PART 2. TEXAS DEPARTMENT OF INSURANCE, DIVISION OF WORKERS' COMPENSATION

CHAPTER 166. ACCIDENT PREVENTION SERVICES

28 TAC §§166.1 - 166.3, 166.5

INTRODUCTION. The Texas Department of Insurance, Division of Workers' Compensation (DWC) proposes to amend 28 TAC §§166.1 - 166.3, and 166.5, concerning certain submission requirements for insurance companies (companies) about their accident prevention services (APS). The proposed amendments implement Texas Labor Code §§411.061, 411.064, 411.065, and 411.066.

EXPLANATION. The amendments to §§166.1 - 166.3, and 166.5 are necessary to eliminate overly burdensome administrative regulations that go beyond statutory requirements, that companies must adhere to in order to demonstrate the sufficiency of their APS to DWC. Removing some of these additional requirements will allow companies to streamline their services and focus on their APS by not having to track and submit as much additional information to DWC. Also, these amendments will allow DWC to direct our attention and resources on services that have proven to be more effective in providing occupational safety assistance to Texas employees and employers.

The amended rules still require companies to submit information on their APS, in compliance with Labor Code § 411.065, and DWC still maintains the right to inspect any company at any time. With these changes, the statutes and amended rules are sufficient to ensure companies are maintaining proper APS, and the benefit of reducing overly burdensome requirements outweighs the benefit the current rules provide to oversee APS for policyholders.

Section 166.1 defines terms about APS used in the chapter. The amendments will apply nonsubstantive editorial and formatting changes to conform the section to the agency's current style and improve the rule's clarity.

Section 166.2 concerns what companies must include in maintaining APS, including written procedures and records. This section also requires companies to evaluate a policyholder's need for services in accordance with the company's written procedures. The amendments will remove the requirement that companies must maintain written procedures and remove the requirement that a company must evaluate a policyholder's needs according to those written procedures. Because these requirements will be removed, the requirement that companies must, after evaluating and determining the policyholder's need for services, render all offers of services and the provision of services to the policyholder within a reasonable period of time, will also be removed. The Labor Code does not mandate these requirements. Also, DWC will amend §166.2(b)(1) to update DWC's new mailing address.

DWC is not amending §166.2(b)(2), which requires companies, in the event of a work-related fatality, to contact the policyholder within seven working days and offer a survey. It is in the interest of the state for companies to reach out to a policyholder if a work-related death occurs. Companies are not required to complete the survey within seven days. They are required to contact the policyholder within seven days and offer a survey.

DWC is not amending the rule that requires companies to provide APS within 15 days from the date the policyholder requests the service. The rule allows the parties to extend this time period if they mutually agree.

Section 166.3 concerns annual information that companies must send DWC regarding their APS. The amendments align the rule with statutory requirements. They remove the requirement that companies must file an initial annual report on their APS, but still requires companies to file an annual report with DWC. The information required in the annual report will be revised to reflect what is required under Labor Code §411.065. DWC will update its forms to incorporate the amendments regarding annual reports. The revised annual report form will be used beginning with 2024 reporting data and due by April 1, 2025.

Section 166.5 concerns inspections of the adequacy of a company's APS. The amendments remove the requirement that DWC must conduct an initial inspection of each company and remove the requirement that a company must provide a copy of all APS procedures 60 days before an inspection. The amendments also remove the requirements that, for each policy selected by DWC for inspection, the company must provide the primary North American Industry Classification System NAICS code, the A.M. Best Hazard index number, and certain service and loss information. The amendments remove the requirements that DWC must issue a certificate to each company if the inspection is deemed adequate and withhold the certificate if a company's APS are inadequate. DWC is not amending the rule to place a time limit on its post inspection letter. The statute does not require a time limit. DWC is not amending the rule to define that a survey is an on-site visit because the term, "survey" includes "on-site" as part of its definition in §166.1(a)(4).

In addition, the proposed amendments include nonsubstantive editorial and formatting changes to conform the sections to the agency's current style and improve the rule's clarity.

FISCAL NOTE AND LOCAL EMPLOYMENT IMPACT STATEMENT. Deputy Commissioner of Health and Safety Mary Landrum has determined that during each year of the first five years the proposed amendments are in effect, there will be no measurable fiscal impact on state and local governments as a result of enforcing or administering the sections, other than that imposed by the statute. This determination was made because the proposed amendments do not add to or decrease state revenues or expenditures, and because local governments are not involved in enforcing or complying with the proposed amendments.

