HBA-ATS H.B. 2513 76(R)BILL ANALYSIS Office of House Bill AnalysisH.B. 2513 By: Ritter Business & Industry 6/8/1999 Enrolled BACKGROUND AND PURPOSE This bill addresses several issues related to the treatment of injured employees and their return to work. An insurance carrier may provide vocational rehabilitation services to an injured worker through private or carrier-sponsored vocational case managers. Prior to the 76th Legislature, the law did not regulate private or carrier-sponsored vocational rehabilitation case managers who participated in an injured worker's case. H.B. 2513 authorizes the Texas Workers' Compensation Commission (commission) to require that a private provider of vocational rehabilitation services maintain certain credentials and qualifications in order to provide services in connection with a workers' compensation insurance claim. When an injured employee applies for supplemental income benefits, the commission refers that employee to the Texas Rehabilitation Commission (TRC) if the employee could benefit from vocational rehabilitation services. However, because of TRC's limited resources, many injured workers have reported that TRC was unable to assist them. Although these workers had been identified as likely candidates for vocational rehabilitation, the commission was not required to notify the insurance carrier of the injured worker's need in the event that the carrier would be willing to provide vocational rehabilitation services, prior to the 76th Legislature. H.B. 2513 requires the commission to notify insurance carriers of the need for vocational rehabilitation or training services, and authorizes the carrier to provide services through a private provider of vocational rehabilitation services. Prior to the 76th Legislature, the law required the commission to periodically review the medical care provided to injured employees whose claims had exceeded "lost-time guidelines." These guidelines were intended to help identify workers who were not making progress in returning to work or workers who needed additional attention or assistance. Although the commission had gathered a great deal of information as a basis for these guidelines, a draft proposal had not yet been presented to the commission for consideration because of some confusion as to what the term "losttime guidelines" really meant. H.B. 2513 replaces lost-time or other appropriate guidelines with guidelines for expected or average return to work time frames as the guidelines that are used to determine whether the medical care provided to an injured employee exceeded the recovery time expected. The commission routinely provides outreach assistance to employers seeking health and safety information. This outreach comes in many forms, including booklets, videos, training sessions and on-site assessments. Information to assist employers in creating written return to work or modified duty programs has never been part of the commission's outreach efforts. Several research studies, including some conducted by the Research and Oversight Council on Workers' Compensation, have shown that employers have a great influence on whether injured employees are able to successfully return to work after an injury. Workers are more likely to return to work if their employers have a modified duty or job retraining program or other return to work program in place. An effective return to work program minimizes lost time and lowers medical and indemnity costs, which result in lower premiums. H.B. 2513 requires the commission to implement a program to encourage employers and treating doctors to discuss the availability of modified duty to encourage the safe and more timely return to work of injured employees. This bill also requires the commission to provide through its health and safety information and medical review outreach programs information to employers regarding effective return to work programs. Before an injured worker is able to return to work in either a full or modified duty capacity, a functional capacity exam is typically performed to determine the ability of the injured worker to perform the physical aspects of the job. Without good communication between the employer and the injured worker's treating doctor, it is difficult for an employer with a progressive return to work program to initiate this exam and provide a modified duty assignment for the injured worker. H.B. 2513 authorizes the commission to require a treating or examining doctor, on the request of the employer, insurance carrier, or commission, to provide a functional capacity evaluation of an injured employee and to determine the employee's ability to engage in physical activities found in the workplace or in activities that are required in a modified duty setting. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Texas Workers' Compensation Commission in SECTION 2 (Section 409.012, Labor Code) and SECTION 3 (Section 413.018, Labor Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 408.150, Labor Code, as follows: (a) Adds a provision requiring the commission to notify insurance carriers of the need for vocational rehabilitation or training services. Authorizes the carrier to provide services through a private provider of vocational rehabilitation services under Section 409.012 (Vocational Rehabilitation Information). (b) Adds references to the Texas Rehabilitation Commission and a private provider to provide that an employee who refuses services or refuses to cooperate with services of the Texas Rehabilitation Commission or a private provider loses entitlement to supplemental income benefits. Makes a nonsubstantive change. SECTION 2. Amends Section 409.012, Labor Code, by adding Subsection (e), to authorize the Texas Workers' Compensation Commission (commission), by rule, to require that a private provider of vocational rehabilitation services maintain certain credentials and qualifications in order to provide services in connection with a workers' compensation insurance claim. SECTION 3. Amends Section 413.018, Labor Code, by amending Subsection (a) and adding Subsections (c)-(e), as follows: (a) Replaces lost-time or other appropriate guidelines with guidelines for expected or average return to work time frames as the guidelines that are used to determine whether the medical care provided to an injured employee exceeded the recovery time expected. (c) Adds this subsection to require the commission to implement a program to encourage employers and treating doctors to discuss the availability of modified duty to encourage the safe and more timely return to work of injured employees. Authorizes the commission to require a treating or examining doctor, on the request of the employer, insurance carrier, or commission, to provide a functional capacity evaluation of an injured employee and to determine the employee's ability to engage in physical activities found in the workplace or in activities that are required in a modified duty setting. (d) Adds this subsection to require the commission to provide through its health and safety information and medical review outreach programs information to employers regarding effective return to work programs. Provides that this section does not require an employer to provide modified duty or an employee to accept a modified duty assignment. Provides that an employee who does not accept an employer's offer of modified duty determined by the commission to be a bona fide job offer is subject to Section 408.103(e) (Amount of Temporary Income Benefits). (e) Adds this subsection to authorize the commission to adopt rules and forms as necessary to implement this section. SECTION 4. Effective date: September 1, 1999, except for Section 413.018(c), which takes effect by January 1, 2000. SECTION 5. Emergency clause.