State News

November 14th was the first day of bill prefiling for Texas’ upcoming 88th Legislative Session. 921 bills and resolutions were filed that day, including a couple that are of particular interest to workers’ compensation participants.

Benefits for the National Guard 

On April 25, 2022, Texas National Guardsman Bishop E. Evans died on duty while attempting to save lives but because he was serving in a State Active Duty status as opposed to federal order, his family was not guaranteed any surviving financial assistance. Texas legislators thus introduced HB 90 and SB 155 to improve workers’ compensation and death benefits for Texas Military Forces while serving in a State Active Duty status. Among other things, the proposed bills would authorize a $500,000 death benefit lump sum payment for surviving families, apply accelerated dispute resolution procedures to guardsmen claiming workplace injuries, and include PTSD coverage similar to that given to first responders.

Bundling Benefits

Pending legislation also has been proposed to allow Texas companies to offer their employees a bundled workers’ compensation plan with group health coverage. HB 351 authorizes a workers’ compensation insurance company to contract with an accident and health insurance company to offer a packaged plan that would provide for medical benefits under the group health plan and other benefits to be paid exclusively through the workers’ compensation policy. The packaged plan would not permit cost-sharing requirements for workers’ compensation medical benefits nor for employee contributions to the premiums paid for the group health coverage allocated to workers’ compensation medical benefits.

Copyright 2022, Stone Loughlin & Swanson, LLP

The number of designated doctors in the state continues to decline, with only 251 doctors (63 MDs, 11 DOs, and 177 DCs) now certified to perform exams, a decrease from the 273 certified doctors a year ago. So last month’s private letter ruling by the Texas Comptroller of Public Accounts that DD exam charges are now taxable was especially unwelcome, as it was expected to result in even more DDs jumping ship.

We are relieved to report that the Comptroller delayed implementation of its ruling that charges for designated doctor exams are subject to Texas sales and use tax until after the 2023 legislative session to allow DWC and system participants to seek a legislative change. Designated doctors are not currently required to collect tax on charges for exams.

In other news, proposed rule changes and increased fees for DDs and RMEs are on the agenda for the stakeholder meeting scheduled tomorrow, Thursday, December 1, at 1:30 p.m. A draft revised fee schedule includes proposed increases for all elements of DD and RME exams, and new fees for missed appointments and specialists:

https://www.tdi.texas.gov/wc/rules/documents/drddfee1122.pdf

Comments to the proposed changes should be emailed no later than 5:00 p.m. CST on Friday, December 16, 2022 to RuleComments@tdi.texas.gov with “Chapters 133 and 134 Informal Posting” noted in the subject line. You may also mail or deliver comments to Legal Services, MC-LS Texas Department of Insurance, Division of Workers’ Compensation, P.O. Box 12050, Austin, Texas, 78711.
    

Copyright 2022, Stone Loughlin & Swanson, LLP

Stone Loughlin & Swanson joined in honoring our good friend Marvin Kelly, recently retired after 30 years as the first, and to date only, Executive Director of the Texas Property and Casualty Insurance Guaranty Association (TPCIGA).  For those that don’t know, when an insurance company is declared impaired, TPCIGA fulfills certain policy obligations of the impaired insurance company including the obligation to pay workers’ compensation benefits.  Marvin was instrumental in creating what is now commonly recognized as one of the best, if not the best, insurance guaranty associations in the country.  We wish him well and appreciate his many years of service protecting Texas claimants and policyholders impacted by insolvent insurance companies.  
 

Copyright 2022, Stone Loughlin & Swanson, LLP 

Reliable sources inform us that Cole Fulks has replaced Kevin Henry as the Administrative Law Judge in Tyler. Cole joins the agency after representing injured workers for several years at Bailey & Galyen. Welcome, Cole!

Erica De La Cruz has been promoted to Deputy Commissioner of Claims and Customer Services. The new program area includes Claims Services, Self-Insurance Regulation, and the Subsequent Injury Fund.

Mary Landrum, the new Deputy Commissioner for Health and Safety, will oversee the Office of the Medical Advisor, Health Care Business Management, Medical Fee Dispute Resolution, Workplace Safety, and Return to Work programs. She will also continue to oversee the operations, training, and certifications for the Designated Doctor program.

Kimberly Donovan, who joined DWC in November, has been named as DWC’s new Deputy Commissioner of Operations and External Relations. This new program area includes Communications, External Relations, and the Research & Evaluation Group.

Tammy Campion is the new Deputy Commissioner for Business Process, which includes the management of DWC’s technology modernization efforts, Electronic Data Interchange (EDI) processes, system data and electronic records management.

Kate Sidora is the new Director of External and Media Relations and will manage DWC’s government relations, legislative activities, and stakeholder outreach.
 

Copyright 2022, Stone Loughlin & Swanson, LLP 

Sehgal & Sons Enterprises (Ultra Business Services Inc.), owned by Kunal Puri, was convicted of first-degree felony for defrauding its workers' compensation carrier, Texas Mutual Insurance Company. From August 2011 through December 2014, the company concealed payroll by having two separate payroll accounts with the Texas Workforce Commission, but reported only the small payroll account to Texas Mutual. The company has been ordered to pay $300,000.

