CHAPTER 404. OFFICE OF INJURED EMPLOYEE COUNSEL - Texas Statutes

LABOR CODE

TITLE 5. WORKERS' COMPENSATION

SUBTITLE A. TEXAS WORKERS' COMPENSATION ACT

CHAPTER 404. OFFICE OF INJURED EMPLOYEE COUNSEL

SUBCHAPTER A. OFFICE; GENERAL PROVISIONS

Sec. 404.001. DEFINITIONS. In this chapter:

(1) "Office" means the office of injured employee counsel.

(2) "Public counsel" means the injured employee public counsel.

Added by Acts 2005, 79th Leg., Ch.

265, Sec. 3.016, eff. September 1, 2005.

Sec. 404.002. ESTABLISHMENT OF OFFICE; ADMINISTRATIVE ATTACHMENT

TO TEXAS DEPARTMENT OF WORKERS' COMPENSATION. (a) The office of

injured employee counsel is established to represent the

interests of workers' compensation claimants in this state.

(b) The office is administratively attached to the department

but is independent of direction by the commissioner, the

commissioner of insurance, and the department.

(c) The department shall provide the staff and facilities

necessary to enable the office to perform the duties of the

office under this subtitle, including:

(1) administrative assistance and services to the office,

including budget planning and purchasing;

(2) personnel services; and

(3) computer equipment and support.

(d) The public counsel may enter into interagency contracts and

other agreements with the commissioner of workers' compensation

and the commissioner of insurance as necessary to implement this

chapter.

Added by Acts 2005, 79th Leg., Ch.

265, Sec. 3.016, eff. September 1, 2005.

Sec. 404.003. SUNSET PROVISION. The office of injured employee

counsel is subject to Chapter 325, Government Code (Texas Sunset

Act). Unless continued in existence as provided by that chapter,

the office is abolished and this chapter expires September 1,

2011.

Added by Acts 2005, 79th Leg., Ch.

265, Sec. 3.016, eff. September 1, 2005.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

928, Sec. 3.10, eff. June 15, 2007.

Sec. 404.004. PUBLIC INTEREST INFORMATION. (a) The office

shall prepare information of public interest describing the

functions of the office.

(b) The office shall make the information available to the

public and appropriate state agencies.

Added by Acts 2005, 79th Leg., Ch.

265, Sec. 3.016, eff. September 1, 2005.

Sec. 404.005. ACCESS TO PROGRAMS AND FACILITIES. (a) The

office shall prepare and maintain a written plan that describes

how a person who does not speak English can be provided

reasonable access to the office's programs.

(b) The office shall comply with federal and state laws for

program and facility accessibility.

Added by Acts 2005, 79th Leg., Ch.

265, Sec. 3.016, eff. September 1, 2005.

Sec. 404.006. RULEMAKING. (a) The public counsel shall adopt

rules as necessary to implement this chapter.

(b) Rulemaking under this section is subject to Chapter 2001,

Government Code.

Added by Acts 2005, 79th Leg., Ch.

265, Sec. 3.016, eff. September 1, 2005.

SUBCHAPTER B. INJURED EMPLOYEE PUBLIC COUNSEL

Sec. 404.051. APPOINTMENT; TERM. (a) The governor, with the

advice and consent of the senate, shall appoint the injured

employee public counsel. The public counsel serves a two-year

term that expires on February 1 of each odd-numbered year.

(b) The governor shall appoint the public counsel without regard

to the race, color, disability, sex, religion, age, or national

origin of the appointee. Section 401.011(16) does not apply to

the use of the term "disability" in this subchapter.

(c) If a vacancy occurs during a term, the governor shall fill

the vacancy for the unexpired term.

(d) In appointing the public counsel, the governor may consider

recommendations made by groups that represent wage earners.

Added by Acts 2005, 79th Leg., Ch.

265, Sec. 3.016, eff. September 1, 2005.

Sec. 404.052. QUALIFICATIONS. To be eligible to serve as public

counsel, a person must:

(1) be a resident of Texas;

(2) be licensed to practice law in this state;

(3) have demonstrated a strong commitment to and involvement in

efforts to safeguard the rights of the working public;

(4) have management experience;

(5) possess knowledge and experience with the workers'

compensation system; and

(6) have experience with legislative procedures and

administrative law.

