Texas Labor Code -CHAPTER 404. OFFICE OF INJURED EMPLOYEE COUNSEL
Texas Workers Compensation Act
Title 5 - Texas Labor Code - Chapters 401-506
TABLE OF CONTENTS
LABOR CODE
CHAPTER 404. OFFICE OF INJURED EMPLOYEE COUNSEL
SUBCHAPTER A. OFFICE; GENERAL PROVISIONS
§ 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, § 3.016, eff. Sept. 1,
2005.
§ 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, § 3.016, eff. Sept. 1,
2005.
§ 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, 2009.
Added by Acts 2005, 79th Leg., ch. 265, § 3.016, eff. Sept. 1,
2005.
§ 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, § 3.016, eff. Sept. 1,
2005.
§ 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, § 3.016, eff. Sept. 1,
2005.
§ 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, § 3.016, eff. Sept. 1,
2005.
SUBCHAPTER B. INJURED EMPLOYEE PUBLIC COUNSEL
§ 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, § 3.016, eff. Sept. 1,
2005.
§ 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, § 3.016, eff. Sept. 1,
2005.
§ 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, § 3.016, eff. Sept. 1,
2005.
§ 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, § 3.016, eff. Sept. 1,
2005.
§ 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, § 3.016, eff. Sept. 1,
2005.
§ 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, § 3.016, eff. Sept. 1,
2005.
§ 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, § 3.016, eff. Sept. 1,
2005.
SUBCHAPTER C. GENERAL POWERS AND DUTIES OF OFFICE
§ 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, § 3.016, eff. Sept. 1,
2005.
§ 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, § 3.016, eff. Sept. 1,
2005.
§ 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, § 3.016, eff. Sept. 1,
2005.
§ 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, § 3.016, eff. Sept. 1,
2005.
§ 404.105. AUTHORITY TO ASSIST INDIVIDUAL INJURED
EMPLOYEES IN ADMINISTRATIVE PROCEDURES. The office, through the
ombudsman program, may appear before the commissioner or division
on behalf of an individual injured employee during an
administrative dispute resolution process. 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, § 3.016, eff. Sept. 1,
2005.
§ 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, § 3.016, eff. Sept. 1,
2005.
§ 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, § 3.016, eff. Sept. 1,
2005.
§ 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, § 3.016, eff. Sept. 1,
2005.
§ 404.109. INJURED EMPLOYEE RIGHTS; NOTICE. The public
counsel shall submit to the division and the department for
adoption by the commissioners a notice of injured employee rights
and responsibilities to be distributed as provided by commissioner
and commissioner of insurance rules.
Added by Acts 2005, 79th Leg., ch. 265, § 3.016, eff. Sept. 1,
2005.
§ 404.110. APPLICABILITY OF CONFIDENTIALITY
REQUIREMENTS. Confidentiality requirements applicable to
examination reports under Article 1.18, Insurance Code, and to the
commissioner of insurance under Section 3A, Article 21.28-A,
Insurance Code, apply to the public counsel.
Added by Acts 2005, 79th Leg., ch. 265, § 3.016, eff. Sept. 1,
2005.
§ 404.111. ACCESS TO INFORMATION. (a) 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:
(1) Section 843.006, Insurance Code;
(2) Chapter 108, Health and Safety Code;
(3) Chapter 552, Government Code; and
(4) Sections 402.083, 402.091, and 402.092 of this
code.
(b) On request by the public counsel, the division or the
department shall provide any information or data requested by the
office in furtherance of the duties of the office under this
chapter.
(c) The office may not make public any confidential
information provided to the office under this chapter but 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.
(d) Information collected or used by the office under this
chapter is subject to the confidentiality provisions and criminal
penalties of:
(1) Section 81.103, Health and Safety Code;
(2) Section 311.037, Health and Safety Code;
(3) Chapter 159, Occupations Code; and
(4) Section 402.091 of this code.
(e) 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.
(f) Notwithstanding Subsection (c)(2), the office may use
zip code information to analyze information on a geographical
basis.
Added by Acts 2005, 79th Leg., ch. 265, § 3.016, eff. Sept. 1,
2005.
SUBCHAPTER D. OMBUDSMAN PROGRAM
§ 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, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 980, § 1.31, eff. Sept. 1, 1995.
Renumbered from V.T.C.A., Labor Code § 409.041 and amended by
Acts 2005, 79th Leg., ch. 265, § 3.017, eff. Sept. 1, 2005
§ 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, § 1, eff. Sept. 1, 1993.
Redesignated from V.T.C.A., Labor Code § 409.041(c) and amended
by Acts 1995, 74th Leg., ch. 980, § 1.31, eff. Sept. 1, 1995.
Amended by Acts 1997, 75th Leg., ch. 1443, § 8, eff. Sept. 1,
1997. Renumbered from V.T.C.A., Labor Code § 409.042 and
amended by Acts 2005, 79th Leg., ch. 265, § 3.017, eff. Sept. 1,
2005.
§ 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, § 1, eff. Sept. 1, 1993.
Redesignated from V.T.C.A., Labor Code § 409.041(d) and amended
by Acts 1995, 74th Leg., ch. 980, § 1.31, eff. Sept. 1, 1995.
Renumbered from V.T.C.A., Labor Code § 409.043 and amended by
Acts 2005, 79th Leg., ch. 265, § 3.017, eff. Sept. 1, 2005.
§ 404.154. PUBLIC INFORMATION. The office shall widely
disseminate information about the ombudsman program.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
Renumbered from V.T.C.A., Labor Code § 409.042 by Acts 1995,
74th Leg., ch. 980, § 1.31, eff. Sept. 1, 1995. Renumbered from
V.T.C.A., Labor Code § 409.044 and amended by Acts 2005, 79th
Leg., ch. 265, § 3.017, eff. Sept. 1, 2005.