Copyright 2022, Stone Loughlin & Swanson, LLP 

The DWC recently began holding contested case hearings in Austin at the new Barbara Jordan Building in the Capital Complex, located at 1601 Congress Avenue.  However, parking and entering the building is so complicated that it prompted DWC to create the following instructional video: 

https://www.youtube.com/watch?v=e4PMzgw52eA

The video discusses parking options “if you are driving to your Austin hearing.”  Due to the parking situation, you might consider some easier alternatives than driving like taking the bus or an e-scooter.  The video also reminds participants not to show up more than 15 minutes before the hearing because they won’t be allowed in the building before then.

Here is actual video showing the dire consequences when one injured worker arrived too early for his hearing in Austin:

https://youtu.be/CrRudfWIKmA

SLS scoped out the situation and after reaching several dead ends and approaching multiple locked entrances, confirmed that the new Austin digs are indeed a veritable maze due to the ongoing construction and construction fences surrounding the building.  

Therefore, to help you find your way we’ve created a map to simplify matters: 
 

 
Good luck trying to find your way in! And be sure not to arrive too early for that CCH.

Copyright 2022, Stone Loughlin & Swanson, LLP

Evidence-based medicine is the standard of compliance written into the Labor Code and used in evaluating causation issues, but in our experience the standard is often ignored or not understood.  For example, studies show that baseline MRIs do not predict future low back pain, and up to 93% of them show degenerative disc disease regardless of whether the patient is reporting symptoms.  The ODG in fact warns against attempting to correlate MRIs with symptoms.  There is a great new summary written by a well-respected doctor which was provided to us that has the medical statistics thoroughly reviewed for neck, thoracic, lumbar, wrist and hand, shoulder and knee imaging findings.  Of particular interest is the information regarding evaluating the chronicity in shoulder issues and the explanation of the reasons why so many rotator cuff surgeries fail over time.  Ever tried sewing tissue paper to tissue paper?  A link to the article can be found here.    

Copyright 2022, Stone Loughlin & Swanson, LLP 

We can’t send a newsletter out without mention of KCTX.  We have 35 current scholarship recipients and are especially grateful to the brave and water-proof golfers who participated in a very soggy golf tournament at the Dallas Cowboy’s Golf Club on October 28th.  The final numbers aren’t in yet, but the enthusiasm for the cause was not dampened at all. There is pride in overcoming adversity, and the KCTX Board (especially Wendy Schrock with Downs & Stanford, Joanne Anderson with OIEC, Catherine Benavidez with IMO, and all the volunteers) should be very proud of what they managed to weather through – they are true KCTX Champions!

Newsflash: Save the date for the KCTX Top Golf event in The Colony on November 13th from 12:00 noon to 3:00 p.m.  The event is in conjunction with the PRIMA conference in the Frisco, Texas area.  If you are attending PRIMA and get a copy of this newsletter, make sure to sign up!
 

Copyright 2022, Stone Loughlin & Swanson, LLP 

On October 20, 2022, the Texas Comptroller’s office ruled in a Private Letter that Designated Doctor exam charges are now taxable. We worry that this sales-and-use tax will drive the remaining Designated Doctors and independent doctors who perform Required Medical Exams and peer reviews further out of the system. The decision is specific to Designated Doctors, but the rationale may apply across the board for doctors who provide services other than medical treatment for system participants.  Of note, sales tax has to be collected “up front”, even before the doctor is paid his fee for the services, and even if they never get paid (or are paid late) on their bill.  No doubt the DWC will have some head-scratching to do to figure out the EDI ramifications of this development, since the decision specifically states that these services are not medical treatment.  Might this mean that there is no EDI reporting requirement? We shall see once the dust clears. We note that large exam scheduling companies can best handle this new administrative burden. The word is that DWC took the position with the Comptroller that these services should not be subject to sales-and-use tax. So much for the concept of comity.

Copyright 2022, Stone Loughlin & Swanson, LLP 

Crime doesn’t pay forever. On October 11, 2022, Ms. Khyati Undavia, owner of Memorial Compounding Pharmacy, was sentenced to 27 months in prison by U.S. District Judge Andrew Hanen.  Ms. Undavia was indicted on July 9, 2021 for conspiracy to defraud federal government programs by billing for compounded drugs that were not medically necessary and that she paid doctors an illegal kickback to prescribe.  She pled guilty on October 12, 2021. The judgment against Ms. Undavia orders her to pay restitution of six million dollars to Tricare and six million dollars to the U.S. Department of Labor, Office of Workers’ Compensation Programs (DOL-OWCP).  

Memorial Compounding Pharmacy was also active in the Texas workers’ compensation system.  The Division issued numerous medical fee dispute decisions ordering carriers to pay Memorial for its expensive compounded topical creams on the grounds that Memorial didn’t have to get preauthorization. Nonetheless, at least three different SOAH administrative law judges have reached the opposite conclusion that Memorial was required to obtain preauthorization for its compounded creams and therefore, it should not be paid.  Upon her release, Ms. Undavia will be excluded from participating as a provider in Medicare, Medicaid, and all Federal health care programs. However, the judgment does not prevent her from participating in the Texas workers’ compensation system.  We may see her again one day.
 
To view the judgment, click here.

Copyright 2022, Stone Loughlin & Swanson, LLP