The Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) is accepting comments on informally proposed rule 28 Texas Administrative Code (TAC) §130.1 regarding Certification of Maximum Medical Improvement and Evaluation of Permanent Impairment.  The informal working draft rule can be viewed on the TDI website at http://www.tdi.state.tx.us/wc/rules/drafts.html.  The comment period closes Monday, March 1, 2010 at 5p.m. (Central Standard Time).

This informal working draft rule is not a formal rule proposal.  Accordingly, your response will not be treated as a formal public comment for the purposes of the Administrative Procedure Act.  In addition, you will also have the opportunity to make formal comments after the rules are formally proposed and officially published in the Texas Register.  The TDI-DWC anticipates formal publication of the rule in calendar year 2010.  The informal working draft may contain drafting notes and formatting which will be changed as necessary to comply with the Texas Register formatting.

Comments may be submitted to TDI-DWC by e-mailing InformalRuleComments@tdi.state.tx.us or by mailing or delivering the comments to Maria Jimenez at:

Texas Department of Insurance, Division of Workers’ Compensation

Workers’ Compensation Counsel, MS - 4D

7551 Metro Center Drive, Suite 100

Austin, Texas 78744 -1645

The purpose of the informal working draft rule is to request input from workers’ compensation system participants regarding the 4th, 5th, and 6th edition of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment.  The TDI-DWC plans to propose this rule in order to reflect changes made by the AMA to the guides for evaluating and determining permanent impairment.

The TDI-DWC asks that the following be considered when reviewing the informal working draft rule and when providing comments:

o   Impact on the adequacy of income benefits:

o   Which edition produces impairment ratings that adequately compensate injured employees for permanent impairments resulting from a compensable injury under the current statutory income benefit structure in Texas (i.e., which edition more accurately compensates injured employees for economic duress that occurs or may occur as a result of the permanent impairment)?

o   What impact, if any, will a change in the AMA Guides have on the average impairment rating?

o   Are there categories of injuries that will be overcompensated or under-compensated when using a certain edition of the AMA Guides?

o   What impact, if any, will a change in the AMA Guides have on the number of injured employees who qualify for Supplemental Income Benefits?  What are the pros and cons of that impact, if any?

o   What impact, if any, will a change in the AMA Guides have on Maximum Medical Improvement (MMI) determinations?  Will a different edition of the AMA Guides result in earlier determinations of MMI for injured employees?

o   Will the impact, if any, on the adequacy of income benefits be immediate or will there be a graduated impact over time?

o   Impact on return-to-work outcomes:

o   Would a change in the AMA Guides have a positive, negative or no impact on return-to-work outcomes overall? 

o   If a positive or negative impact, would this impact be significant and sustaining or temporary?

o   If a positive or negative impact, what categories of injuries or industries will be impacted the most?

o   Impact on cost:

o   What cost impact, if any, would a change in the AMA Guides have on:

Ø  Temporary Income Benefits (TIBs)

Ø  Impairment Income Benefits (IIBs)

Ø  Supplemental Income Benefits (SIBs)

Ø  Medical costs (e.g., diagnostic tests)

Ø  Insurance rates and premiums

o   Will the cost impact, if any, be immediate or will there be a graduated impact over time?

o   Impact on disputes:

o   Which edition of the AMA Guides produces better inter-rater consistency?

o   What impact, if any, will a change in the AMA Guides have on the number of requests for designated doctor examinations?

o   What impact, if any, will a change in the AMA Guides have on the number of impairment rating and MMI disputes seen in the workers’ compensation system?

o   Will the dispute impact, if any, be immediate or will there be a graduated impact over time?

o   Impact on health care providers:

o   If a change to the AMA Guides was enacted, what training and testing requirements are needed for evaluating health care providers?

o   If a change to the AMA Guides was enacted, what effective date should be considered to provide adequate time for health care providers to be trained and tested?

o   General impact:

o   Overall, what are the advantages and drawbacks to: 1) staying with the 4th edition; 2) using the 5th edition; or 3) using the 6th edition of the AMA Guides?

o   Which edition of the AMA Guides most accurately represents “evidence-based medicine?”

o   Does the 5th or 6th edition of the AMA Guides represent the most modern medical science in terms of disability evaluation?  Why or why not?

If there are any questions regarding the information in this memo, contact Amy Lee at 512-804-4410 or by e-mail at Amy.Lee@tdi.state.tx.us or Dr. Bill Defoyd at 512-804-4875 or by e-mail at Bill.Defoyd@tdi.state.tx.us.