Added by Acts 2005, 79th Leg., Ch.

265, Sec. 3.016, eff. September 1, 2005.

Sec. 404.053. BUSINESS INTEREST; SERVICE AS PUBLIC COUNSEL. A

person is not eligible for appointment as public counsel if the

person or the person's spouse:

(1) is employed by or participates in the management of a

business entity or other organization that holds a license,

certificate of authority, or other authorization from the

department or division or that receives funds from the department

or division;

(2) owns or controls, directly or indirectly, more than a 10

percent interest in a business entity or other organization

receiving funds from the department, division, or the office; or

(3) uses or receives a substantial amount of tangible goods or

funds from the department, division, or the office, other than

compensation or reimbursement authorized by law.

Added by Acts 2005, 79th Leg., Ch.

265, Sec. 3.016, eff. September 1, 2005.

Sec. 404.054. LOBBYING ACTIVITIES. A person may not serve as

public counsel if the person is required to register as a

lobbyist under Chapter 305, Government Code, because of the

person's activities for compensation related to the operation of

the department, the division, or the office.

Added by Acts 2005, 79th Leg., Ch.

265, Sec. 3.016, eff. September 1, 2005.

Sec. 404.055. GROUNDS FOR REMOVAL. (a) It is a ground for

removal from office that the public counsel:

(1) does not have at the time of appointment or maintain during

service as public counsel the qualifications required by Section

404.052;

(2) violates a prohibition established by Section 404.053,

404.054, 404.056, or 404.057; or

(3) cannot, because of illness or disability, discharge the

public counsel's duties for a substantial part of the public

counsel's term.

(b) The validity of an action of the public counsel or the

office is not affected by the fact that the action is taken when

a ground for removal of the public counsel exists.

Added by Acts 2005, 79th Leg., Ch.

265, Sec. 3.016, eff. September 1, 2005.

Sec. 404.056. PROHIBITED REPRESENTATION OR EMPLOYMENT. (a) A

former public counsel may not make any communication to or

appearance before the division, the department, the commissioner,

the commissioner of insurance, or an employee of the division or

the department before the second anniversary of the date the

person ceases to serve as public counsel if the communication or

appearance is made:

(1) on behalf of another person in connection with any matter on

which the person seeks official action; or

(2) with the intent to influence a commissioner or commissioner

of insurance decision or action, unless the person is acting on

the person's own behalf and without remuneration.

(b) A former public counsel may not represent any person or

receive compensation for services rendered on behalf of any

person regarding a matter before the division or the department

before the second anniversary of the date the person ceases to

serve as public counsel.

(c) A person commits an offense if the person violates this

section. An offense under this section is a Class A misdemeanor.

(d) A former employee of the office may not:

(1) be employed by an insurance carrier regarding a matter that

was in the scope of the employee's official responsibility while

the employee was associated with the office; or

(2) represent a person before the division or the department or

a court in a matter:

(A) in which the employee was personally involved while

associated with the office; or

(B) that was within the employee's official responsibility while

the employee was associated with the office.

(e) The prohibition of Subsection (d)(1) applies until the first

anniversary of the date the employee's employment with the office

ceases.

(f) The prohibition of Subsection (d)(2) applies to a current

employee of the office while the employee is associated with the

office and at any time after.

Added by Acts 2005, 79th Leg., Ch.

265, Sec. 3.016, eff. September 1, 2005.

Sec. 404.057. TRADE ASSOCIATIONS. (a) In this section, "trade

association" means a nonprofit, cooperative, and voluntarily

joined association of business or professional competitors

designed to assist its members and its industry or profession in

dealing with mutual business or professional problems and in

promoting their common interest.

(b) A person may not serve as public counsel if the person has

been, within the previous two years:

(1) an officer, employee, or paid consultant of a trade

association in the field of workers' compensation; or

(2) the spouse of an officer, manager, or paid consultant of a

trade association in the field of workers' compensation.

Added by Acts 2005, 79th Leg., Ch.

