The Texas Workers' Compensation Commission (the commission) adopts amendments to §134.1, concerning use of the medical fee guidelines without changes to the proposed text published in the December 28, 2001 issue of the Texas Register (26 TexReg 10785). The amendment is adopted to make §134.1 consistent with other commission rules.

As required by the Government Code §2001.033(1), the commission's reasoned justification for this rule is set out in this order which includes the preamble, which in turn includes the rule. This preamble contains a summary of the factual basis of the rule, a summary of comments received from interested parties, names of those groups and associations who commented and whether they were for or against adoption of the rule, and the reasons why the commission disagrees with some of the comments and proposals.

No changes were made to the proposed rule in response to public comment received in writing and at a public hearing held on January 24, 2002.

Since adoption of previous §134.1 a number of changes to the commission's fee guidelines have been adopted. As a result, the references in §134.1 to the Medical Fee Guidelines, the Pharmaceutical Fee Guidelines, and the Hospital and Ambulatory Surgical Center Fee Guidelines have become outdated. Subsections (c), (d), and (e) are deleted to remove the outdated references. Because information regarding the applicability of the various fee guidelines is contained in the fee guidelines themselves, it is not necessary to include this information in §134.1.

In addition, the language "using the codes from" in subsection (b) has been replaced with "in accordance with" because the fee guidelines will not necessarily contain coding information within the text of the guidelines. In subsection (f), the citation to the Workers' Compensation Act has been updated to reflect the appropriate Texas Labor Code citation.

Comments generally supporting the proposed amendment to §134.1 were received from the Insurance Council of Texas.

Comments generally opposing the proposed amendment to §134.1 were received from the Texas Chiropractic Association.

Comments with general recommendations to proposed §134.1 were received from EMPI, Inc.

Summaries of the comments and commission responses are as follows:

COMMENT: Commenters provided opinions on items and issues not relevant to this rule proposal.

RESPONSE: The commission acknowledges commenters' opinions and issues; however, the comments are outside the realm of this rule proposal and addressed in other commission rules.

COMMENT: Commenter supported the amended rule proposal stating it served as a necessary "clean up" to the existing rule.

RESPONSE: The commission agrees with commenters' support of proposed §134.1 regarding Use of the Fee Guidelines.

COMMENT: (b) Commenter advised that the first part of the statement is a truncated communication of the wording in Texas Labor Code 408.021, and is therefore believed to be insufficient to communicate the intended purpose.

RESPONSE: The commission disagrees that the first part of the statement in rule 134.1(b) is a truncated communication of the wording the Texas Labor Code 408.021. The following language used in the fee guidelines is sufficient to communicate the purpose and scope of billing for a compensable injury: "Health care providers shall bill the insurance carrier for all compensable injuries in accordance with the fee guidelines established by the commission. The health care provider shall bill the insurance carrier for the health care treatments and services performed, and medically necessary to relieve the effects of the compensable injury and promote recovery."

COMMENT: (b) Commenters recommended language additions and substitutions that include reference to the goal of return to work, such as, "...promote recovery and return to work." and "The health care providers shall bill the insurance carrier for the health care treatments and services reasonably required by the nature of the injury as and when needed. The employee is specifically entitled to health care that cures or relieves the effects naturally resulting from the compensable injury; or enhances the ability of the employee to return to or retain employment."

RESPONSE: The commission disagrees with commenters' recommended language addition. Throughout the Texas Workers' Compensation Commission Act and Rules, the commission provides ample clarification that injured employees are entitled to health care that enhances the ability of the employee to return to or retain employment. For purposes of the describing the use of the commission's fee guidelines, such return to work goal language is unnecessary.

COMMENT: (c) Commenter recommended language addition to the rule that allows for a default reimbursement mechanism with the intent to eliminate confusion and foster mutual understanding in such instances where a service is not identified in an established commission fee guideline. Commenter further recommended such default reimbursement to be based on the Medical Fee Guideline, or an established percentage of the health care provider's billed charges.

RESPONSE: The commission disagrees with the recommendation to add default reimbursement language to this rule. Such an addition could be confusing and conflict with other provisions. The provisions for default reimbursement are best contained within the fee guideline rule(s).

The amendment is adopted pursuant to the following statutes which are associated with the Medical Fee Guidelines: the Texas Labor Code §402.061, which authorizes the commission to adopt rules necessary to administer the Act; the Texas Labor Code §413.002, which requires that the commission's Medical Review Division monitor health care providers, insurance carriers and claimants to ensure compliance with commission rules; the Texas Labor Code §413.007, which sets out information to be maintained by the commission's Medical Review Division; the Texas Labor Code §413.011, which mandates that the commission by rule establish medical policies and guidelines; the Texas Labor Code §413.012, which requires review and revision of the medical policies and fee guidelines at least every two years; the Texas Labor Code §413.013, which requires the commission by rule to establish programs related to health care treatments and services for dispute resolution, monitoring, and review; the Texas Labor Code §413.015, which requires insurance carriers to pay charges for medical services as provided in the statute and requires that the commission ensure compliance with the medical policies and fee guidelines through audit and review; the Texas Labor Code §413.016, which provides for refund of payments made in violation of the medical policies and fee guidelines; the Texas Labor Code §413.017, which provides a presumption of reasonableness for medical services fees which are consistent with the medical policies and fee guidelines; the Texas Labor Code §413.019, which provides for payment of interest on delayed payments refunds or overpayments; the Texas Labor Code §413.031, which provides a procedure for medical dispute resolution and; the Texas Labor Code §413.044, which provides for sanctions against designated doctors who are found to be out of compliance with the medical policies and fee guidelines.

The amendment is adopted pursuant to following statutes that are associated with the Medical Fee Guidelines: the Texas Labor Code §402.061, §413.002, §413.007, §§413.011 - 413.013, §§413.015 - 413.017, §413.019, §413.031, §413.044.