Current through Reg. 49, No. 38; September 20, 2024
(a) Authorization
to receive documents. The designated doctor is authorized under Labor Code
§
408.0041(c)
to receive the injured employee's confidential medical records and analyses of
the injured employee's medical condition, functional abilities, and
return-to-work opportunities without a signed release from the injured employee
to help resolve a dispute under this subchapter. The following requirements
apply to the designated doctor's receipt of medical records and analyses:
(1) The treating doctor and insurance carrier
must provide the designated doctor copies of all the injured employee's medical
records in their possession relating to the medical condition to be evaluated
by the designated doctor.
(A) For subsequent
examinations with the same designated doctor, the treating doctor and insurance
carrier must provide only those medical records not previously sent.
(B) The cost of copying must be reimbursed in
accordance with §
134.120 of this title (relating to
Reimbursement for Medical Documentation).
(2) The treating doctor and insurance carrier
may also send the designated doctor an analysis of the injured employee's
medical condition, functional abilities, and return-to-work opportunities.
(A) The analysis sent by any party may only
cover the injured employee's medical condition, functional abilities, and
return-to-work opportunities as provided in Labor Code §
408.0041. The analysis may
include supporting information, such as videotaped activities of the injured
employee and marked copies of medical records.
(B) If the insurance carrier sends an
analysis to the designated doctor, the insurance carrier must send a copy to
the treating doctor, the injured employee, and the injured employee's
representative, if any.
(C) If the
treating doctor sends an analysis to the designated doctor, the treating doctor
must send a copy to the insurance carrier, the injured employee, and the
injured employee's representative, if any.
(3) The treating doctor and insurance carrier
must ensure that the designated doctor receives the required records and
analyses (if any) no later than three working days before the date of the
designated doctor examination.
(A) If the
designated doctor has not received the medical records or any part of them at
least three working days before the examination, the designated doctor must
report this violation to the division within one working day of not timely
receiving the records.
(B) Once
notified, the division will take action necessary to ensure that the designated
doctor receives the records.
(C) If
the designated doctor does not receive the medical records within one working
day of the examination or does not have sufficient time to review the late
medical records before the examination, the designated doctor must reschedule
the examination to occur no later than 21 days after receiving the
records.
(b)
Requirement to review information. Before examining an injured employee, the
designated doctor must review the injured employee's medical records, including
any analysis of the injured employee's medical condition, functional abilities,
and return to work opportunities that the insurance carrier and treating doctor
provide in accordance with subsection (a) of this section, and any materials
the division submits to the doctor.
(1) The
designated doctor must also review the injured employee's medical condition,
history, and any medical records the injured employee provides and must perform
a complete physical examination of the injured employee.
(2) The designated doctor must give the
medical records reviewed the weight the designated doctor determines to be
appropriate.
(c)
Additional testing and referrals. The designated doctor must perform additional
testing when necessary to resolve the issue in question. The designated doctor
must also refer an injured employee to other health care providers when the
referral is necessary to resolve the issue in question, and the designated
doctor is not qualified to fully resolve it.
(1) Any additional testing or referrals
required for the evaluation are not subject to preauthorization
requirements.
(2) Payment for
additional testing or referrals that the designated doctor has determined are
necessary under this subsection must not be denied prospectively or
retrospectively, regardless of any potential disagreements about medical
necessity, extent of injury, or compensability.
(3) Any additional testing or referrals
required for the evaluation are subject to the requirements of §
180.24 of this title (relating to
Financial Disclosure).
(4) Any
additional testing or referrals required for the evaluation of an injured
employee under a certified workers' compensation network under Insurance Code
Chapter 1305 or a political subdivision under Labor Code §
504.053(b):
(A) are not required to use a provider in the
same network as the injured employee; and
(B) are not subject to the network or
out-of-network restrictions in Insurance Code §
1305.101 (relating to
Providing or Arranging for Health Care).
(5) Any additional testing or referral
examination and the designated doctor's report must be completed within 15
working days of the designated doctor's physical examination of the injured
employee unless the designated doctor receives division approval for additional
time before the 15 working days expire.
(6) If the injured employee fails or refuses
to attend the designated doctor's requested additional testing or referral
examination within 15 working days or within the additional time the division
approved, the designated doctor must complete the report based on the
designated doctor's examination of the injured employee, the medical records
received, and other information available to the doctor and indicate the
injured employee's failure or refusal to attend the testing or referral
examination in the report.
(d) MMI and impairment ratings. Any
evaluation relating to either MMI, an impairment rating, or both, must be
conducted in accordance with §
130.1 of this title (relating to
Certification of Maximum Medical Improvement and Evaluation of Permanent
Impairment). For examinations conducted under this subsection on or after June
5, 2023, the designated doctor may provide multiple certifications of MMI and
impairment ratings only when directed by the division.