265, Sec. 3.016, eff. September 1, 2005.

SUBCHAPTER C. GENERAL POWERS AND DUTIES OF OFFICE

Sec. 404.101. GENERAL DUTIES. (a) The office shall, as

provided by this subtitle:

(1) provide assistance to workers' compensation claimants;

(2) advocate on behalf of injured employees as a class regarding

rulemaking by the commissioner and commissioner of insurance

relating to workers' compensation;

(3) assist injured employees with contacting appropriate

licensing boards for complaints against a health care provider;

and

(4) assist injured employees with referral to local, state, and

federal financial assistance, rehabilitation, and work placement

programs, as well as other social services that the office

considers appropriate.

(b) The office:

(1) may assess the impact of workers' compensation laws, rules,

procedures, and forms on injured employees in this state; and

(2) shall, as provided by this subtitle:

(A) monitor the performance and operation of the workers'

compensation system, with a focus on the system's effect on the

return to work of injured employees;

(B) assist injured employees, through the ombudsman program,

with the resolution of complaints pending at the division or

department;

(C) assist injured employees, through the ombudsman program, in

the division's administrative dispute resolution system; and

(D) advocate in the office's own name positions determined by

the public counsel to be most advantageous to a substantial

number of injured employees.

(c) The office may not appear or intervene, as a party or

otherwise, before the commissioner, commissioner of insurance,

division, or department on behalf of an individual injured

employee, except through the ombudsman program.

Added by Acts 2005, 79th Leg., Ch.

265, Sec. 3.016, eff. September 1, 2005.

Sec. 404.1015. REFUSAL TO PROVIDE OR TERMINATION OF SERVICES.

(a) The public counsel may refuse to provide or may terminate

the services of the office to any claimant who:

(1) is abusive or violent to or who threatens any employee of

the office;

(2) requests assistance in claiming benefits not provided by

law; or

(3) commits or threatens to commit a criminal act in pursuit of

a workers' compensation claim.

(b) If the public counsel determines under Subsection (a) that

the services of the office should be refused or terminated, the

office shall inform the affected claimant in writing and notify

the division.

(c) The office shall notify and cooperate with the appropriate

law enforcement authority and the Department of Insurance, Fraud

Unit, if the office becomes aware that the claimant or a person

acting on the claimant's behalf commits or threatens to commit a

criminal act.

Added by Acts 2009, 81st Leg., R.S., Ch.

1261, Sec. 1, eff. September 1, 2009.

Sec. 404.102. GENERAL POWERS AND DUTIES OF PUBLIC COUNSEL. The

public counsel shall administer and enforce this chapter,

including preparing and submitting to the legislature a budget

for the office and approving expenditures for professional

services, travel, per diem, and other actual and necessary

expenses incurred in administering the office.

Added by Acts 2005, 79th Leg., Ch.

265, Sec. 3.016, eff. September 1, 2005.

Sec. 404.103. OPERATION OF OMBUDSMAN PROGRAM. (a) The office

shall operate the ombudsman program under Subchapter D.

(b) The public counsel shall assign staff attorneys, as the

public counsel considers appropriate, to supervise the work of

the ombudsman program and advise ombudsmen in providing

assistance to claimants and preparing for informal and formal

hearings.

(c) The office shall coordinate services provided by the

ombudsman program with services provided by the Department of

Assistive and Rehabilitative Services.

Added by Acts 2005, 79th Leg., Ch.

265, Sec. 3.016, eff. September 1, 2005.

Sec. 404.104. AUTHORITY TO APPEAR OR INTERVENE. The public

counsel:

(1) may appear or intervene, as a party or otherwise, as a

matter of right before the commissioner, commissioner of

insurance, division, or department on behalf of injured employees

as a class in matters involving rules, agency policies, and forms

affecting the workers' compensation system that the commissioner

or the commissioner of insurance adopts or approves;

(2) may intervene as a matter of right or otherwise appear in a

judicial proceeding involving or arising from an action taken by

an administrative agency in a proceeding in which the public

counsel previously appeared under the authority granted by this

chapter;

(3) may appear or intervene, as a party or otherwise, as a

matter of right on behalf of injured employees as a class in any

proceeding in which the public counsel determines that the

interests of injured employees as a class are in need of

representation, except that the public counsel may not intervene

in an enforcement or parens patriae proceeding brought by the

attorney general; and

(4) may appear or intervene before the commissioner,

commissioner of insurance, division, or department, as a party or

otherwise, on behalf of injured employees as a class in a matter

involving rates, rules, agency policies, or forms affecting

injured employees as a class in any proceeding in which the

public counsel determines that injured employees are in need of

representation.