Deputy Commissioner Landrum does not anticipate a measurable effect on local employment or the local economy as a result of this proposal.

PUBLIC BENEFIT AND COST NOTE. For each year of the first five years the proposed amendments are in effect, Deputy Commissioner Landrum expects that enforcing and administering the proposed amendments will have the public benefits of ensuring that DWC's rules conform to Labor Code §§411.061, 411.064, 411.065, and 411.066 and are current, accurate, and readable, which promotes transparent and efficient regulation. The proposed amendments will also have the public benefit of companies being able to focus on their APS instead of filling out and submitting paperwork to DWC.

Deputy Commissioner Landrum expects that the proposed amendments will impose an economic cost on persons required to comply with the amendments. Companies may incur some reprogramming costs, but they will save money by the reduced administrative reporting requirements. The amendments will not increase the cost to comply with Labor Code §§411.061, 411.064, 411.065, and 411.066. These amendments will remove rules that require more than the statutes require.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS. DWC has determined that the proposed amendments will not have an adverse economic effect or a disproportionate economic impact on small or micro businesses, or on rural communities. They are intended to eliminate unnecessarily burdensome requirements regarding information companies must submit on their APS. They also make editorial changes, changes to update obsolete references, and updates for plain language and agency style. The proposed amendments do not change the people the rule affects, but they do impose additional costs. Companies will need to update their systems, but any reprogramming cost will be offset by the time and expenses that companies will save with the streamlined requirements. As a result, and in accordance with Government Code §2006.002(c), DWC is not required to prepare a regulatory flexibility analysis.

EXAMINATION OF COSTS UNDER GOVERNMENT CODE §2001.0045. DWC has determined that this proposal may impose a possible cost on regulated persons. However, no additional rule amendments are required under Government Code §2001.0045 because, although companies may incur some reprogramming costs, the rule will reduce the burdens imposed on these companies, and therefore the exception in Government Code §2001.0045(c)(2)(A) applies.

GOVERNMENT GROWTH IMPACT STATEMENT. DWC has determined that for each year of the first five years that the proposed amendments are in effect, the proposed rule:

- will not create or eliminate a government program;

- will not require the creation of new employee positions or the elimination of existing employee positions;

- will not require an increase or decrease in future legislative appropriations to the agency;

- will not require an increase or decrease in fees paid to the agency;

- will not create a new regulation;

- will expand, limit, or repeal an existing regulation;

- will not increase or decrease the number of individuals subject to the rule's applicability; and

- will not positively or adversely affect the Texas economy.

The proposed amendments will remove certain existing regulations that require companies to report information about their APS. They are intended to eliminate unnecessarily burdensome requirements regarding information companies must submit on their APS.

TAKINGS IMPACT ASSESSMENT. DWC has determined that no private real property interests are affected by this proposal, and this proposal does not restrict or limit an owner's right to property that would otherwise exist in the absence of government action. As a result, this proposal does not constitute a taking or require a takings impact assessment under Government Code §2007.043.

REQUEST FOR PUBLIC COMMENT. DWC will consider any written comments on the proposal that DWC receives no later than 5:00 p.m., Central time, on March 25, 2024. Send your comments to RuleComments@tdi.texas.gov; or to Texas Department of Insurance, Division of Workers' Compensation, Legal Services, MC-LS, P.O. Box 12050, Austin, Texas 78711-2050.

To request a public hearing on the proposal, submit a request before the end of the comment period to RuleComments@tdi.texas.gov; or to Texas Department of Insurance, Division of Workers' Compensation, Legal Services, MC-LS, P.O. Box 12050, Austin, Texas 78711-2050. The request for a public hearing must be separate from any comments. If DWC holds a public hearing, it will consider written and oral comments presented at the hearing.

STATUTORY AUTHORITY. DWC proposes §§166.1, 166.2, 166.3, and 166.5 under Labor Code §§411.061, 411.064, 411.065, 411.066, 402.00111, 402.00116, and 402.061.

Labor Code §411.061 provides that a company must maintain adequate APS as a prerequisite for writing workers' compensation insurance in Texas.

