CHAPTER 404. OFFICE OF INJURED EMPLOYEE COUNSEL
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.