Added by Acts 2005, 79th Leg., Ch.

265, Sec. 3.016, eff. September 1, 2005.

Sec. 404.105. AUTHORITY TO ASSIST INDIVIDUAL INJURED EMPLOYEES

IN ADMINISTRATIVE PROCEDURES. (a) The office, through the

ombudsman program, may appear before the commissioner, division,

or State Office of Administrative Hearings to provide assistance

to an individual injured employee during:

(1) a workers' compensation administrative dispute resolution

process; or

(2) an enforcement action by the department or division against

an employee for a violation of the Texas Workers' Compensation

Act.

(b) This chapter may not be construed as requiring or allowing

legal representation for an individual injured employee by an

office attorney or ombudsman in any proceeding.

Added by Acts 2005, 79th Leg., Ch.

265, Sec. 3.016, eff. September 1, 2005.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

1261, Sec. 2, eff. September 1, 2009.

Sec. 404.106. LEGISLATIVE REPORT. (a) The office shall report

to the governor, lieutenant governor, speaker of the house of

representatives, and the chairs of the legislative committees

with appropriate jurisdiction not later than December 1 of each

even-numbered year. The report must include:

(1) a description of the activities of the office;

(2) identification of any problems in the workers' compensation

system from the perspective of injured employees as a class, as

considered by the public counsel, with recommendations for

regulatory and legislative action; and

(3) an analysis of the ability of the workers' compensation

system to provide adequate, equitable, and timely benefits to

injured employees at a reasonable cost to employers.

(b) The office shall coordinate with the workers' compensation

research and evaluation group to obtain needed information and

data to make the evaluations required for the report.

(c) The office shall publish and disseminate the legislative

report to interested persons, and may charge a fee for the

publication as necessary to achieve optimal dissemination.

Added by Acts 2005, 79th Leg., Ch.

265, Sec. 3.016, eff. September 1, 2005.

Sec. 404.107. ACCESS TO INFORMATION BY PUBLIC COUNSEL. The

public counsel:

(1) is entitled to the same access as a party, other than

division staff or department staff, to division or department

records available in a proceeding before the commissioner,

commissioner of insurance, division, or department under the

authority granted to the public counsel by this chapter; and

(2) is entitled to obtain discovery under Chapter 2001,

Government Code, of any nonprivileged matter that is relevant to

the subject matter involved in a proceeding or submission before

the commissioner, commissioner of insurance, division, or

department as authorized by this chapter.

Added by Acts 2005, 79th Leg., Ch.

265, Sec. 3.016, eff. September 1, 2005.

Sec. 404.108. LEGISLATIVE RECOMMENDATIONS. The public counsel

may recommend proposed legislation to the legislature that the

public counsel determines would positively affect the interests

of injured employees as a class.

Added by Acts 2005, 79th Leg., Ch.

265, Sec. 3.016, eff. September 1, 2005.

Sec. 404.109. INJURED EMPLOYEE RIGHTS; NOTICE. The public

counsel shall adopt, in the form and manner prescribed by the

public counsel and after consultation with the commissioner of

workers' compensation, a notice of injured employee rights and

responsibilities to be distributed by the division as provided by

commissioner or commissioner of insurance rules. A right or

responsibility adopted under this section must be consistent with

the requirements of this subtitle and division rules. This

section may not be construed as establishing an entitlement to

benefits to which the claimant is not otherwise entitled under

this subtitle.

Added by Acts 2005, 79th Leg., Ch.

265, Sec. 3.016, eff. September 1, 2005.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

1261, Sec. 3, eff. September 1, 2009.

