DWC Commissioner Hosted Insurance Carrier/Stakeholder Conference Call to Discuss COVID-19 Operations

Texas Commissioner of Workers’ Compensation Cassie Brown and senior members of her staff hosted a conference call in response to various inquiries her office had received over the last couple of weeks concerning COVID – 19. Additional calls are expected in the future to apprise stakeholders of developing events and of DWC’s expectations by system participants during this period.

The following were issues that were discussed during the conference call:

1. Commissioner Brown made it clear that COVID – 19 claims are covered as presumption claims in Chapter 607 of the Government Code. While she did not especially identify the specific section of the Government Code, it is fairly clear that the reference was to §607.054 (tuberculosis or other respiratory illness) that section provides the following: A firefighter, peace officer, or emergency medical technician who suffers from tuberculosis, or any other disease or illness of the lungs or respiratory tract that has a statistically positive correlation with service as a firefighter, peace officer, or emergency medical technician, that results in death or total or partial disability is presumed to have contracted the disease or illness during the course and scope of employment as a firefighter, peace officer, or emergency medical technician. Commissioner Brown expects the carriers to investigate and make decisions concerning those claims in a prompt manner;

2. Electronic exchanges – Parties may file and exchange documents electronically, and this includes exchanges with injured employees. CCH exhibits can be sent to DWC via email, fax or SFTP;

3. Extension of carrier deadlines – There is no extension of a carrier’s deadlines. However, specific logistical issues facing carriers as a result of COVID – 19 will be taken into consideration in assessing future violations/penalties. An example of issues facing carriers include office closures and staffing issues;

4. Performance Based Oversight (PBO) Assessment – No decision has been made on whether DWC is going to cancel PBO which covers the periods of January 1, 2020 through June 30, 2020. Although Commissioner Brown did not discuss it, we know that there have been internal discussions within DWC of possible steps to be taken;

5. Enforcement operations – System Operations are continuing. Although it was not discussed, we believe that DWC will change its current Document Request Letter procedure to increase the response time from 10 days to something in the range of 14 days;

6. Extending EDI reporting deadlines – DWC is not extending them at this time. However, as with the carrier’s other deadlines, DWC will consider mitigating circumstances on a case by case basis;

7. Extending the deadline for a carrier’s utilization review agent to respond to requests for preauthorization – The timeline is not being extended at this time. Commissioner Brown specifically noted that an extension of time was not needed because the URA determinations are generally paper reviews. However, Deputy Commissioner Matt Zurek subsequently stated that the carrier’s URAs were still expected to engage in peer to peer contact with the requesting provider prior to the issuance of an adverse determination. See rule 134.600 (m);

8. Appeal deadlines – DWC is not extending any appeal deadlines at this time;

9. Designated doctor exams and required medical exams – Those exams were cancelled/suspended on March 25, 2020. DWC does not know when they will resume. However, if a party is disputing the first certification/impairment rating and a designated doctor was not previously appointed, the parties should still file a DWC-32. It is the filing of it that will stop the 90 day period. DWC will continue/reset BRCs and CCHs if there is no ability to obtain a designated doctor exam or a post designated doctor required medical exam. However, we expect that the party seeking the exam will need to file a request to reset the BRC or file a motion to continue the CCH. The Commissioner made reference to overpayments and that the carriers can seek reimbursement from the Subsequent Injury Fund. She did not explain the exact scenario but she is most likely notifying the system participants that if the carrier reverses or modifies the designated doctor’s opinion, then the carrier may pursue reimbursement from the Subsequent Injury Fund based upon monies previously paid pursuant to that reversed or modified opinion;

10. Telemedicine – is already permitted and this is regardless of geographic location. DWC is considering all options to try and expand telemedicine while an injured employee continues to receive quality care necessary to return to work. The DWC website has a page on telemedicine and the billing practices;

11. 90 day prescriptions – If a prescription provides for three refills for 30 days each, a 90 day supply of that medication can be issued;

12. Meeting audit deadlines – DWC’s Audits and Investigations group will continue to conduct audits. If the carriers are unable to meet the audit deadlines, the carrier should request an extension. If the request is reasonable, it will be approved;

13. Correspondence with injured employees and with health care providers – Correspondence requiring written documentation will continue to be required. Parties should use fax or encrypted emails, if possible;

14. CCH continuances – If a party cannot secure a designated doctor exam or a required medical exam, the CCHs are not automatically continued but will be continued on the basis of good cause;

15. Telephonic hearings – DWC is considering two options. A uniform procedure should be in place in the next few days;

16. Meeting concerning proposed changes to interrogatories – The meeting that was previously scheduled for March 31, 2020 will be rescheduled;

17. Open record requests – According to the Commissioner, there should be no delays in responding to open record requests.

The conference call was scheduled for one hour. Following the Commissioner’s comments, there was a short period for questions and answers. The more significant questions and answers are as follows:

1. Whether DWC was considering relaxing rules relating to telemedicine when conducting MMI evaluations. The DWC response was that they were exploring it to see whether they could expand telemedicine into a number of area. Although it was not discussed during the conference call, there are those within the Division who believe that it would be extremely difficult to conduct MMI evaluations via telemedicine due to a number of problems including taking range of motions measurements from a remote site.

2. Network report card – return to work measures may be distorted. Commissioner Brown indicated that DWC would look at the data as it came in.

Following the conference call, DWC ceased all hand-deliveries and as of April 1, 2020, DWC deliveries and receipts of DWC mail are completely electronic.

Health care providers have up to 95 days to submit medical bills to a carrier. However, a DWC bulletin has extended the deadline. DWC explained the result as follows: The DWC bulletin stopped the clock such that if a health care provider provided treatment the day before the bulletin, the day before would be day one, the day the bulletin ends would be day two. In other words, during the period covered by the bulletin it tolls the deadline.

The conference call took place the afternoon of March 30, 2020. As new challenges arise, we expect additional instructions from DWC, some of which may result in DWC reversing or modifying some of the positions it took on March 30, 2020.