Adopted Rules Title 28

TITLE 28. INSURANCE

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

CHAPTER 122. COMPENSATION PROCEDURE--CLAIMANTS

SUBCHAPTER B. CLAIMS PROCEDURE FOR BENEFICIARIES OF INJURED EMPLOYEES

The Texas Department of Insurance, Division of Workers' Compensation (DWC) adopts amendments to 28 TAC §122.100, Claim for Death Benefits. The amendments are adopted with a change to the proposed text published in the September 29, 2023, issue of the Texas Register (48 TexReg 5620). DWC held a public hearing on the proposal on October 24, 2023. The text will be republished.

REASONED JUSTIFICATION. Amending §122.100 is necessary to clarify how legal beneficiaries may file claims, consistent with the statute and other rules about notice to insurance carriers, and outline what happens after filing. House Bill (HB) 2314 amended Labor Code §§408.182 and 409.007 to enable eligible beneficiaries to file claims for death benefits with DWC or an insurance carrier, and it imposed recordkeeping and notice requirements on insurance carriers that receive those claims.

Section 122.100 provides requirements for legal beneficiaries to file claims for death benefits. The amendments clarify that they may file a claim with DWC or an insurance carrier. The amendments also cross-reference the associated rule for insurance carriers that receive notices of death or claims for death benefits (Chapter 124, §124.8 of this title, adopted to implement HB 2314), clarify that beneficiaries may provide additional evidence electronically, and include nonsubstantive editorial and formatting changes to conform the section to the agency's current style and to improve the rule's clarity and readability. The amendments are necessary to ease administrative barriers for legal beneficiaries to claim the benefits to which they are entitled, and to ensure that, regardless of the way the claim was initially filed, DWC receives the documentation necessary to process the claim effectively and efficiently.

In response to a comment, DWC has adjusted §122.100(d) from the proposed text to make the processes for collecting additional evidence from potential beneficiaries the same, regardless of filing method, and to streamline the text for clarity. Under §102.5(h) of this title, electronic transmission includes fax, email, electronic data interchange (EDI), or any other similar method. Before HB 2314, all claims had to be filed with DWC, which enabled DWC to guide potential beneficiaries' paper claim submissions to ensure that they were complete. However, now that electronic filing is more advanced, and potential beneficiaries may file their claims with either DWC or the insurance carrier, a simpler, more efficient process for collecting additional evidence that applies regardless of filing method reduces confusion, cost, and regulatory burdens for everyone involved, including potential beneficiaries and insurance carriers.

SUMMARY OF COMMENTS AND AGENCY RESPONSE.

Commenters: DWC received three written comments from two commenters on the proposal, and no oral comments. Commenters in support of the proposal were: Texas Mutual Insurance Company. Commenters in support of the proposal with changes were: the Office of Injured Employee Counsel. DWC did not receive comments that were against the proposal.

Comment on §122.100. A commenter stated that they supported the proposed changes in this rule to implement HB 2314.

Agency Response to Comment on §122.100. DWC appreciates the comment and support.

Comment on §122.100(a). A commenter recommended adding a good cause exception to §122.100(a) to allow the filing of claims after the one-year anniversary of the death of the employee for good cause to conform to the requirements of Labor Code §§409.007(b)(2) and 408.108(d-2).

Agency Response to Comment on §122.100(a). DWC appreciates the comment but declines to make the change. An exception to the one-year filing deadline for good cause already exists in §122.100(f)(2), so adding an additional good cause exception to §122.100(a) would be unnecessary and redundant.

Comment on §122.100(d). A commenter recommended changing §122.100(d) to state that a potential beneficiary that files a claim in paper format may file additional evidence at a later time and in paper or electronic format, instead of being required to file additional evidence on paper at the time they file the paper claim.

Agency Response to Comment on §122.100(d). DWC appreciates the comment and has adjusted the rule text to make the processes for collecting additional evidence from potential beneficiaries the same, regardless of filing method, and to streamline the text for clarity.

STATUTORY AUTHORITY. The commissioner of workers' compensation adopts the amendments to 28 TAC §122.100 under Labor Code §§408.182, 409.007, 402.00111, 402.00116, and 402.061.

Labor Code §408.182, as amended by HB 2314, 88th Legislature, Regular Session (2023), provides for the distribution of death benefits to eligible beneficiaries of a deceased employee, when a compensable injury to the employee results in death, and allows an eligible parent to file a claim with DWC or an insurance carrier.

Labor Code §409.007, as amended by HB 2314, 88th Legislature, Regular Session (2023), requires a person to file a claim for death benefits with DWC or an insurance carrier; and provides that, on receiving such a claim, the insurance carrier must, in the form and manner DWC prescribes, create and maintain a record documenting receipt of the claim and provide written notice to DWC that the person filed the claim.

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 the division 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.

§122.100.Claim for Death Benefits.

(a) Filing. For a legal beneficiary, other than the subsequent injury fund, to receive the benefits available because of the death of an employee that results from a compensable injury, a person must file a written claim for death benefits within one year after the date of the employee's death.

(b) An insurance carrier that receives a claim for death benefits under this section must comply with §124.8 of this title (relating to Receipt, Records, and Notice of Death or Claim for Death Benefits).

(c) Form and information requirements. The claim should be submitted to the division or insurance carrier either on paper or via electronic transmission, in the form, format, and manner prescribed by the division, and should include the following:

(1) the potential beneficiary's name, address, telephone number (if any), Social Security number, and relationship to the deceased employee;

(2) the deceased employee's name, last address, Social Security number (if known), and workers' compensation claim number (if any); and

(3) other information, as follows:

(A) a description of the circumstances and nature of the injury (if known);

(B) the name and location of the employer at the time of the injury;

(D) other known legal beneficiaries.

