FOLIO

An Analysis of COVID-19 Orders and Bulletins [Updated]

Apr 16, 2020 | by FOL

Texas Workers’ Compensation system stakeholders have been deluged with emergency memos and bulletins from the Division following the Governor’s declaration that COVID-19 presented a statewide public health disaster.

Some early policies announced in the memos have been updated. Some memos dealt with multiple subject matters. We have collected the various pronouncements and organized them by subject matter below.

We provided you with a breakdown of those memos on April 3, 2020. This memo is an updated description of state and agency actions through April 15, 2020.

Governor’s Declaration of Disaster and Executive Orders

On March 13, 2020, Governor Greg Abbott declared COVID-19 to be a statewide public health disaster.

On March 19, 2020, Governor Greg Abbott issued Executive Order No. GA-08 relating to COVID- 19 preparedness and mitigation. The Governor ordered Texans to avoid social gatherings in groups of more than 10 people; required Texans to avoid eating or drinking at bars, restaurants, and food courts, or visiting gyms or massage parlors; provided, however, while highly encouraging the use of drive-thru, pickup, or delivery options throughout the limited duration of the executive order; prohibited Texans from visiting nursing homes or retirement or long-term care facilities unless to provide critical assistance; and temporarily closed schools. The order did not prohibit people from visiting a variety of places, including grocery stores, gas stations, parks, and banks, so long as the necessary precautions are maintained to reduce the transmission of COVID-19. The order was effective through April 3, 2020.

On March 31, 2020, Governor Greg Abbott issued Executive Order No. GA-14 relating to statewide continuity of essential services and activities during the COVID-19 disaster. The order supersedes Executive Order No. GA-08 and is effective through April 30, 2020. Executive Order No. GA-14 renews and enlarges many of the requirements outlined in Executive Order No. GA-08 enforcing federal social distancing guidelines for COVID-19, including closing schools and instructing Texans to avoid eating or drinking at bars and restaurants. The protocols allow exceptions for essential activities and services based on the Department of Homeland Security’s guidelines on the Essential Critical Infrastructure Workforce. Examples of these essential services include healthcare, grocery stores, banking and financial services, utilities, child care for essential service employees, and government services.

 Workers’ compensation insurance carrier operations

On March 25, 2020, the Commissioner of Workers’ Compensation advised that workers’ compensation insurance carriers must

• • Continue or begin providing timely claims adjusting services. Commissioner’s Bulletin # B-0010-20; and
  • Continue or begin processing and delivering indemnity benefits and medical payments in a timely manner. Commissioner’s Bulletin # B-0010-20.

Austin Representative Boxes

On March 27, 2020, in a memo to system stakeholders, the Commissioner of Workers’ Compensation advised system stakeholders that effective April 1, 2020, the Division would initiate electronic carrier representative boxes. As a result, DWC will no longer accept hand-delivered documents from carriers at the Metro service window. In addition, DWC will no longer give a paper date-stamped receipt copy of its documents. These changes will be in effect until further notice.

Flahive, Ogden, and Latson has worked round the clock since this announcement was made to assure that we were fully compliant with the new procedures for filing and receiving Austin Representative filings and other documents on April 1^st. Our Austin Representative clients have been fully protected while we have transitioned to this new procedure.

Pharmacy Authorization

On March 25, 2020, the Commissioner of Workers’ Compensation advised that workers’ compensation insurance carriers must continue or begin authorizing payments to pharmacies up to a 90-day supply for any prescription medication, subject to the remaining number of days authorized by the prescribing provider, regardless of the date the prescription was most recently filled. Commissioner’s Bulletin # B-0010-20.

COVID-19 Claims Reporting

On March 24, 2020, in a memo to system stakeholders, the Commissioner of Workers’ Compensation requested that when reporting a claim, carriers should clearly specify if a claim involves COVID19. The Commissioner said that this reporting could be done in the incident description field on the first report of injury. This was requested to help the Division monitor the impact of the pandemic event.

On March 27, 2020, in a memo to system stakeholders, the Commissioner of Workers’ Compensation encouraged workers’ compensation carriers to begin using the new International Association of Industrial Accident Boards and Commissions codes for electronic data interchange (EDI) claims reports: “cause of injury” code 83 – Pandemic and “nature of injury” code 83 – COVID-19 on April 1, 2020.

