| (a) The designated doctor is authorized to receive
the injured employee's confidential medical records and analyses of
the injured employee's medical condition, functional abilities, and
return-to-work opportunities to assist in the resolution of a dispute
under this subchapter without a signed release from the injured employee.
The following requirements apply to the receipt of medical records
and analyses by the designated doctor:
(1) The treating doctor and insurance carrier shall
provide to the designated doctor copies of all the injured employee's
medical records in their possession relating to the medical condition
to be evaluated by the designated doctor. For subsequent examinations
with the same designated doctor, only those medical records not previously
sent must be provided. The cost of copying shall be reimbursed in
accordance with §134.120 of this title (relating to Reimbursement
for Medical Documentation).
(2) The treating doctor and insurance carrier may also
send the designated doctor an analysis of the injured employee's medical
condition, functional abilities, and return-to-work opportunities.
The analysis may include supporting information such as videotaped
activities of the injured employee, as well as marked copies of medical
records. If the insurance carrier sends an analysis to the designated
doctor, the insurance carrier shall send a copy to the treating doctor,
the injured employee, and the injured employee's representative, if
any. If the treating doctor sends an analysis to the designated doctor,
the treating doctor shall send a copy to the insurance carrier, the
injured employee, and the injured employee's representative, if any.
The analysis sent by any party may only cover the injured employee's
medical condition, functional abilities, and return-to-work opportunities
as provided in Labor Code §408.0041.
(3) The treating doctor and insurance carrier shall
ensure that the required records and analyses (if any) are received
by the designated doctor no later than three working days prior to
the date of the designated doctor examination. If the designated doctor
has not received the medical records or any part thereof at least
three working days prior to the examination, the designated doctor
shall report this violation to the division within one working day
of not timely receiving the records. Once notified, the division shall
take action necessary to ensure that the designated doctor receives
the records. If the designated doctor does not receive the medical
records within one working day of the examination or if the designated
doctor does not have sufficient time to review the late medical records
before the examination, the designated doctor shall reschedule the
examination to occur no later than 21 days after receipt of the records.
(b) Before examining an injured employee, the designated
doctor shall review the injured employee's medical records, including
any analysis of the injured employee's medical condition, functional
abilities and return to work opportunities provided by the insurance
carrier and treating doctor in accordance with subsection (a) of this
section, and any materials submitted to the doctor by the division.
The designated doctor shall also review the injured employee's medical
condition and history as provided by the injured employee, any medical
records provided by the injured employee, and shall perform a complete
physical examination of the injured employee. The designated doctor
shall give the medical records reviewed the weight the designated
doctor determines to be appropriate.
(c) The designated doctor shall perform additional
testing when necessary to resolve the issue in question. The designated
doctor shall also refer an injured employee to other health care providers
when the referral is necessary to resolve the issue in question and
the designated doctor is not qualified to fully resolve the issue
in question. Any additional testing or referral required for the evaluation
is not subject to preauthorization requirements nor shall those services
be denied retrospectively based on medical necessity, extent of injury,
or compensability in accordance with the Labor Code §408.027
and §413.014, Insurance Code Chapter 1305, or Chapters 10, 19,
133, or 134 of this title (relating to Workers' Compensation Health
Care Networks, Agents' Licensing, General Medical Provisions, and
Benefits--Guidelines for Medical Services, Charges, and Payments,
respectively) but is subject to the requirements of §180.24 of
this title (relating to Financial Disclosure). Any additional testing
or referral examination and the designated doctor's report must be
completed within 15 working days of the designated doctor's physical
examination of the injured employee unless the designated doctor receives
division approval for additional time before the expiration of the
15 working days. If the injured employee fails or refuses to attend
the designated doctor's requested additional testing or referral examination
within 15 working days or within the additional time approved by the
division, the designated doctor shall complete the doctor's report
based on the designated doctor's examination of the injured employee,
the medical records received, and other information available to the
doctor and indicate the injured employee's failure or refusal to attend
the testing or referral examination in the report.
(d) Any evaluation relating to either maximum medical
improvement (MMI), an impairment rating, or both, shall be conducted
in accordance with §130.1 of this title (relating to Certification
of Maximum Medical Improvement and Evaluation of Permanent Impairment).
If a designated doctor is simultaneously requested to address MMI
or impairment rating and the extent of the compensable injury in a
single examination, the designated doctor shall provide multiple certifications
of MMI and impairment ratings that take into account each reasonable
outcome for the extent of the injury. A designated doctor who determines
the injured employee has reached MMI or who assigns an impairment
rating, or who determines the injured employee has not reached MMI,
shall complete and file a report as required by §130.1 of this
title and §130.3 of this title (relating to Certification of
Maximum Medical Improvement and Evaluation of Permanent Impairment
by a Doctor Other than the Treating Doctor). If the designated doctor
provided multiple certifications of MMI and impairment ratings, the
designated doctor must file a Report of Medical Evaluation under §130.1(d)
of this title for each impairment rating assigned and a Designated
Doctor Examination Data Report pursuant to §127.220 of this title
(relating to the Designated Doctor Reports) for the doctor's extent
of injury determination. The designated doctor, however, shall only
submit one narrative report required by §130.1(d)(1)(B) of this
title for all impairment ratings assigned and extent of injury findings.
