HBA-ATS C.S.H.B. 2513 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 2513 By: Ritter Business & Industry 3/26/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE This bill addresses several issues related to the treatment of injured employees and their return to work. Currently, an insurance carrier may provide vocational rehabilitation services to an injured worker through a private or carrier-sponsored vocational case managers. The law does not regulate private or carrier-sponsored vocational rehabilitation case managers who participate in an injured worker's case. C.S.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. Currently, when injured employees apply for supplemental income benefits, the commission refers them to the Texas Rehabilitation Commission (TRC) if the worker 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 have been identified as likely candidates for vocational rehabilitation, the commission is 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. C.S.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. Current law requires the commission to periodically review the medical care provided to injured employees whose claims have 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 has gathered a great deal of information as a basis for these guidelines, a draft proposal has not yet been presented to the commission for consideration because of some confusion as to what the term "lost-time guidelines" really means. C.S.H.B. 2513 replaces lost-time or other appropriate guidelines with guidelines for expected or average return to work time frame 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. C.S.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. C.S.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 by 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 frame 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. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.H.B. 2513 modifies the original bill by redesignating SECTION 1 to SECTION 2 and modifying it. The substitute authorizes the Texas Workers' Compensation Commission (commission), by rule, to require that a private provider of vocational rehabilitation services, rather than rehabilitation services, maintain certain credentials and qualifications in order to provide services in connection with, rather than participate in, a workers' compensation insurance claim. The substitute also makes nonsubstantive changes. Because of the redesignation, rulemaking authority delegated to the commission is now found in SECTION 2 of the substitute. C.S.H.B. 2513 modifies the original bill by redesignating SECTION 2 to SECTION 1 and modifying it. The substitute adds a provision requiring the commission to notify insurance carriers of the need for vocational rehabilitation or training services and authorizing the carrier to provide services through a private provider of vocational rehabilitation services under Section 409.012. The original bill's proposed addition to Section 409.012 required the commission to notify an insurance carrier of the need for vocational rehabilitation or training services in the event that the carrier chooses to provide services through a private provider of vocational rehabilitation services under Section 409.012. The substitute also makes nonsubstantive changes. C.S.H.B. 2513 modifies the original bill in SECTION 3 by changing the proposed addition of Subsection (c) to Section 413.018, Labor Code, to delete the date January 1, 2000, as the date the commission is required to implement its 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. The substitute also modifies the proposed addition by authorizing 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, rather than having the doctor perform an evaluation and report on the injured employee's functional capacity. The substitute also deletes the proposed definition of "functional capacity evaluation." The substitute also modifies the original bill in Subsection (d) by providing 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), rather than stating, as the original did, that an employee may lose eligibility for income benefits if the commission determines that the employer made a bona fide job offer under Section 408.103(e) and that offer was not accepted by the employee. The substitute also makes nonsubstantive changes. C.S.H.B. 2513 modifies the original bill in SECTION 4 by providing for two effective dates. In the original bill, the entire Act was to take effect on September 1, 1999. The substitute provides that the entire Act takes effect on September 1, 1999, except for proposed Section 413.018(c), which takes effect by January 1, 2000.