The codes should be used for COVID-19 injuries occurring on or after December 1, 2019. DWC has updated its claims EDI collection systems to accept these new code values.

Insurance carriers have been encouraged to contact their trading partners to discuss reporting these new codes. For questions, contact Martha Luevano at 512-804-4858 or martha.luevano@tdi.texas.gov.

First Responder Reimbursement

On March 30, 2020, in a memo to system stakeholders, the Commissioner of Workers’ Compensation advised system stakeholders – particularly governmental entities – that The Governor had suspended a portion of § 607.002 of the Government Code that relates to “public safety employees.” This suspension is in effect until terminated by the Office of the Governor or until the March 13, 2020, disaster declaration is lifted or expires.

In order to ensure that public safety employees of governmental entities are able to be reimbursed by their employer for reasonable medical expenses related to COVID-19, Governor Abbott has suspended Texas Government Code Sections 607.002(1) and (2) to the extent necessary to allow public safety employees, who were likely to have been exposed to COVID-19 while in the course of their employment, to be entitled to the reimbursements set forth in Section 607.002 of the Government Code.

This suspension does not impact an employee’s eligibility to workers’ compensation benefits.

On April 10, 2020, the Commissioner of Workers’ Compensation issued Commissioner’s Bulletin No. B-0019-20 regarding the suspension of a provision of Health and Safety Code and a DWC rule related to workers’ compensation. The Bulletin states that Governor Abbott suspended Health and Safety Code Section 81.050(j) and 28 Texas Administrative Code Section 122.3(c) regarding 10-day testing requirements. As symptoms of COVID-19 exposure may take over 10 days to manifest, strict compliance with these laws could prevent, hinder, or delay state efforts to provide workers’ compensation coverage for emergency responders. The bulletin is in effect for the duration of the governor’s COVID-19 declaration, or until further notice from DWC.

Tolling of Medical Billing Deadlines

On March 25, 2020, the Commissioner of Workers’ Compensation advised that a health care provider’s failure to submit a timely medical bill will be deemed an exception due to a catastrophic event under Labor Code Section 408.0272(b)(2). Commissioner’s Bulletin # B-0012-20.

Enforcement Relief

On March 25, 2020, the Commissioner of Workers’ Compensation advised that the Division will take into account the challenges system participants are facing when considering future enforcement actions. Commissioner’s Bulletin # B-0012-20.

SIBs Work Search Requirements

On March 27, 2020, Governor Abbott approved DWC’s request to suspend work search compliance standards for supplemental income benefits under Labor Code Section 408.1415(a) and 28 Texas Administrative Code Section 130.102(d). Commissioner’s Bulletin # B-0012-20.

90-Day Rule

In an FAQ published on the Division website, the DWC stated:

Q: Will 90-day finality for maximum medical improvement (MMI) and impairment rating (IR) be stopped or disputed if a DWC Form-032 is submitted?

A: Yes. System participants must dispute a first certification of MMI or assigned IR by requesting and setting a Benefit Review Conference or—if a DD has not been appointed—by submitting DWC Form-032 to request a DD exam. You fulfill the requirement to dispute a certification of MMI and IR timely if DWC receives your DWC Form-032 within 90 days from the date the first MMI or IR determination was delivered to the injured employee.

Division-Ordered Designated Doctor Exams

On March 25, 2020, the Division of Workers’ Compensation ceased ordering DD exams and began holding requests for such as exams. Commissioner’s Bulletin # B-0010-20. The agency also suspended RME, DD, and referral exams that had already been ordered. Any RME, DD, or referral exams ordered and scheduled on or before March 25, 2020, were suspended and the Division advised that those exams should not occur until further notice from DWC. Commissioner’s Bulletin # B-0010-20.

On March 27, 2020, Governor Abbott approved DWC’s request to suspend testing, training, and application requirements for designated doctor and maximum medical improvement and impairment rating recertification under 28 TAC Sections 127.110(b)(1) and (3), 127.110(d), and 180.23. Commissioner’s Bulletin # B-0012-20. The Governor also approved DWC’s request to suspend required medical exams under 28 TAC Section 126.6(a). Commissioner’s Bulletin # B-0012-20.