(e) Reports on MMI and impairment ratings. A
designated doctor who determines the injured employee has reached MMI, assigns
an impairment rating, or determines the injured employee has not reached MMI,
must complete and file a report as required by §
130.1 and §
130.3 of this title (relating to
Certification of Maximum Medical Improvement and Evaluation of Permanent
Impairment by a Doctor Other than the Treating Doctor).
(1) If the designated doctor provides
multiple certifications of MMI and impairment ratings, the designated doctor
must file a Report of Medical Evaluation under §
130.1(d) of this
title for each assigned impairment rating and a designated doctor examination
data report under §
127.220 of this title (relating to
the Designated Doctor Reports) for the doctor's extent of injury
determination.
(2) The designated
doctor must submit only one narrative report required by §
130.1(d)(1)(B) of
this title on all assigned impairment ratings and extent of injury
findings.
(3) All designated doctor
narrative reports submitted under this subsection must comply with the
requirements of §
127.220(a) of
this title (relating to Designated Doctor Reports).
(f) Reports on return to work. A designated
doctor who examines an injured employee for any question relating to return to
work must complete a Work Status Report that complies with §
129.5 of this title (relating to
Work Status Reports) and a narrative report that complies with the requirements
of §
127.220(a) of
this title. The designated doctor must file the work status report and the
narrative report together within seven working days of the date the designated
doctor examines the injured employee.
(1) The
designated doctor must file the reports with the treating doctor, the division,
and the insurance carrier by fax or electronic transmission.
(2) The designated doctor must file the
reports with the injured employee and the injured employee's representative (if
any) by fax or electronic transmission if the designated doctor has a fax
number or email for the recipient.
(3) If the designated doctor has no fax
number or email for a recipient, the designated doctor must send them the
reports by other verifiable means.
(g) Report on other issues. A designated
doctor who resolves questions on issues other than those listed in subsections
(d), (e), and (f) of this section must file a designated doctor examination
data report that complies with §
127.220(c) of
this title and a narrative report that complies with §
127.220(a) of
this title within seven working days of the date the designated doctor examines
the injured employee.
(1) The designated
doctor must file these reports with the treating doctor, the division, and the
insurance carrier by fax or electronic transmission.
(2) The designated doctor must provide these
reports to the injured employee and the injured employee's representative (if
any) by fax or electronic transmission if the designated doctor has a fax
number or email for the recipient.
(3) If no fax number or email is provided for
the recipient, the designated doctor must send the reports by other verifiable
means.
(h) Presumptive
weight. The designated doctor's report is given presumptive weight on the issue
or issues the designated doctor was properly appointed to address, unless the
preponderance of the evidence is to the contrary.
(i) Payment of benefits during dispute. The
insurance carrier must pay all benefits, including medical benefits, in
accordance with the designated doctor's report for the issue or issues in
dispute.
(1) If the designated doctor provides
multiple certifications of MMI and impairment ratings, the insurance carrier
must pay benefits based on the conditions to which the designated doctor
determines the compensable injury extends.
(2) For medical benefits, the insurance
carrier has 21 days from receipt of the designated doctor's report to reprocess
all medical bills previously denied for reasons inconsistent with the
designated doctor's findings. By the end of this period, insurance carriers
must pay these medical bills in accordance with the Labor Code and Chapters 133
and 134 of this title.
(3) The
insurance carrier must pay all other benefits no later than five days after
receiving the report.
(j)
Record retention. The designated doctor must maintain accurate records for, at
a minimum, five years from the anniversary date of the date of the designated
doctor's last examination of the injured employee.
(1) This requirement does not reduce or
replace any other record retention requirements imposed on a designated doctor
by an appropriate licensing board.
(2) These records must include the injured
employee's medical records, any analysis the insurance carrier or treating
doctor submits (including supporting information), reports the designated
doctor generates as a result of the examination, and narratives the insurance
carrier and treating doctor provide, to reflect:
(A) the date and time of any designated
doctor appointments scheduled with an injured employee;
(B) the circumstances for a cancellation,
no-show, or other situation where the examination did not occur as initially
scheduled or rescheduled, and if applicable, documentation of the agreement to
reschedule the examination and the notice that the doctor provided to the
division, the injured employee's treating doctor, and the insurance carrier
within 24 hours of rescheduling an appointment;
(C) the date of the examination;
(D) the date the designated doctor received
medical records from the treating doctor or any other person;
(E) the date the designated doctor submitted
the reports described in subsections (d), (e), and (f) of this section to all
required parties and documentation that these reports were submitted to the
division, treating doctor, and insurance carrier by fax or electronic
transmission and to other required parties by verifiable means;
(F) if applicable, the names of any referral
health care providers the designated doctor used, the dates of referral health
care provider appointments, and the reason the designated doctor referred them;
and
(G) if applicable, the date the
doctor contacted the division for assistance in getting medical records from
the insurance carrier or treating doctor.
(k) Dispute resolution. Parties may dispute
any entitlement to benefits affected by a designated doctor's report through
the dispute resolution processes outlined in Chapters 140-144 and 147 of this
title (relating to dispute resolution processes, proceedings, and
procedures).