Sec. 404.110. APPLICABILITY TO PUBLIC COUNSEL OF CONFIDENTIALITY

REQUIREMENTS. (a) Confidentiality requirements applicable to

examination reports and to the commissioner of insurance under

Sections 401.058, 401.105, 401.106, 441.201, and 501.158,

Insurance Code, as applicable, and Section 404.111, apply to the

public counsel.

(b) An employee of the office may not be compelled to disclose

information communicated to the employee by a claimant on any

matter relating to the claimant's claim. This subsection does not

prohibit or alter the office's duty to notify and cooperate with

appropriate law enforcement authorities under Section

404.1015(c).

Added by Acts 2005, 79th Leg., Ch.

265, Sec. 3.016, eff. September 1, 2005.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

1261, Sec. 4, eff. September 1, 2009.

Sec. 404.111. ACCESS TO INFORMATION. (a) Except as otherwise

provided by this section, the office may access information from

an executive agency that is otherwise confidential under a law of

this state if that information is necessary for the performance

of the duties of the office, including information made

confidential under Section 402.091.

(b) The office may not access information under Subsection (a)

that is an attorney-client communication or an attorney work

product, or other information protected by a privilege recognized

by the Texas Rules of Civil Procedure or the Texas Rules of

Evidence.

(c) In furtherance of assisting an employee under Section

404.105(a)(2), the office may not access information under

Section 404.111(a) to which the employee is not otherwise

entitled. If the office possesses any information made

confidential by the Texas Workers' Compensation Act or any other

laws of this state to which the employee is not otherwise

entitled, that information may not be disclosed to the employee

or any other party assisting an employee under Section

404.105(a)(2). Nothing in this subsection prohibits or alters

the office's duty to notify appropriate law enforcement

authorities under Section 404.1015(c).

(d) Except as provided by this section, the division or the

department shall provide any information or data requested by the

public counsel in furtherance of the duties of the office under

this chapter.

(e) The office may not make public any confidential information

provided to the office under this chapter. Except as provided by

Subsection (c), the office may disclose a summary of the

information that does not directly or indirectly identify the

individual or entity that is the subject of the information. The

office may not release, and an individual or entity may not gain

access to, any information that:

(1) could reasonably be expected to reveal the identity of a

health care provider or an injured employee;

(2) reveals the zip code of an injured employee's primary

residence;

(3) discloses a health care provider discount or a differential

between a payment and a billed charge; or

(4) relates to an actual payment made by a payer to an

identified health care provider.

(f) Information collected or used by the office under this

chapter is subject to the confidentiality provisions and criminal

penalties of Section 402.091.

(g) Information on health care providers and injured employees

that is in the possession of the office, and any compilation,

report, or analysis produced from the information that identifies

providers and injured employees is not:

(1) subject to discovery, subpoena, or other means of legal

compulsion for release to any individual or entity; or

(2) admissible in any civil, administrative, or criminal

proceeding.

(h) Notwithstanding Subsection (e)(2), the office may use zip

code information to analyze information on a geographical basis.

Added by Acts 2005, 79th Leg., Ch.

265, Sec. 3.016, eff. September 1, 2005.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

1261, Sec. 5, eff. September 1, 2009.

SUBCHAPTER D. OMBUDSMAN PROGRAM

Sec. 404.151. OMBUDSMAN PROGRAM. (a) The office shall maintain

an ombudsman program as provided by this subchapter to assist

injured employees and persons claiming death benefits in

obtaining benefits under this subtitle.

(b) An ombudsman shall:

(1) meet with or otherwise provide information to injured

employees;

(2) investigate complaints;

(3) communicate with employers, insurance carriers, and health

care providers on behalf of injured employees;

(4) assist unrepresented claimants to enable those persons to

protect their rights in the workers' compensation system; and

(5) meet with an unrepresented claimant privately for a minimum

of 15 minutes prior to any informal or formal hearing.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by Acts 1995, 74th Leg., ch. 980, Sec. 1.31, eff. Sept.

1, 1995.

Redesignated from Labor Code, Section 409.041 and amended by Acts

2005, 79th Leg., Ch.

265, Sec. 3.017, eff. September 1, 2005.

