The Texas Department of Insurance, Division of Workers' Compensation (division) adopts non-substantive amendments to 28 Texas Administrative Code (TAC) §134.204 and adopts new 28 TAC §§134.209, 134.210, 134.215, 134.220, 134.225, 134.230, 134.235, 134.239, 134.240, and 134.250 concerning medical fee guidelines for workers' compensation. The amended and new sections are adopted without changes to the proposed text published in the March 18, 2016, issue of the Texas Register (41 TexReg 2118). A correction of error notice was published in the April 1, 2016, issue of the Texas Register (41 TexReg 2523) to correct errors in the preamble published in the March 18, 2016, issue of the Texas Register (41 TexReg 2118). No request for a public hearing was submitted to the division.

New 28 TAC §§134.209, 134.210, 134.215, 134.220, 134.225, 134.230, 134.235, 134.239, 134.240, and 134.250 include non-substantive changes to conform to current agency style, correct grammatical errors, and renumber or reletter subsections. The new sections become applicable for workers' compensation specific codes, services and programs provided on or after September 1, 2016 to allow system participants sufficient time to adjust to the reorganization. The adoption of the repeal of §134.202 and §134.302 is published elsewhere in this issue of the Texas Register.

In accordance with Government Code §2001.033, the division's reasoned justification for these rules is set out in this order, which includes the preamble. The following paragraphs include a detailed section-by-section description and reasoned justification of amendments to 28 TAC §134.204 and new 28 TAC §§134.209, 134.210, 134.215, 134.220, 134.225, 134.230, 134.235, 134.239, 134.240, and 134.250.

The amendments and new sections are necessary to reorganize existing 28 TAC §134.204 by adding its requirements to new 28 TAC §§134.209, 134.210, 134.215, 134.220, 134.225, 134.230, 134.235, 134.239, 134.240, and 134.250 for workers' compensation specific codes, services, and programs provided on or after September 1, 2016. The division clarifies that the reorganization is non-substantive and does not include new requirements for system participants. The new sections largely mirror existing 28 TAC §134.204 and include non-substantive changes. The reorganization creates a more comprehensive format by separating the billing and reimbursement requirements for multiple services into new sections. The reorganization is necessary to streamline compliance for system participants and streamline future amendments to the guidelines. The reorganization will improve the division's ability to make future amendments to the multiple services without resulting in one complex rule project. The division declines to repeal existing 28 TAC §134.204 at this time. The division clarifies that existing 28 TAC §134.204 will remain applicable for workers' compensation specific codes, services, and programs provided from March 1, 2008 until September 1, 2016.

Amended 28 TAC §134.204. Amended 28 TAC §134.204 addresses the medical fee guideline for workers' compensation specific codes, services, and programs provided from March 1, 2008 until September 1, 2016. Amended 28 TAC §134.204(a)(2) deletes the phrase "on or after" and adds the word "from" and the phrase "until September 1, 2016." These amendments are necessary to prevent the applicability of existing 28 TAC §134.204 from running concurrently with new 28 TAC §§134.209, 134.210, 134.215, 134.220, 134.225, 134.230, 134.235, 134.239, 134.240, and 134.250. The new sections replace existing 28 TAC §134.204 for workers' compensation specific codes, services, and programs provided on or after September 1, 2016. The division clarifies that existing 28 TAC §134.204 and the new sections will not be applicable for workers' compensation specific codes, services, and programs at the same time. The delayed applicability date of September 1, 2016 will allow system participants sufficient time to adjust to the reorganization before the new sections become applicable for workers' compensation specific codes, services, and programs.

New 28 TAC §134.209. New 28 TAC §134.209 addresses the applicability for the medical fee guideline for workers' compensation specific codes, services, and programs outlined in new §§134.210, 134.215, 134.220, 134.225, 134.230, 134.235, 134.239, 134.240, and 134.250. New 28 TAC §134.209 largely mirrors existing 28 TAC §134.204(a), with non-substantive changes. New 28 TAC §134.209 does not include the title "Medical Fee Guideline for Workers' Compensation Specific Services" and instead includes the title "Applicability." The title "Applicability" better reflects the content of the new 28 TAC §134.209. The new section also does not include the phrase "applicability of this rule is as follows:" because the new section title is "Applicability" therefore including the phrase is redundant.