In answer to a series of FAQs published on the Division website, the DWC stated that:

• • Parties who had submitted a DWC-32 but had not received an order should not send a new DWC-32 during the period in which DD exam requests have been suspended.
  • Electronic signatures are acceptable on DWC-32s.
  • DWC-32s do not expire but that the Division will give further direction about whether a new request is going to be required.
  • The statutory MMI date for an injured employee is not affected by the COVID-19 emergency declaration from Governor Abbott or the Commissioner of Workers’ Compensation bulletin.
  • MMI/IR exams by a treating doctor can occur if the injured employee and the treating doctor agree, but that these exams are not allowed through telemedicine or telehealth.
  • The Division will not respond to requests to choose another DD until further notice, since all DD exams are suspended. DWC will hold requests to choose another doctor.
  • DDs must submit required reports according to regular timeframes for exams that have already happened.
  • The Division will not process requests for out-of-state DD exams until further notice.

In answer to a second series of FAQs published on the Division website, the DWC stated that

• • Injured employees should not attend RME appointments at this time. DWC suspended all RME exams that have already been ordered and suspended processing RME exam requests until further notice. Parties were instructed to contact the RME doctor assigned to your claim if they had concerns about an appointment that was already scheduled. DWC notified insurance carriers that all RME exams are suspended until further notice.
  • To ensure continued availability of an insurance carrier’s selected RME doctor, carriers should not submit any DWC Form-022s until further notice.
  • Although electronic signatures are acceptable on a DWC-22, the Division suspended processing RME requests on March 27, 2020, until further notice. Please do not send a new DWC Form-022 to the Division at this time.
  • If an RME physician has conducted an exam that did not require additional testing the physician must submit required reports according to regular timeframes for exams that have already happened.

Benefit Review Conferences

On March 13, 2020, in a memo to system stakeholders, the Commissioner of Workers’ Compensation advised that as of Monday, March 16, 2020, the Division will conduct Benefit Review Conferences by telephone.

On March 24, 2020, in a memo to system stakeholders, the Commissioner of Workers’ Compensation reminded parties that until further notice, they may file and exchange documents related to a BRC electronically, including with injured employees who have email addresses or fax numbers and agree to receive these documents electronically. She encouraged parties to use fax or encrypted email and to ensure that injured employees can access exchange documents sent electronically.

Contested Case Hearings

On March 13, 2020, in a memo to system stakeholders, the Commissioner of Workers’ Compensation advised that Contested Case Hearings scheduled for March 16-27, 2020, would be rescheduled. The Commissioner also advised that beginning March 30, 2020, CCHs would resume and would be conducted by telephone.

In that same March 13, 2020, memo to system stakeholders, the Commissioner instructed parties to send exhibits they will offer into evidence to DWC and other parties at least three business days prior to a scheduled CCH. The Commissioner encouraged parties to use encrypted email or fax when exchanging evidence.

On March 24, 2020, in a memo to system stakeholders, the Commissioner of Workers’ Compensation reminded parties that CCHs would resume on March 30, 2020, also by telephone. The Commissioner stated that until further notice, parties may file and exchange documents related to a CCH electronically, including with injured employees who have email addresses or fax numbers and agree to receive these documents electronically. She encouraged parties to use fax or encrypted email and to ensure that injured employees can access exchange documents sent electronically. Parties to CCHs must also send a copy of their exhibits to DWC and the other parties at least three working days before the CCH. The Commissioner stated that exhibits should be sent to the Division in one of the following ways:

1. Email your exhibits to CCH_Exhibits@tdi.texas.gov.
2. Fax your exhibits to 512-804-4011. Sometimes, faxes over 40 pages long can be interrupted. You should break your fax into sections and place a cover page on each section. Identify the claim number and which section you are faxing (for example, Section 1 of 4, Section 2 of 4, and so on).
3. SFTP—if you have an account with DWC, you can upload your exhibits by SFTP.

Telemedicine

On March 13, 2020, in a memo to system stakeholders, the Commissioner of Workers’ Compensation advised that injured employees may receive telemedicine and telehealth services in the Texas workers’ compensation system regardless of geographic location.