All designated doctor narrative reports submitted under this subsection
shall also comply with the requirements of §127.220(a) of this
title.
(e) A designated doctor who examines an injured employee
pursuant to any question relating to return to work is required to
file a Work Status Report that meets the required elements of these
reports described in §129.5 of this title (relating to Work Status
Reports) and a narrative report that complies with the requirements
of §127.220(a) of this title within seven working days of the
date of the examination of the injured employee. This report shall
be filed with the treating doctor, the division, and the insurance
carrier by facsimile or electronic transmission. In addition, the
designated doctor shall file the reports with the injured employee
and the injured employee's representative (if any) by facsimile or
by electronic transmission if the designated doctor has been provided
with a facsimile number or email address for the recipient, otherwise,
the designated doctor shall send the report by other verifiable means.
(f) A designated doctor who resolves questions on issues
other than those listed in subsections (d) and (e) of this section,
shall file a Designated Doctor Examination Data Report that complies
with §127.220(c) of this title and a narrative report that complies
with §127.220(a) of this title within seven working days of the
date of the examination of the injured employee. These reports shall
be filed with the treating doctor, the division, and the insurance
carrier by facsimile or electronic transmission. In addition, the
designated doctor shall provide these reports to the injured employee
and the injured employee's representative (if any) by facsimile or
by electronic transmission if the designated doctor has been provided
with a facsimile number or email address for the recipient, otherwise,
the designated doctor shall send the reports by other verifiable means.
(g) The report of the designated doctor is given presumptive
weight regarding the issue(s) in question the designated doctor was
properly appointed to address, unless the preponderance of the evidence
is to the contrary.
(h) The insurance carrier shall pay all benefits, including
medical benefits, in accordance with the designated doctor's report
for the issue(s) in dispute. If the designated doctor provides multiple
certifications of MMI/impairment ratings under subsection (d) of this
section because the designated doctor was also ordered to address
the extent of the injured employee's compensable injury, the insurance
carrier shall pay benefits based on the conditions to which the designated
doctor determines the compensable injury extends. For medical benefits,
the insurance carrier shall have 21 days from receipt of the designated
doctor's report to reprocess all medical bills previously denied for
reasons inconsistent with the findings of the designated doctor's
report. By the end of this period, insurance carriers shall tender
payment on these medical bills in accordance with the Act and Chapters
133 and 134 of this title. For all other benefits, the insurance carrier
shall tender payment no later than five days after receipt of the
report.
(i) The designated doctor shall maintain accurate records
for, at a minimum, five years from the anniversary date of the date
of the designated doctor's last examination of the injured employee.
This requirement does not reduce or replace any other record retention
requirements imposed upon a designated doctor by an appropriate licensing
board. These records shall include the injured employee's medical
records, any analysis submitted by the insurance carrier or treating
doctor (including supporting information), reports generated by the
designated doctor as a result of the examination, and narratives provided
by the insurance carrier and treating doctor, to reflect:
(1) the date and time of any designated doctor appointments
scheduled with an injured employee;
(2) the circumstances regarding a cancellation, no-show
or other situation where the examination did not occur as initially
scheduled or rescheduled and, if applicable, documentation of the
agreement of the designated doctor and the injured employee to reschedule
the examination and the notice that the doctor provided to the division,
the injured employee's treating doctor, and the insurance carrier
within 24 hours of rescheduling an appointment;
(3) the date of the examination;
(4) the date medical records were received from the
treating doctor or any other person;
(5) the date reports described in subsections (d),
(e), and (f) of this section were submitted to all required parties
and documentation that these reports were submitted to the division,
treating doctor, and insurance carrier by facsimile or electronic
transmission and to other required parties by verifiable means;
(6) the name(s) of any referral health care providers
used by the designated doctor, if any; the date of appointments by
referral health care providers; and the reason for referral by the
designated doctor; and
(7) the date, if any, the doctor contacted the division
for assistance in obtaining medical records from the insurance carrier
or treating doctor.
(j) Parties may dispute any entitlement to benefits
affected by a designated doctor's report through the dispute resolution
processes outlined in Chapters 140 - 144 and 147 of this title (relating
to Dispute Resolution processes, proceedings, and procedures).
(k) This section will become effective on December
6, 2018.
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