By Stuart D. Colburn, Esq., Shareholder, Downs Stanford
The preamble to New Rule 137.5 is causing a controversy and perhaps a significant increase in costs to employers and carriers.
Tex. Lab. Code Sec. 413.021(a), states: "The insurance carrier shall evaluate a compensable injury in which the injured employee sustains an injury that could potentially result in lost time from employment as early as practicable to determine if skilled case management is necessary for the injured employee's case. As necessary, case managers who are appropriately certified shall be used to perform these evaluations. A claims adjuster may not be used as a case manager." [emphasis added]. This one of many reforms intended to increase return to work outcomes in Texas.
The Division of Workers' Compensation (DWC) and stakeholders struggled with the rule development because of the lack of appropriately certified case managers in Texas. Eventually, DWC allowed skilled, non-certified nurse case managers working under the supervision of a certified case manager to work for an aggregate of 24 months. This compromise allowed nurse case managers sufficient time to obtain their certifications. The adopted "Case Manager Certification" rule serves largely to set out the certification requirements for those individuals providing case management services in the workers' compensation context. Subsection (d), which implements 2005 statutory amendments to Tex. Lab. Code §413.021, reads as follows: "When conducting evaluations to determine if case management services are required, insurance carriers shall utilize case managers who are certified in accordance with Subsection (c) of this section." Many read the statute and the rule's provisions together that when an insurance carrier finds it necessary to use a case manager to perform what the Division is calling "case management evaluations," it will use one that meets the certification requirements now outlined in DWC Rule 137.5.
But, the controversy is found in the Preamble to Rule 137.5. The Preamble states, "The Division has determined that requiring appropriately certified case managers when providing all case management activities is consistent with the legislative intent to provide quality case management for all injured employees." It appears the Division intends Subsection (d) to mean that a certified case manager must be used for all "case management evaluations," despite the Legislature's use of the discretionary term "as necessary."
The Preamble is neither the law nor a part of the rule. But some commentators believe DWC is placing some controversial language into a Preamble instead of the rule. (A recent Appeal Panel decision cited the Preamble to a Rule 141.1 for support of its opinion about the Rule. The decision-makers cite the Preamble as law, making the Preamble language the legal equivalent of the properly promulgated rule. Some suggest the old TWCC did the same with TWCC Advisories and AP decisions.)
Requiring a certified self-insured employer or a carrier to pay case managers to review every claim with potential lost time to determine if skilled case management services are necessary adds costs to every lost time case. Reportedly, the DWC did inform stakeholders at the DWC Conference that carriers did not have to follow the nurse case evaluation recommendation.
Carriers are urged to review their workflows to ensure they are complying with new Rule 137.5, the Case Manager Certification Rule.
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