New 28 TAC §134.209(a)(1) - (5) largely mirrors existing 28 TAC §134.204(a)(1)(A) - (E), with non-substantive changes. New 28 TAC §134.209(a) does not include the phrase "This section applies" and instead includes the phrase "Sections 134.209, 134.210, 134.215, 134.220, 134.225, 134.230, 134.235, 134.239, 134.240, and 134.250 of this title apply" to specify the new citation numbers applicable to workers' compensation specific codes, services, and programs.

New 28 TAC §134.209(a) does not include subparagraphs (A) - (E) and instead includes paragraphs (1) - (5). The renumbering is necessary because the phrase "applicability of this rule is as follows:" is excluded.

New 28 TAC §134.209(a)(1) does not include the title of the referenced rule citation in existing 28 TAC §134.204(a)(1)(A) "(relating to Medical Fee Guideline for Professional Service)" to conform to current agency style.

New 28 TAC §134.209(b) largely mirrors existing 28 TAC §134.204(a)(2), with non-substantive changes. New 28 TAC §134.209(b) does not include the phrase "this section applies" and instead includes the phrase "Sections 134.209, 134.210, 134.215, 134.220, 134.225, 134.230, 134.235, 134.239, 134.240, and 134.250 of this title apply" to specify the new citation numbers applicable to workers' compensation specific codes, services, and programs.

New 28 TAC §134.209(b) does not include the date "March 1, 2008" and instead includes the date "September 1, 2016." This is necessary because the new sections will have a delayed applicability date. The delayed applicability date allows time for system participants to adjust to the reorganization and new sections before the new sections become applicable for workers' compensation specific services. The division expects the new sections to become applicable to workers' compensation specific codes, services, and programs provided on or after September 1, 2016.

New 28 TAC §134.209(c) includes a severability clause. The inclusion is necessary to ensure that any invalidity of the rules will not affect parts of the rules given effect without the invalid provision or application.

New 28 TAC §134.209(d) largely mirrors existing 28 TAC §134.204(m), with non-substantive changes. New 28 TAC §134.209(d) does not include the introductory sentence "the following shall apply to Treating Doctor Examination to Define the Compensable Injury" to conform to current agency style.

New 28 TAC §134.209(d) does not include the phrase "this type of" because the phrase is no longer necessary without the introductory sentence "the following shall apply to Treating Doctor Examination to Define the Compensable Injury."

New 28 TAC §134.209(d) does not include the title of the referenced rule citation in existing 28 TAC §134.204(m) "(relating to Treating Doctor Examination to Define Compensable Injury)" to conform to current agency style.

New 28 TAC §134.209(d) includes the phrase "a treating doctor" and the phrase "to define the compensable injury" because the phrases are necessary to specify the type of examination.

New 28 TAC §134.210. New 28 TAC §134.210 addresses general provisions applicable to the medical fee guideline for workers' compensation specific services.

New 28 TAC §134.210 largely mirrors existing 28 TAC §134.204(a)(5), (b) - (d), and (n), with non-substantive changes. New 28 TAC §134.210 includes the title "Medical Fee Guideline for Workers' Compensation Specific Services" because the title reflects the content of the section.

New 28 TAC §134.210 does not include existing 28 TAC §134.204(a)(3) and (4) because the paragraphs contain rule citations that are no longer effective.

New 28 TAC §134.210(a) largely mirrors existing 28 TAC §134.204(a)(5), with non-substantive changes. New 28 TAC §134.210(a) does not include the phrase "the Texas Department of Insurance, Division of Workers' Compensation (Division)," and instead includes the word "division" to conform to current agency style.

New 28 TAC §134.210(a) does not include the title of the referenced rule citation in existing 28 TAC §134.204(a)(5) "(relating to MDR of Medical Necessity Disputes by Independent Review Organizations)" to conform to current agency style.

New 28 TAC §134.210(b)(1) - (3) largely mirrors existing 28 TAC §134.204(b)(1) - (3), with non-substantive changes. New 28 TAC §134.210(b) does not include unnecessary capitalization to conform to current agency style.

