Amendments to 28 TAC §141.1 
DWC adopted amendments to 28 TAC §141.1, relating to requesting and setting a Benefit Review Conference (BRC). HB 1742, which passed during the 87th legislative session provided for BRCs to be conducted via videoconference or in person if a requesting party shows good cause. The adopted amendments conform to these changes in §410.005, Labor Code. This was effective Dec. 9, 2021.  

DWC Adopts Amendments to 28 TAC 102, §§102.4, 102.5, and 102.8; Chapter 124, §124.2; and new Subchapter B in Chapter 124 
DWC adopted amendments to 28 TAC Chapter 102, §§102.4, 102.5, and 102.8; Chapter 124, §124.2; and new Subchapter B in Chapter 124 to update and enhance its data collection methods. The purpose of the adoption is to update the outdated workers’ compensation claim EDI reporting standard from the currently required International Association of Industrial Accident Boards and Commissions (IAIABC) Release 1.0 to IAIABC Release 3.1.4. Provisions related to the implementation of EDI Releases 3.1.4 reporting are effective July 26, 2023.  

*ICT submitted comments on the informal draft of these amendments in December 2020. In the comments ICT expressed support of IAIABC standard of implementation one year post publishing of the final EDI tables, as well as encouragement to avoid overlap with other jurisdictions implementing dates for claims EDI release 3.1. The effective date of implementation is consistent with ICT’s comments.  

DWC Readopted All Sections in 28 TAC Chapters 160, 165, 166, and 180 
DWC has readopted all sections in 28 TAC Chapters 160, 165, 166, and 180. This is part of the statutorily required rule review that a state agency must do every four years. There were no comments or feedback from ICT members regarding the adoption.  

TDI Adopts New 28 TAC §§1.1301 and 1.1302 
In May of 2021, TDI adopted new 28 TAC §1.1301, relating to electronic submissions made to the TDI, and new §1.1302, relating to electronic communications from TDI. The rule requires individuals, agencies, and companies regulated by TDI to designate an email address for official communications from TDI. The rule also allows electronic submissions to TDI in most cases where a paper method was previously required. The rules are effective Jan. 1, 2022.  

*ICT and AFACT filed comments regarding the proposed rules expressing general support but suggesting a stakeholder meeting before implementation. While TDI did not agree that a stakeholder meeting was necessary, they did change the text of §1.1302 making the requirement that all regulated persons provide to TD.I an email address designated for receipt for official communications applicable beginning Jan. 1, 2022.  

ICT Comments on DWC Rule Review 
In October 2021, the DWC requested input on rule amendments for consideration during the interim. The ICT Workers’ Compensation committee met and, as a result, ICT submitted for consideration proposals for the following rules (Still pending as of May 10, 2022):  

  • §133.309- Repeal because the rule conflicts with relevant governing statutes and is no longer binding. 
  • §133.10(f)(1)(J)- Amend to include a ‘DN’ qualifier for all referral physicians listed in Box 17 regardless of role. 
  • §127.10(h)- Clarify the language to address ambiguity over what benefits are actually owed on a DD report. 
  • §130.12(b)(1)- Amend to require the request of a BRC to dispute since this is what is already in practice. 

NCCI Adoptions 

  • TDI adopted NCCI filing Item 01-TX-2021-Revisions to the Retrospective Rating Plan Manual Rule 3-A in Texas. It revises the Texas exception to Rule 3-A in the Retrospective Rating Plan Manual to end the requirement to submit a copy of the Texas Notice of Election of Retrospective Rating Plan to TDI. Instead, carriers will be required to maintain a copy of this notice and make it available to TDI upon request. NCCI proposed that the changes in Item 01-TX-2021 would apply to new and renewal policies that are effective on or after Oct. 1, 2021.  
  • TDI adopted NCCI filing Item U-1402-Injury Description Codes for Adverse Reaction to Vaccination for COVID-19 and Other Diseases. Item U-1402 amends NCCI’s Statistical Plan to identify claims for adverse reactions to vaccinations for COVID-19 and other diseases. The changes would apply to claims with an accident date of Dec. 1, 2020, and later. 
  • NCCI filed Item B-1444-NCCI’s Basic Manual for Workers Compensation and Employers Liability Insurance. This is a complete modernization of the Basic Manual, and the filing is meant to be a one-time “complete manual” filing to help make regulatory review and approval, and subsequent customer use, easier in the future. The new edition, effective Nov. 1, 2021, improves format and structure; updates rules, if applicable to conform to statutory language; and provides clarity where necessary. 
  • TDI adopted NCCI filing Item 01-TX-2020-Texas Negotiated Deductible, which clarifies the Type of Deductible Plan Code 13-Negotiated Deductible in the NCCI Statistical Plan continues to apply in Texas. The change applies to new and renewal policies effective on or after July 1, 2018. 
  • TDI adopted NCCI filing Item 02-TX-2021 (Rule and Form) Rules and an Endorsement Related to the Catastrophe (Other Than Certified Acts of Terrorism) Provision in Texas. The filing establishes the Catastrophe (other than Certified Acts of Terrorism) Provision in Texas, which includes a Basic Manual rule, endorsement, and statistical code, consistent with other NCCI states. It also proposes to implement, in Texas, NCCI’s actuarial catastrophe methodology, which would treat a single event or peril that results in aggregate workers’ comp losses in excess of $50 million per occurrence as a catastrophe and thus exclude reported data from such an event from ratemaking. Finally, it establishes an entry in the Texas Miscellaneous Values to state that if a carrier plans to apply the Catastrophe premium, it must file its Catastrophe rate with the TDI. NCCI proposes that these changes apply to policies effective on and after July 1, 2022.  

FY 2022 Research Agenda for the Workers’ Compensation Research and Evaluation (REG) Group

  • Complete and publish the 16th Edition of the Workers’ Compensation Health Care Network Report Card required under Insurance Code §1305.502(a)-(d) and Labor Code §405.0025(b). 
  • Update the 2020 biennial study to estimate employer participation in the Texas workers’ compensation system. 
  • Continue studying the impact of COVID-19 on the Texas workers’ compensation system, including claim frequency, claim costs, disputes, access to care and return-to-work outcomes, and the number of claims affected by Senate Bill 22, 87th Legislature, Regular Session (2021). 
  • Update key workers’ compensation system trends to meet the requirements for the DWC biennial report required under Labor Code §402.066, including medical costs and utilization of care, return-to-work rates for injured employees, access to care for injured employees, and medical dispute resolution trends. 
  • Analyze Texas workers’ compensation hospital inpatient and outpatient payment trends over time.