Labor Code §411.064 provides that DWC may conduct inspections of a company to determine the adequacy of that company's APS.

Labor Code §411.065 provides that every company writing workers' compensation insurance in Texas must submit, at least annually, to DWC detailed information on the type of accident prevention facilities offered to the company's policyholders.

Labor Code §411.066 requires that the front of each workers' compensation insurance policy delivered or issued for delivery in this state contain notice that accident prevention services are available to the policyholder from the insurance company to appear in at least 10-point bold type.

Labor Code §402.00111 provides that the commissioner of workers' compensation shall exercise all executive authority, including rulemaking authority under Title 5 of the Labor Code.

Labor Code §402.00116 provides that the commissioner of workers' compensation shall administer and enforce this title, other workers' compensation laws of this state, and other laws granting jurisdiction to or applicable to DWC or the commissioner.

Labor Code §402.061 provides that the commissioner of workers' compensation shall adopt rules as necessary to implement and enforce the Texas Workers' Compensation Act.

CROSS-REFERENCE TO STATUTE. Section 166.1 implements Labor Code §411.061, enacted by House Bill (HB) 752, 73rd Legislature, Regular Session (1993) and amended by HB 7, 79th Legislature, Regular Session (2005). Section 166.2 implements Labor Code §§411.061 and 411.066. Section 411.061 was enacted by HB 752, 73rd Legislature, Regular Session (1993) and amended by HB 7, 79th Legislature, Regular Session (2005). Section 411.066 was enacted by HB 752, 73rd Legislature, Regular Session (1993). Section 166.3 implements Labor Code §411.065, enacted by HB 752, 73rd Legislature, Regular Session (1993) and amended by HB 7, 79th Legislature, Regular Session (2005). Section 166.5 implements Labor Code §411.064 enacted by HB 752, 73rd Legislature, Regular Session (1993) and amended by HB 2514, 76th Legislature, Regular Session (1999) and HB 7, 79th Legislature, Regular Session (2005).

§166.1.Definition of Terms.

(a) The following words and terms, when used in this chapter, [shall] have the following meanings, unless the context clearly indicates otherwise.

(1) Accident prevention facilities--All personnel, procedures, equipment, materials, documents, buildings, programs, and information necessary to maintain or provide accident prevention services to the policyholder.

(2) Nature of the policyholders' operations--Type of business or industry with specific reference to potential for accident, injury, or disease determined by the standard hazards associated with the most hazardous industrial operations in which the policyholder is engaged.

(3) Premium--The amount charged for a workers' compensation insurance policy, including any endorsements, after the application of individual risk variations based on loss or expense considerations as defined by Insurance Code §2053.001(2-a).

(4) Survey--An on-site visit to a policyholder's worksite in Texas where the risk exists or the loss occurred and during which the insurance company's accident prevention personnel performs a hazard assessment of the worksite, reviews safety and health programs, and makes recommendations to assist in mitigating risks and preventing injuries and illnesses.

(b) This section is effective July 1, 2024 [October 1, 2013].

§166.2.Adequacy of Accident Prevention Services.

(a) Under [Pursuant to] Labor Code §§411.061, 411.063, and 411.068(a)(1) [§411.061 and §411.068(a)(1)], an insurance company writing workers' compensation insurance in Texas must [shall] maintain or provide accident prevention facilities that are adequate to provide accident prevention services required by the nature of its policyholders' operations, and must include:

(1) surveys;

(2) recommendations;

(3) training programs;

(4) consultations;

(5) analyses of accident causes;

(6) industrial hygiene;

(7) industrial health services;

(8) qualified accident prevention personnel. To provide qualified accident prevention personnel and services, an insurance company may:

(A) employ qualified personnel;

(B) retain qualified independent contractors;

(C) contract with the policyholder to provide personnel and services; or

(D) use a combination of the methods provided in this paragraph; and

[(9) written procedures. An insurance company shall maintain written procedures for:]

[(A) notifying policyholders of the availability of accident prevention services;]

[(B) determining the appropriate accident prevention services for a policyholder;]

[(C) the specific time frame and manner in which the services will be delivered to a policyholder as required by subsection (b) of this section;]

[(D) providing training programs to policyholders;]

[(E) providing written recommendations to the policyholders, which identify hazardous conditions and work practices on the policyholder's premises if the insurance company provides accident prevention services;]

[(F) providing written reports to the insurance company and policyholders, which identify hazardous conditions and work practices on the policyholder's premises if the insurance company contracts out the accident prevention services or retains qualified independent contractors; and]

[(G) items set forth in §166.3(a)(2)(G) of this title (relating to Annual Information Submitted by Insurance Companies); and]

(9) [(10)] written records, reports, and evidence of all accident prevention services provided to each policyholder.