New 28 TAC §134.210(b)(1) does not include the introductory word "Billing" to conform to current agency style.

New 28 TAC §134.210(b)(1) includes the phrase "Current Procedural Terminology" before the abbreviation "CPT". The non-substantive change is necessary for clarity.

New 28 TAC §134.210(b)(1) does not include the word "codes" because the word is used twice to describe Level I and Level II Healthcare Common Procedure Coding System codes and the second use is repetitive.

New 28 TAC §134.210(b)(1) does not include the abbreviation "HCPs" and instead includes the phrase "health care providers." The non-substantive change is necessary for clarity.

New 28 TAC §134.210(b)(1) does not include unnecessary capitalization to conform to current agency style.

New 28 TAC §134.210(b)(2) does not include the introductory word "Modifiers" to conform to current agency style.

New 28 TAC §134.210(b)(2) includes the word "insurance" before the word "carriers" to conform to current agency style.

New 28 TAC §134.210(b)(2) does not include subsection "(n)" and instead includes subsection "(e)" because new 28 TAC §134.210(e) contains division-specific modifiers.

New 28 TAC §134.210(b)(3) does not include the introductory phrase "Incentive Payments" to conform to current agency style.

New 28 TAC §134.210(b)(3) does not include the phrase "subsections (d), (e), (g), (i), (j), and (k)" and instead includes the phrase "§§134.220, 134.225, 134.235, 134.240, and 134.250 of this title and subsection (d)" because the new sections reflect the content of existing 28 TAC §134.204(e), (g), (i), (j), and (k).

New 28 TAC §134.210(b)(3) does not include the title of the referenced rule citation in existing 28 TAC §134.204(b)(3) "(relating to Incentive Payments for Workers' Compensation Underserved Areas)" to conform to current agency style.

New 28 TAC §134.210(c) mirrors existing §134.204(c).

New 28 TAC §134.210(d)(1) - (3) largely mirrors existing 28 TAC §134.204(d)(1) - (3), with non-substantive changes. New 28 TAC §134.210(d) does not include the phrase "of the Labor Code" after the citation and instead includes the phrase "Labor Code" before the citation to conform to current agency style.

New 28 TAC §134.210(d)(2) does not include unnecessary capitalization to conform to current agency style.

New 28 TAC §134.210(d)(3) does not include the title of the referenced rule citation "(relating to Medical Reimbursement)" to conform to current agency style.

New 28 TAC §134.210(e)(1) - (24) largely mirrors existing 28 TAC §134.204(n)(1) - (24), with non-substantive changes. New 28 TAC §134.210(e) does not include unnecessary capitalization to conform to current agency style.

New 28 TAC §134.210(e), (e)(1), and (18) do not include the abbreviation "HCP" and instead include the phrase "health care provider." The non-substantive change is necessary for clarity.

New 28 TAC §134.210(e)(14) and (15) do not include the word "of" in the phrase "of at least" to conform to current agency style.

New 28 TAC §134.210(e)(20) does not include the phrase "maximum medical improvement" and instead includes the abbreviation "MMI." The non-substantive change is necessary for consistency.

New 28 TAC §134.215. New 28 TAC §134.215 addresses the medical fee guideline for home health services. New 28 TAC §134.215 largely mirrors existing 28 TAC §134.204(f), with non-substantive changes. New 28 TAC §134.215 includes the title "Home Health Services" because the title reflects the content of the section.

New 28 TAC §134.215 does not include subsection "(f)" because new 28 TAC §134.215 is an independent section that contains an implied subsection and the lettering is no longer necessary to conform to Texas Register requirements.

New 28 TAC §134.215 does not include unnecessary punctuation because of the change to sentence structure.

New 28 TAC §134.215 includes the phrase "the maximum allowable reimbursement (MAR)" for clarity. New 28 TAC §134.215 does not include the phrase "to determine the MAR" because the MAR provided for home health services is 125% of the Texas Medicaid fee schedule. New 28 TAC §134.215 also does not include the phrase "the MAR" because the phrase "maximum allowable reimbursement (MAR)" is included and the phrase "the MAR" is repetitive.

