Proposed Rules Title 28

TITLE 28. INSURANCE

PART 6. OFFICE OF INJURED EMPLOYEE COUNSEL

SUBCHAPTER A. GENERAL PROVISIONS

The Office of Injured Employee Counsel (OIEC) proposes an amendment to §276.5, concerning an employer's notice requirement of OIEC's Ombudsman Program. The proposed amendment to §276.5 is necessary to reflect OIEC's new website address. This allows for continued compliance of Texas Labor Code §404.153 and §404.154, which requires employers to post notice in the workplace so their employees may be informed as to the services performed by the Ombudsman Program in accordance with House Bill (HB) 7, 79th Texas Legislature, Regular Session, 2005.

Amended §276.5 will adopt by reference the amended version of the Employer Notification of Ombudsman Program to Employees (Notice). Upon adoption, the effective date of the amended Employer Notification of Ombudsman Program to Employees will be September 1, 2013. This provides workers' compensation system participants time to post the amended Employer Notification of the Ombudsman Program.

Mr. Brian White, Deputy Public Counsel, has determined that for each year of the first five years the amended section is in effect, there shall be minimal fiscal impact to state and local governments as a result of the enforcement or administration of this rule. It is anticipated that most employers participating in the workers' compensation system have access to the internet and will be able to download and print the Notice that is required by §276.5. However, should an employer contact OIEC to request a copy of the Notice, the cost of postage, currently at 45 cents per stamp, will be needed to send the employer the Notice. Should every covered employer request OIEC to physically mail a copy of the Notice, as opposed to sending the Notice electronically or having the Notice downloaded from OIEC's website as anticipated, a total postage cost of $103,240.80 may be incurred by the State of Texas. This estimate is based on the current cost of postage and data provided by the Texas Department of Insurance's Workers' Compensation Research and Evaluation Group, October 2012 report, "Setting the Standard: An Analysis of the Impact of the 2005 Legislative Reforms on the Texas Workers' Compensation System, 2012 Results". The formula that was used to calculate the number of workers' compensation subscribers using 2004 data was also used to calculate the number of workers' compensation subscribers for 2012. The resulting estimate is that 229,424 employers participate in the workers' compensation system. There will be no measurable effect on local employment or the local economy as a result of this amended proposal.

Mr. White has also determined that for each year of the first five years the section is in effect, the public benefits anticipated as a result of the amended proposed section will include a clear understanding of OIEC's statutory mission to assist and advocate on behalf of the injured employees of Texas and an employer and employee population that is more informed as to the services provided by the Ombudsman Program.

All stakeholders will benefit from an increased understanding of OIEC's purpose and the services the Ombudsman Program provides in the workers' compensation system. Employers will benefit from an awareness of services provided by the Ombudsman Program, which is financed through workers' compensation premiums, and employees will benefit from the awareness of the Ombudsman Program, which is specifically designed to assist them should they ever incur a work-related injury. Informing injured employees of OIEC will increase the likelihood that they will be educated as to their rights and responsibilities within the workers' compensation system. It is anticipated that this increased education will help injured employees get in contact earlier with the appropriate agency to provide assistance they require. As a result, it is likely that more injured employees' compensable injuries will be reported within the required 30-day timeframe and therefore covered by insurance carriers. The workers' compensation system is anticipated to function more efficiently as disputes are resolved more quickly, and as a result, the overriding objectives of getting injured employees well and back to work is furthered.

The Department of Information Resources (DIR) provides the management, registration, and authorization for the use of the texas.gov domain. The purpose of the domain name change was led by DIR to strengthen the Texas government brand recognition by designating texas.gov as the domain name for State agencies. The naming structure is exclusive to government use and allows public trust and citizen confidence to be strengthened in knowing that they are using an official Texas government website when accessing a texas.gov site.

As required by the Texas Government Code §2006.002(c), OIEC has determined that the amended proposal will not have an adverse economic affect on small or micro-business. Compliance with Texas Labor Code §409.005 is required for Texas employers participating in the workers' compensation system.

OIEC has determined that this proposal is not a "major environmental rule" as defined by Texas Government Code §2001.0225. Therefore a regulatory flexibility analysis is not required.

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

To be considered, written comments on the proposal must be submitted no later than 5:00 p.m. on June 3, 2013 to Brian White, Deputy Public Counsel/Chief of Staff, Office of Injured Employee Counsel, Mail Code 50, and 7551 Metro Center Drive, Austin, Texas 78744. A request for a public hearing should be submitted separately to the Deputy Public Counsel/Chief of Staff.

The amended section is proposed pursuant to Texas Labor Code §§404.004(a), 404.153, 404.154 and 404.006. Section 404.004 requires OIEC to prepare information of public interest describing the functions of the agency. Section 404.153 provides that each employer shall notify its employees of the ombudsman program as prescribed by OIEC. Section 404.154 provides that OIEC shall widely disseminate information about the ombudsman program. Section 404.006 provides that the public counsel shall adopt rules as necessary to implement Chapter 404 of the Labor Code.

The following sections are affected by this proposal: Texas Labor Code §§404.151, 404.152, 404.154, 404.103, 404.105, and 404.006.

§276.5.Employer's Notification of Ombudsman Program to Employees.

(a) All employers participating in the workers' compensation system shall post notice of the Office of Injured Employee Counsel's (OIEC) Ombudsman Program. This notice shall be posted in the personnel office, if the employer has a personnel office, and in the workplace where each employee is likely to see the notice on a regular basis.

(b) This notice of the Ombudsman Program shall be publicly posted in English, Spanish, and any other language that is common to the employer's employees.

(1) Downloading the form on OIEC's website at: www.oiec.texas.gov [~~www.oiec.state.tx.us~~]; or

(2) Requesting the notice by calling OIEC's toll-free telephone number at: 1-866-EZE-OIEC (1-866-393-6432).

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 22, 2013.

TRD-201301613

Brian White

Deputy Public Counsel/Chief of Staff

Office of Injured Employee Counsel

Earliest possible date of adoption: June 2, 2013

For further information, please call: (512) 804-4170