(b) Under [Pursuant to] Labor Code §411.068(a)(2), an insurance company must use [shall utilize] accident prevention services to prevent injuries to employees of its policyholders in a reasonable manner, which at a minimum, include:

(1) Notice of availability of accident prevention services and return-to-work coordination services. Under Labor Code §411.066, an [An] insurance company must [shall] include a notice on the information page or on the front of the policy containing text identical to the following in at least 10-point bold type for each workers' compensation insurance policy delivered or issued for delivery in Texas: Pursuant to Texas Labor Code §411.066, (name of company) is required to notify its policyholders that accident prevention services are available from (name of company) at no additional charge. These services may include surveys, recommendations, training programs, consultations, analyses of accident causes, industrial hygiene, and industrial health services. (Name of company) is also required to provide return-to-work coordination services as required by Texas Labor Code §413.021 and to notify you of the availability of the return-to-work reimbursement program for employers under Texas Labor Code §413.022. If you would like more information, contact (name of company) at (telephone number) and (email address) for accident prevention services or (telephone number) and (email address) for return-to-work coordination services. For information about these requirements, call the Texas Department of Insurance, Division of Workers' Compensation (TDI-DWC) at 1-800-687-7080 or for information about the return-to-work reimbursement program for employers, call the TDI-DWC at (512) 804-5000. If (name of company) fails to respond to your request for accident prevention services or return-to-work coordination services, you may file a complaint with the TDI-DWC in writing at http://www.tdi.texas.gov or by mail to Texas Department of Insurance, Division of Workers' Compensation, P.O. Box 12050, HS-WS, Austin, Texas 78711-2050 [MS-8, at 7551 Metro Center Drive, Austin, Texas 78744-1645];

(2) Contact and surveys following fatalities. An insurance company must [shall] contact the policyholder within seven working days of knowledge of a work-related fatality and offer a survey. Survey offers accepted by the policyholder must [shall] be initiated by the insurance company within 60 days of policyholder acceptance of the survey offer. No offer of a survey is required if the fatality occurred outside of Texas or was the result of an accident on a common carrier, unless the fatality involves an employee of the common carrier during the course and scope of normal job duties; and

[(3) Insurance company evaluation of need for service. An insurance company shall evaluate a policyholder's need for services in accordance with the procedures required by subsection (a)(9) of this section taking into consideration the following criteria:]

[(A) generally accepted industry standards and practices governing occupational safety and health, such as: A.M. Best, North American Industry Classification System (NAICS), Bureau of Labor Statistics data, workers' compensation classification codes, occupational safety and health standards, and underwriting requests;]

[(B) nature of losses;]

[(C) frequency of claims;]

[(D) loss ratio;]

[(E) severity of claims;]

[(F) risk exposure;]

[(G) experience modifier;]

[(H) premium; and]

[(I) any other information relevant under the circumstances;]

[(4) Services offered and provided by an insurance company. After evaluating and determining the policyholder's need for services, all offers of services and the provision of services shall be rendered to a policyholder within a reasonable period of time and in accordance with the insurance company's written procedures under this section and their annual information submitted under §166.3(a)(2)(G) of this title; and]

(3) [(5)] Services requested by a policyholder. An [Notwithstanding any other provision of this section, an] insurance company must [shall] provide to each policyholder accident prevention services required by the nature of their policyholders' operations within 15 days from the date of a policyholder request for services, if appropriate services can be provided without conducting a survey; and within 60 days from the date of a policyholder request, if a survey is required regardless of any provision of this section. Services can be provided at a later date if circumstances require, and the policyholder agrees to the later date [is agreed upon by the policyholder].

(c) The division may determine adequacy of an insurance company's accident prevention services in accordance with the requirements of this chapter and generally accepted tools and guidelines of loss control provision and through:

(1) review of [the initial and subsequent] reports of annual information, as required by §166.3 of this title; and

(2) inspections, as specified in §166.5 of this title (relating to Inspections of Adequacy of Accident Prevention Facilities and Services).