New 28 TAC §134.220. New 28 TAC §134.220 addresses the medical fee guideline for case management services. New 28 TAC §134.220 largely mirrors existing 28 TAC §134.204(e), with non-substantive changes. New 28 TAC §134.220 includes the title "Case Management Services" because the title reflects the content of this section.

New 28 TAC §134.220 does not include a subsection "(e)" because new 28 TAC §134.220 is an independent section that contains an implied subsection and the lettering is no longer necessary to conform to Texas Register requirements.

New 28 TAC §134.220 does not include unnecessary capitalization to conform to current agency style.

New 28 TAC §134.220 does not include the word "is" and instead includes the word "are". The non-substantive change is necessary to correct a grammatical error.

New 28 TAC §134.220 does not include the abbreviation "HCP" and instead includes the phrase "health care provider." The non-substantive change is necessary for clarity.

New 28 TAC §134.225. New 28 TAC §134.225 addresses the medical fee guideline for functional capacity evaluations. New 28 TAC §134.225 largely mirrors existing 28 TAC §134.204(g), with non-substantive changes. New 28 TAC §134.225 includes the title "Functional Capacity Evaluations" because the title reflects the contents of this section.

New 28 TAC §134.225 does not include a subsection "(g)" because new 28 TAC §134.225 is an independent section that contains an implied subsection and the lettering is no longer necessary to conform to Texas Register requirements.

New 28 TAC §134.225 does not include unnecessary capitalization to conform to current agency style.

New 28 TAC §134.230. New 28 TAC §134.230 addresses the medical fee guideline for return to work rehabilitation programs. New 28 TAC §134.230 largely mirrors existing 28 TAC §134.204(h), with non-substantive changes. New 28 TAC §134.230 includes the title "Return to Work Rehabilitation Programs" because the title reflects the content of this section.

New 28 TAC §134.230 does not include a subsection "(h)" because new 28 TAC §134.230 is an independent section that contains an implied subsection and the lettering is no longer necessary to conform to Texas Register requirements.

New 28 TAC §134.230 does not include unnecessary capitalization to conform to current agency style.

New 28 TAC §134.230 includes the word "insurance" before the word "carrier" to conform to current agency style.

New 28 TAC §134.230(1)(A) includes the phrase "maximum allowable reimbursement (MAR)." The non-substantive change is necessary for clarity.

New 28 TAC §134.230(3)(B) does not include the numeral "8" and instead includes the word "eight" for consistency and to conform to current agency style.

New 28 TAC §134.235. New 28 TAC §134.235 addresses the medical fee guideline for return to work/evaluation of medical care examinations. New 28 TAC §134.235 largely mirrors existing 28 TAC §134.204(k), with non-substantive changes. New 28 TAC §134.235 includes the title "Return to Work/Evaluation of Medical Care Examinations" because the title reflects the content of this section.

New 28 TAC §134.235 does not include a subsection "(k)" because new 28 TAC §134.235 is an independent section that contains an implied subsection and the lettering is no longer necessary to conform to Texas Register requirements.

New 28 TAC §134.235 does not include unnecessary capitalization to conform to current agency style.

New 28 TAC §134.235 includes the phrase "maximum medical improvement/impairment rating (MMI/IR)." The non-substantive change is necessary for clarity.

New 28 TAC §134.235 does not include the phrase "subsection (i) of this section" and instead includes the phrase "§134.240 of this title." The non-substantive change is necessary because new 28 TAC §134.240 reflects the content of existing 28 TAC §134.204(i).

New 28 TAC §134.239. New 28 TAC §134.239 addresses billing for work status reports conducted separately from designated doctor examinations, maximum medical improvement evaluations, or impairment rating examinations. New 28 TAC §134.239 largely mirrors existing 28 TAC §134.204(l), with non-substantive changes. New 28 TAC §134.239 includes the title "Billing for Work Status Reports" because the title reflects the content of this section.

New 28 TAC §134.239 does not include a subsection "(l)" because new 28 TAC §134.239 is an independent section that contains an implied subsection and the lettering is no longer necessary to conform to Texas Register requirements.

New 28 TAC §134.239 does not include the sentence "the following shall apply to work status reports" because the sentence is no longer necessary to separate subsections.