An Analysis of COVID-19 Orders and Bulletins
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.
Declaration of Disaster
On March 13, 2020, Governor Greg Abbott declared COVID-19 to be a statewide public health disaster.
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 1st. 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.
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.
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.
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