(d) Accident prevention services must [shall ] be provided to policyholders at no additional charge.

(e) An insurance company must [shall] not solicit or [nor] obtain from its policyholders a prospective waiver declining all accident prevention services. Under Labor Code §411.063(a)(3), if [If] an insurance company[, pursuant to Labor Code §411.063(a)(3),] contracts with a policyholder to provide accident prevention personnel or services, this contract does not limit in any way the insurance company's authority or responsibility to comply with any statutory or regulatory requirement contained in this chapter. Insurance companies are responsible for maintaining or providing all services, including contracted services, in accordance with this chapter.

(f) This section is effective July 1, 2024 [October 1, 2013].

§166.3.Annual Information Submitted by Insurance Companies.

[(a) Initial annual report by insurance company.]

[(1) Not later than April 1, 2014, each insurance company writing workers' compensation insurance in Texas as of the effective date of this section shall file with the division an initial annual report on its accident prevention services. An insurance company that writes its first workers' compensation insurance policy after the effective date of this section shall file with the division an initial annual report on its accident prevention services not later than the effective date of its first workers' compensation insurance policy.]

[(2) An initial annual report required by this subsection shall be filed in the format and manner prescribed by the division and shall include:]

[(A) insurance company's name;]

[(B) group name;]

[(C) name, email, phone number, and mailing address of the primary loss control contact for Texas;]

[(D) National Association of Insurance Commissioners (NAIC) number;]

[(E) company's A.M. Best rating;]

[(F) changes in ownership, organizational structure, or management of the insurance company since the last annual report that affect the provision of accident prevention services;]

[(G) for each of the accident prevention services listed in §166.2(a)(1) - (7) of this title (relating to Adequacy of Accident Prevention Services):]

[(i) criteria, including the specific time frame and manner, that the insurance company will use to evaluate and determine a policyholder's need for accident prevention services required by the nature of its policyholder's operations based on frequency and severity of claims and risk exposures, including how the insurance company will ascertain the date of the final determination;]

[(ii) the specific time frame and manner in which an insurance company will make an offer of accident prevention services to policyholders once a determination has been made;]

[(iii) the specific time frame and manner in which services will be provided to policyholders;]

[(iv) specify each entity that will provide the services, such as the insurance company, contracted provider, or contracted policyholder; and]

[(v) how the provision of services to policyholders will be documented;]

[(H) the manner in which an insurance company determines a loss ratio;]

[(I) insurance company qualification requirements for employing or contracting with accident prevention personnel;]

[(J) method for assuring that the accident prevention personnel provide the requisite level of service to the insurance company's policyholders;]

[(K) total number of workers' compensation policies in effect as of December 31 of the report year;]

[(L) number of policies in the following premium groups that received any type of workers' compensation accident prevention services:]

[(i) less than $25,000;]

[(ii) $25,000 - $100,000; and]

[(iii) more than $100,000;]

[(M) total dollar amount spent for accident prevention services for Texas workers' compensation policyholders;]

[(N) number of policyholder requests for service;]

[(O) number of policyholder requests for service fulfilled;]

[(P) number of surveys performed;]

[(Q) number of work-related fatalities incurred by policyholders;]

[(R) evidence of the effectiveness of and accomplishments in accident prevention; and]

[(S) contact information of and certification by an insurance company representative that the information submitted under this subsection is correct and complete.]

[(b) Subsequent annual reports by insurance company.]

(a) [(1)] An [Subsequent to an insurance company's initial annual report under subsection (a) of this section, an] insurance company writing workers' compensation insurance in Texas must [shall] file with the division an annual report on its accident prevention services no [not] later than April 1 of each calendar year.

(b) [(2)] An annual report required by this subsection must [shall] be filed with the division in the format and manner prescribed by the division. [and shall include the:]

[(A) insurance company's name;]

[(B) group name;]

[(C) name, email, phone number, and mailing address of the primary loss control contact for Texas;]

[(D) NAIC number;]

[(E) information in subsection (a)(2)(E) - (R) of this section that has changed since the last annual report; and]

[(F) contact information of and certification by an insurance company representative that the information submitted under this subsection is correct and complete.]