On April 2, 2020, in a memo to system stakeholders, the Commissioner of Workers’ Compensation advised that CMS had issued a new list of telemedicine and telehealth services that can be reimbursed through Medicare during the federally-declared Public Health Emergency for COVID-19. New service codes primarily include Evaluation and Management, as well as Physical Medicine and Rehabilitation. Health care providers can be reimbursed for the newly listed services rendered on or after March 31, 2020. The complete list of covered telemedicine and telehealth service codes is available on the DWC telemedicine webpage.

On April 13, 2020, in a memo to system stakeholders, the Deputy Commissioner for Legal Services advised that the Division had adopted new Rule §167.1 on an emergency basis. The rule relates to telemedicine and telehealth and will go into effect immediately for physical medicine and rehabilitation services provided on or after April 13, 2020. The new rule builds on the existing telemedicine and telehealth rules by creating an exception to current CMS distant site practitioner requirements. This rule allows health care providers licensed to perform physical medicine and rehabilitation services, including physical therapists, occupational therapists, and speech pathologists to bill and be reimbursed for services currently allowed under CMS telemedicine and telehealth billing codes.

In answer to a series of FAQs published on the Division website, the DWC stated that

• • This emergency rule goes into effect immediately for services provided on or after April 13, 2020, and is effective for 120 days. The Commissioner of Workers’ Compensation may extend the emergency rule for 60 more days.
  • The list of approved telemedicine and telehealth codes is available on the Division of Workers’ Compensation’s (DWC) telemedicine/telehealth web page. See the “covered list of telehealth and telemedicine services.”
  • You can find the changes to the Centers for Medicare & Medicaid Services (CMS) telehealth requirements on the Federal Register web page.
  • The DWC emergency rule allows health care providers who are licensed to perform physical medicine and rehabilitation services to bill and be reimbursed for these services conducted through telemedicine or telehealth. They must use CMS’s revised list of covered telehealth services. This includes physical therapists, occupational therapists, and speech-language therapists.
  • The originating site is the location of the patient, and the distant site is the location of the eligible health care provider. According to CMS, authorized originating sites are generally limited to:

• • • physicians or practitioner offices;
    • hospitals;
    • critical access hospitals (CAH);
    • rural health clinics;
    • federally qualified health centers;
    • hospital-based or CAH-based renal dialysis centers, including satellites;
    • skilled nursing facilities; and
    • community mental health centers.

• • DWC’s emergency telemedicine and telehealth rules do not require an injured employee to receive telemedicine or telehealth services at an authorized originating site. DWC also does not have a geographic restriction on telemedicine or telehealth services.
  • Since the expansion of telehealth services is intended to encourage social distancing practices between injured employees and health care providers, DWC’s emergency telemedicine and telehealth services rule does not authorize the reimbursement of an originating site facility fee.
  • Health care providers must be allowed by their licensing board and DWC rules to provide telemedicine or telehealth services in workers’ compensation. See DWC Telemedicine rule here.
  • Synchronous telemedicine and telehealth means using real-time audio and visual interaction between the health care provider and the patient.
  • Asynchronous telemedicine and telehealth are generally “store-and-forward” technologies that collect images and data to be transmitted and interpreted later by the health care provider, and include methods that are not real-time
  • CMS does not allow for reimbursement of asynchronous telemedicine or telehealth services. DWC’s emergency rule states that only synchronous telemedicine and telehealth services conducted by real-time audio and visual interaction between a health care provider and a patient in a separate location may be reimbursed.

Filing Fees and Payments

On March 27, 2020, in a memo to system stakeholders, the Commissioner of Workers’ Compensation advised system stakeholders that if a DWC filing requires a payment by check, such as DWC Form-155, Request for Record Check or DWC Form-156, Prospective Employment Authorization and Certification, they may submit the filing without payment.

Signatures and Sworn Statements, Affidavits, and Notarization

On March 27, 2020, in a memo to system stakeholders, the Commissioner of Workers’ Compensation advised system stakeholders that they may submit filings and consent orders with electronic signatures and without sworn statements, affidavits, or notarization until further notice. These include:

• DWC Form-153, Request for Copies of Confidential Claimant Information;
• DWC Form-155, Request for Record Check; and
• DWC Form-156, Prospective Employment Authorization and Certification.

In addition, until further notice, DWC will also accept these forms by fax, without the need to mail the original form. Parties may fax these forms to 512-804-4146.