Sec. 404.152. DESIGNATION AS OMBUDSMAN; ELIGIBILITY AND TRAINING

REQUIREMENTS; CONTINUING EDUCATION REQUIREMENTS. (a) At least

one specially qualified employee in each division office shall be

an ombudsman designated by the office of injured employee

counsel, who shall perform the duties under this subchapter as

the person's primary responsibility.

(b) To be eligible for designation as an ombudsman, a person

must:

(1) demonstrate satisfactory knowledge of the requirements of:

(A) this subtitle and the provisions of Subtitle C that relate

to claims management;

(B) other laws relating to workers' compensation; and

(C) rules adopted under this subtitle and the laws described

under Subdivision (1)(B);

(2) have demonstrated experience in handling and resolving

problems for the general public;

(3) possess strong interpersonal skills; and

(4) have at least one year of demonstrated experience in the

field of workers' compensation.

(c) The public counsel shall by rule adopt training guidelines

and continuing education requirements for ombudsmen. Training

provided under this subsection must:

(1) include education regarding this subtitle, rules adopted

under this subtitle, and decisions of the appeals panel, with

emphasis on benefits and the dispute resolution process;

(2) require an ombudsman undergoing training to be observed and

monitored by an experienced ombudsman during daily activities

conducted under this subchapter; and

(3) incorporate the requirements of Section 404.103(b).

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Redesignated from Labor Code Sec. 409.041(c) and amended by Acts

1995, 74th Leg., ch. 980, Sec. 1.31, eff. Sept. 1, 1995. Amended

by Acts 1997, 75th Leg., ch. 1443, Sec. 8, eff. Sept. 1, 1997.

Redesignated from Labor Code, Section 409.042 and amended by Acts

2005, 79th Leg., Ch.

265, Sec. 3.017, eff. September 1, 2005.

Sec. 404.153. EMPLOYER NOTIFICATION; ADMINISTRATIVE VIOLATION.

(a) Each employer shall notify its employees of the ombudsman

program in the manner prescribed by the office.

(b) An employer commits an administrative violation if the

employer fails to comply with this section.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Redesignated from Labor Code Sec. 409.041(d) and amended by Acts

1995, 74th Leg., ch. 980, Sec. 1.31, eff. Sept. 1, 1995.

Redesignated from Labor Code, Section 409.043 and amended by Acts

2005, 79th Leg., Ch.

265, Sec. 3.017, eff. September 1, 2005.

Sec. 404.154. PUBLIC INFORMATION. The office shall widely

disseminate information about the ombudsman program.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Renumbered from Labor Code Sec. 409.042 by Acts 1995, 74th Leg.,

ch. 980, Sec. 1.31, eff. Sept. 1, 1995.

Redesignated from Labor Code, Section 409.044 and amended by Acts

2005, 79th Leg., Ch.

265, Sec. 3.017, eff. September 1, 2005.

Sec. 404.155. COST FOR CERTAIN COPIES OF MEDICAL RECORDS;

ADMINISTRATIVE VIOLATION. (a) At the written request of an

ombudsman designated under this subchapter who is assisting a

specific injured employee, a health care provider shall provide

copies of the injured employee's medical records to the ombudsman

at no cost to the ombudsman or the office.

(b) The workers' compensation insurance carrier is liable to the

health care provider for the cost of providing copies of the

employee's medical records under this section. The insurance

carrier may not deduct that cost from any benefit to which the

employee is entitled.

(c) The amount charged for providing copies of an injured

employee's medical records under this section is the amount

prescribed by rules adopted by the commissioner for copying

medical records.

(d) A health care provider may not require payment for the cost

of providing copies of an injured employee's medical records

under this section before providing the copies to the ombudsman.

(e) The public counsel may adopt rules regarding a time frame

for the provision of copies of an injured employee's medical

records under this section and any other matter relating to

provision of those copies.

(f) A health care provider or insurance carrier that fails to

comply with the requirements of this section or rules adopted

under this section commits an administrative violation. The

commissioner shall enforce a violation under this subsection in

accordance with Chapter 415.

Added by Acts 2007, 80th Leg., R.S., Ch.

1009, Sec. 1, eff. June 15, 2007.