(c) The [initial and subsequent] annual reports must [shall] not include the expenses or the costs of underwriting visits to a policyholder's premises unless accident prevention services are provided during the visit. In that case, the proportionate costs of the accident prevention services may be included in the report.

[(d) When resuming writing workers' compensation insurance in Texas, any insurance company that has not written workers' compensation insurance with exposures in Texas for 12 months or more shall submit, not later than the effective date of its first workers' compensation policy, the initial annual report required under this section.]

(d) [(e)] Insurance companies are responsible for timely and accurate reporting under this section. A report required by this section is considered filed with the division only when it accurately contains all of the required data elements and is received by the division.

(e) [(f)] This section is effective July 1, 2024 [October 1, 2013].

§166.5.Inspections of Adequacy of Accident Prevention Facilities and Services.

(a) Inspections. The division may conduct inspections to determine the adequacy of an insurance company's accident prevention services.

[(1) The division will conduct an initial inspection of each insurance company's accident prevention facilities and the company's use of accident prevention services after the effective date of this section. After the initial inspection, the division may conduct an inspection of an insurance company's accident prevention facilities and the company's use of accident prevention services as often as the division considers necessary to determine compliance with this chapter.]

(1) [(2)] Affiliated companies of an insurer may be inspected together if the same facilities, programs, and personnel are used by each of the companies.

(2) [(3)] At least 90 days before [prior to] an inspection, the division must [shall] notify the insurance company in writing of the inspection. The notice must [shall] specify the location and date of the inspection [and the date on which the inspection will occur].

(3) [(4) Notwithstanding the provisions of this section, the] The division may conduct unannounced on-site visits to determine compliance with the Labor Code [Act] and division rules in accordance with the procedures governing on-site visits in Chapter 180 of this title (relating to Monitoring and Enforcement) regardless of the provisions of this section.

(b) Site of inspection. The inspection of the insurance company's accident prevention services must [shall] take place as determined by the division [at]:

(1) at the insurance company's [company] office in Texas; [or]

(2) at the division; or [division's Austin headquarters]

(3) electronically.

(c) Pre-inspection exchange of information.

(1) At least 60 days before [prior to] the date set for inspection, in the format and manner specified by the division, the insurance company must [shall] provide to the division a list of policyholders. [:]

(A) For the period of time determined by the division, the list must be organized by:

(i) policyholder name;

(ii) policy number;

(iii) effective date or expiration date of the policy;

(iv) premium;

(v) number of fatalities;

(vi) principal Texas location;

(vii) indication of whether the insurance company has contracted with the policyholder for accident prevention services; and

(viii) indication of whether that policyholder has requested accident prevention services.

(B) The list must also:

(i) be taken from the insurance company's most current records;

(ii) be separated by affiliated companies;

(iii) be arranged in descending order by premium; and

(iv) include all policies.

[(A) a list of policyholders, for the period of time determined by the division, by policyholder name, policy number, effective date or expiration date of the policy, premium, number of fatalities, principal Texas location, indication of whether the insurance company has contracted with the policyholder for accident prevention services, and indication of whether that policyholder has requested accident prevention services. The list shall be taken from the insurance company's most current records, separated by affiliated companies, arranged in descending order by premium, and include all policies; and]

[(B) a copy of all accident prevention services procedures, including any changes since the insurance company's last annual report.]

(2) Within 10 days of receipt of the policyholder list, the division must [shall] select the specific policyholder files to be evaluated and notify the insurance company of those selected files.

(3) For each policy selected by the division, the insurance company must [shall] prepare an accident prevention services worksheet in the format and manner prescribed by the division. The worksheet must [shall] include the:

(A) policyholder name;

(B) policy number;

(C) number of employees;

(D) principal Texas office address or principal corporate office address if there is no principal Texas office address;

[(E) primary NAICS code;]

[(F) A. M. Best Hazard index number;]

(E) [(G)] policyholder contact person's name, phone number, and email address;

(F) [(H)] insurance company name;

(G) [(I)] effective date of the policy; and

(H) [(J)] name of person completing the form and date completed.[;]

[(K) service and loss information for policy years as requested by the division, including:]

[(i) total premium;]

[(ii) number of claims;]

[(iii) number of and dates of fatalities;]

[(iv) loss ratio;]

[(v) experience modifier;]

