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Advisory 96-09

ENFORCEMENT EFFORTS RELATING TO FAILURE TO TIMELY FILE TWCC-69 FORMS

In the last legislative session, the Legislature amended the Texas Labor Code by adding Section 415.0035(b)(1) & (d) which provide that a health care provider commits an administrative violation if that provider fails or refuses to timely file required reports or records. The Legislature removed the requirement that this violation be willful or intentional. A violation under this section is punishable by an administrative penalty not to exceed $500. In addition, Section 415.021(b) of the Texas Labor Code states that the Commission may assess an administrative penalty not to exceed $10,000 and may enter a cease and desist order against a person who either commits repeated administrative violations or allows, as a business practice, the commission of repeated administrative violations.

The Commission recently stepped up its enforcement efforts relative to timely filing of the Certification of Maximum Medical Improvement Report (TWCC-69). The new section of the statute has been in effect since September 1, 1995, and the rules relating to the timely filing of TWCC-69 forms have not been changed since that time. In the past, TWCC-69 filing enforcement efforts were primarily concentrated on reviewing complaints received in the Division of Compliance and Practices or as part of special projects. New enforcement efforts include an expanded field audit methodology which includes a review of TWCC-69 forms during all audits of insurance carrier claim files and a new automated audit process to review late TWCC-69 forms individually.

The new automated audit system will use the Commission=s database to electronically identify late TWCC-69 forms and to review each health care provider=s performance in this area. Compliance and Practices will review the electronic performance report and select health care providers for review based primarily upon system impact, performance, and referral activity. The review will include an audit of the health care provider=s TWCC-69 filings for timeliness. Based upon the review, Compliance and Practices will send each identified health care provider one or more Notices of Intent to Issue a Violation. Each Notice of Intent will:

  • notify the HCP that the Commission believes that a violation has occurred;
  • identify the case; and
  • inform the HCP of the proposed penalty.

Once this notice is received, the health care provider will have 10 days to contact Compliance and Practices to discuss the violation and to offer any evidence that either proves the violation did not occur or may tend to mitigate the penalty amount. Through this contact, called a Voluntary Compliance Conference, health care providers will have the opportunity to provide process improvement plans to demonstrate how they will come into compliance to avoid future violations.

If a health care provider fails to contact Compliance and Practices within 10 days of receipt of the Notice of Intent or refuses to participate in a Voluntary Compliance Conference, a standard Notice of Violation will be issued to the provider based upon the evidence already collected from TWCC and insurance carrier claim files. Upon receipt of a standard Notice of Violation, a health care provider has 20 days to either pay the proposed penalty or request a hearing. The maximum penalty for one late filing of a TWCC-69 report is $500.

The information provided through a Voluntary Compliance Conference is a means health care providers have to lower or eliminate their penalty exposure. At the conclusion of a conference, Compliance and Practices will consider any relevant mitigation offered by a health care provider. Good faith efforts taken by the health care provider to rectify the consequences of the violation and to ensure compliance will also be considered. Compliance and Practices may offer the health care provider a reduced penalty in recognition of such efforts after a careful consideration of their sufficiency in relation to the severity of the violation(s) and other factors specified in the Texas Labor Code Section 415.021(c).

Questions concerning this project or the requirements for filing the TWCC-69 Form and other medical reports should be directed to the Information Services Section of the Medical Review Division at (512) 440-3513.

Signed June 6, 1996

Todd K. Brown, Executive Director



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