(d) Required documents. A potential beneficiary must file with the division or insurance carrier a copy of the deceased employee's death certificate and any additional documentation or other evidence that establishes that the potential beneficiary is a legal beneficiary of the deceased employee. The required documents or additional evidence may be filed separately either on paper or by electronic transmission, as defined in §102.5(h) of this title.

(e) One claim per person. Each person must file a separate claim for death benefits, unless the claim expressly includes or is made on behalf of another person.

(f) Deadline. Failure to file a claim for death benefits within one year after the date of the employee's death bars the claim of a legal beneficiary, other than the subsequent injury fund, unless:

(1) that legal beneficiary is a minor or otherwise legally incompetent;

(2) except as provided by paragraph (3) of this subsection, good cause exists for failure to file the claim on time; or

(3) for a legal beneficiary who is an eligible parent as defined by §132.6(e) of this title (relating to Eligibility of Other Surviving Dependents and Eligible Parents To Receive Death Benefits), the parent submits proof satisfactory to the commissioner of a compelling reason for the delay in filing the claim for death benefits.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on November 21, 2023.

TRD-202304347

Kara Mace

General Counsel

Texas Department of Insurance, Division of Workers' Compensation

Effective date: December 11, 2023

Proposal publication date: September 29, 2023

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

CHAPTER 124. INSURANCE CARRIERS: NOTICES, PAYMENTS, AND REPORTING

SUBCHAPTER A. INSURANCE CARRIERS: REQUIRED NOTICES AND MODES OF PAYMENT

28 TAC §124.8

INTRODUCTION. The Texas Department of Insurance, Division of Workers' Compensation (DWC) adopts new 28 TAC §124.8, Receipt, Records, and Notice of Death or Claim for Death Benefits. The new section is adopted with a change to subsection (c)(1) of the proposed text published in the September 29, 2023, issue of the Texas Register (48 TexReg 5622) to eliminate a potential conflict in the timing of the notice. DWC held a public hearing on the proposal on October 24, 2023. The text will be republished.

REASONED JUSTIFICATION. New §124.8 is necessary to implement House Bill (HB) 2314, 88th Legislature, Regular Session (2023). HB 2314 amended Labor Code §§408.182 and 409.007 to enable eligible beneficiaries to file claims for death benefits with DWC or an insurance carrier, and it imposed recordkeeping and notice requirements on insurance carriers that receive those claims.

Section 124.8 cross-references the associated rule for beneficiaries filing claims for death benefits (Chapter 122, §122.100 of this title, with amendments to implement HB 2314) for consistency and ease of use, and clarifies an insurance carrier's obligations, consistent with associated rules for electronic data transactions and other existing rules. It requires an insurance carrier that sends a plain-language notice of potential entitlement to workers' compensation death benefits to a potential beneficiary under existing rules to also send a copy of that notice to DWC.

New §124.8 is necessary to ensure that, if an insurance carrier receives a notice of death or a claim for death benefits, the insurance carrier knows what the requirements for recordkeeping and notice to DWC are. It is also necessary to ensure that procedures for receiving information from claimants, maintaining records, and transmitting information to DWC are as consistent as possible with procedures for other similar situations and with other rules to enhance compliance and reduce confusion. Finally, new §124.8 is necessary to ensure that DWC has the information needed to identify potential claims for death benefits and potential beneficiaries. Having that information is necessary for DWC to ensure that the potential beneficiaries have access to DWC's outreach services, and that insurance carriers have the information they need to process the claims efficiently.

SUMMARY OF COMMENTS AND AGENCY RESPONSE.

Commenters: DWC received two written comments on the proposal, and no oral comments. Commenters in support of the proposal with changes were: the Office of Injured Employee Counsel and Texas Mutual Insurance Company. DWC did not receive comments that were against the proposal.

Comments on §124.8. Two commenters requested that DWC clarify when an insurance carrier must send DWC a copy of the plain-language notice that it sends to potential beneficiaries.

Agency Response to Comment on §124.8. DWC appreciates the comments and has clarified the text by deleting the reference that tied sending the plain-language notice to receiving the claim. Section 132.17(d) requires the insurance carrier to send the plain-language notice to the potential beneficiary within seven days of the date the insurance carrier identified or was otherwise made aware of the identity and means of contacting the potential beneficiary. The insurance carrier's obligation is to send DWC a copy of the notice when it sends the notice to the potential beneficiary, so the same seven-day time frame applies.

STATUTORY AUTHORITY. The commissioner of workers' compensation adopts new 28 TAC §124.8 under Labor Code §§408.182, 409.007, 402.00111, 402.00116, and 402.061.

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

§124.8.Receipt, Records, and Notice of Death or Claim for Death Benefits.

(a) Definition. In this section, "claim for death benefits" means a claim that is filed under Chapter 122, Subchapter B, §122.100 of this title.

(b) General requirements. An insurance carrier that receives a notice of death in accordance with §132.17 of this title, or a claim for death benefits must comply with all of the requirements in this chapter.

(1) send the division a copy of the plain-language notice that the insurance carrier must provide to the potential beneficiary under §132.17 of this title.

(2) on receiving a claim for death benefits, create and maintain a record documenting receipt of the claim for death benefits. The record must include all of the information in the claim for death benefits. The insurance carrier must maintain the record in accordance with Chapter 102, §102.4 of this title.

(3) send the division a copy of a claim for death benefits the insurance carrier receives from the potential beneficiary not later than the seventh day after receiving it and include any other documents and information the insurance carrier received.