[(vi) surveys (list all dates);]

[(vii) recommendation letters (list all dates);]

[(viii) training programs (list all dates);]

[(ix) consultations (list all dates);]

[(x) analyses of accident causes (list all dates);]

[(xi) industrial hygiene services (list all dates);]

[(xii) industrial health services (list all dates);]

[(xiii) policyholder requests (list all dates requested and dates provided);]

[(xiv) underwriting requests (list all dates requested and dates provided);]

[(xv) insurance company determinations in accordance with §166.2(b)(4) of this title (relating to Adequacy of Accident Prevention Services) (list all dates need for services were determined and dates offered);]

[(xvi) description of policyholder operations; and]

[(xvii) comments.]

(4) At least 10 days before [prior to] the date of the inspection, the insurance company must [shall] file the completed worksheets with the division.

(d) Information to be made available at or before the inspection. The insurance company must [shall] make available for the time frame specified by the division:

(1) the loss control files corresponding to the requested worksheets;

(2) a sample policy declaratory page as evidence that each policyholder has been provided the notice required by §166.2(b)(1) of this title;

[(3) a copy of loss runs for each selected policyholder that includes:]

[(A) number of injuries;]

[(B) accident or illness types;]

[(C) body parts involved;]

[(D) injury causes; and]

[(E) fatalities;]

(3) [(4)] a copy of all documentation of accident prevention services provided in accordance with [§166.2(b)(2) - (5) of] this title;

(4) [(5)] samples of policyholder training materials, audiovisual aids, and training programs; and

(5) [(6)] other information requested by the division [which is] necessary to complete the inspection. Information requested may include, but is not limited to:

(A) records of surveys;

(B) consultations;

(C) recommendations;

(D) training provided;

(E) loss analyses;

(F) industrial health and hygiene services;

(G) return-to-work coordination services information; and

(H) the name, location, status (whether employee or contractor), and qualifications of each person that provided accident prevention services in the loss control files being reviewed during the inspection.

(e) Insurance company policyholder visits and contacts. The division may conduct scheduled visits of the jobsite of an insurance company's policyholder and make other off-site contacts with a policyholder to obtain information about the insurance company's accident prevention facilities and use of services.

(f) Written report of inspection.

(1) The division must [shall] prepare a written report of the inspection and must [shall ] provide a copy to the insurance company's executive management and to the Texas Department of Insurance, Loss Control Regulation Division.

(2) The inspection report must [shall] contain the division's determination of adequacy in accordance with Labor Code §411.061 and §166.2 of this title, and include specific findings and required corrective actions. The inspection report will indicate whether the division has issued a final determination of adequacy, a final determination of inadequacy, or an initial determination of inadequacy with regard to an insurance company's accident prevention services.

(3) The division will provide written notification to the insurance company of specific deficiencies and recommendations for corrective action if it assigns an initial determination of inadequacy. Not later than the 60th day after the date of the initial inspection report, the insurance company must [shall] provide written documentation evidencing its compliance with the division's recommendations contained in the initial inspection report. The written documentation must [shall] detail the corrective actions [being] taken to address each specific finding. If the insurance company believes that it will take more than 60 days to implement the recommendations listed in the initial inspection report, it must [shall] request an extension from the division. After the end of the correction period, a final determination of adequacy or inadequacy will be assigned. The division must [shall] provide the insurance company with notification of this final determination.

[(4) The division shall issue a certificate of inspection to each insurance company after completion of an inspection in which the accident prevention services are deemed adequate.]

[(5) In addition to any sanction authorized by law, a final determination of inadequacy may be cause for withholding a certificate of inspection or reinspection.]

(g) Reinspection.

(1) After an inspection and a final determination of inadequacy of an insurance company's accident prevention services, the division will [shall] reinspect the accident prevention services of the insurance company not earlier than the 180th day or later than the 270th day after the date the accident prevention services were determined by the division to be inadequate.

(2) Information required under this section to be provided at the time of initial inspection is required to again be provided at the time of reinspection in accordance with the time frames established within this section.

(h) This section is effective July 1, 2024 [October 1, 2013].

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 9, 2024.

TRD-202400513

Kara Mace

General Counsel

Texas Department of Insurance, Division of Workers’ Compensation

Earliest possible date of adoption: March 24, 2024

For further information, please call: (512) 804-4703