TITLE 28.INSURANCE

Part 1. TEXAS DEPARTMENT OF INSURANCE

Chapter 9. TITLE INSURANCE

Subchapter A. BASIC MANUAL OF RULES, RATES AND FORMS FOR THE WRITING OF TITLE INSURANCE IN THE STATE OF TEXAS

28 TAC §9.30

The Texas Department of Insurance has received a petition proposing the adoption by reference of amendments to endorsements and procedural rules in the Basic Manual of Rules, Rates and Forms for the Writing of Title Insurance in the State of Texas (Basic Manual) relating to home equity. The amendments to §9.30 are proposed to adopt by reference the amended endorsements, Forms T-42, T-42.1, T-44, T-45, and T-46 and the amended procedural rules, P-46 and P-47 to the Basic Manual. The 78th Legislature, Regular Session, adopted Senate Joint Resolution 42 proposing a constitutional amendment authorizing home equity lines of credit, adding requirements for one day advance disclosure of all fees, and revising technical procedures regarding home equity loans on Texas homestead property. By voter approval on September 13, 2003, Section 50, Article XVI of the Texas Constitution was amended to provide for home equity lines of credit, to require an additional notice to borrowers prior to the origination of such mortgages, and to permit lenders to take certain actions to cure origination defects with such mortgages, including offering borrowers the opportunity to refinance such mortgages under certain circumstances. Stewart Title Guaranty Company (Stewart) has proposed amendments to the applicable procedural rules and endorsements in the Basic Manual to facilitate the issuing of mortgagee title policies insuring home equity liens on homestead property. The proposed modifications to the existing title insurance forms relating to home equity refer to the correct and applicable law, provide insurance for future advances under home equity lines of credit, and insure disclosure of fees by title insurance companies or title insurance agents who close home equity loans. The proposed amended endorsements and procedural rules will enable title insurance companies to write additional title insurance coverages regarding home equity lending in Texas. The proposed amendments will also provide both lenders and borrowers more certainty regarding the meaning of the law and a clear means of resolving origination problems.

The proposed amended endorsement forms are as follows: Proposed amendment to the Equity Loan Mortgage Endorsement (T-42) conforms this endorsement to the new amendments to constitutional provisions for home equity loans, including new provisions for home equity lines of credit. Proposed amendment to the Supplemental Coverage Equity Loan Mortgage Endorsement (T-42.1) provides insurance of advance disclosure of fees as required by the new amendments to constitutional provisions for home equity loans and also incorporates a definition of business day for purposes of the endorsement. Proposed amendments to the Texas Residential Limited Coverage Junior Mortgagee Policy (T-44) and the Texas Residential Limited Coverage Junior Mortgagee Policy Down Date Endorsement (T-45) conform these endorsements to the new amendments to constitutional provisions for home equity loans. Proposed amendment to the Texas Residential Limited Coverage Junior Mortgagee Policy Variable Rate Endorsement (T-46) conforms this endorsement to the new amendments to constitutional provisions for home equity loans, including new provisions for home equity lines of credit and adds to the name of the endorsement a reference to home equity line of credit.

The proposed amended procedural rules are Procedural Rule P-46, which incorporates references to applicable constitutional provisions for home equity lines of credit and to the modified Texas Residential Limited Coverage Junior Mortgagee Policy Home Equity Line of Credit/Variable Rate Endorsement (T-46), and Procedural Rule P-47, which establishes requirements for issuance of the proposed additional coverages to the Supplemental Coverage Equity Loan Mortgage Endorsement (T-42.1). The department has filed a copy of each of the proposed amended forms and procedural rules with the Secretary of State's Texas Register section. Persons desiring copies of the proposed items can obtain them from the Office of the Chief Clerk, Texas Department of Insurance, 333 Guadalupe Street, Austin, Texas, 78714-9104. To request copies, please contact Sylvia Gutierrez at (512) 463-6327.

Robert R. Carter, Jr., Deputy Commissioner for the Title Division, has determined that, for each year of the first five years the amendments are in effect, there will be no fiscal impact on state or local government as a result of enforcing or administering the amendments. Mr. Carter has also determined that there will be no effect on local employment or the local economy.

Mr. Carter has also determined that for each year of the first five years the proposed amendments are in effect, the public benefit anticipated as a result of administering and enforcing the amendments will be to ensure the appropriate policy and endorsement language on title insurance policies covering home equity loans. The department expects the public to benefit from the introduction of the expanded coverage offered by the proposed amendments, which is likely to facilitate the continued availability of mortgage loan funds in the State of Texas. Both Texas homeowners and lenders will benefit from a strong secondary market for Texas home equity loans. The department expects the current premium rates for these existing endorsements to fully cover the costs of producing the amended endorsements. The sale of such endorsements is voluntary and imposes no additional regulatory costs on companies that decide to participate in the market. Additionally, the department anticipates that the premium schedules will fully compensate small, large, and micro-businesses, and therefore, expects no differential impact between small, large, and micro-businesses that decide to participate in such sales. The cost per hour of labor should not vary between small, large, and micro-businesses. Further, it is neither legal nor feasible to exempt small or micro-businesses or to waive compliance considering the purpose of the efficient regulation of title insurance for which the amendments are to be adopted.

To be considered, written comments on the proposal must be submitted no later than 5:00 p.m. on February 16, 2004, to Gene C. Jarmon, General Counsel and Chief Clerk, Mail Code 113-2A, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. An additional copy of the comments must be submitted simultaneously to Robert R. Carter, Jr., Deputy Commissioner, Title Division, Mail Code 106-2T, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. Request for a public hearing should be submitted separately to the Chief Clerk's office.

The amended section is proposed pursuant to the Insurance Code, Articles 9.07, 9.21, and §36.001, and Section 50, Article XVI of the Texas Constitution. Article 9.07 authorizes and requires the commissioner to promulgate or approve rules and policy forms of title insurance and otherwise to provide for the regulation of the business of title insurance. Article 9.21 authorizes the commissioner to promulgate and enforce rules prescribing underwriting standards and practices, and to promulgate and enforce all other rules necessary to accomplish the purposes of Chapter 9, concerning regulation of title insurance. Section 36.001 of the Insurance Code provides that the Commissioner of Insurance may adopt any rules necessary and appropriate to implement the powers and duties of the Texas Department of Insurance under the Insurance Code and other laws of this state. By voter approval on September 13, 2003, Section 50, Article XVI of the Texas Constitution was amended to provide for home equity lines of credit, to require an additional notice to borrowers prior to the origination of such mortgages, and to permit lenders to take certain actions to cure origination defects with such mortgages, including offering borrowers the opportunity to refinance such mortgages under certain circumstances.

The following statutes are affected by this proposal: Insurance Code, Articles 9.07 and 9.21.

§9.30.Procedural Rules, Rates, and Forms Relating to Home Equity [ Rule, Rate, and Form for Supplemental Coverage Equity Loan Mortgage Endorsement (T-42.1) and Rate for Equity Loan Mortgage Endorsement (T-42) ].

In addition to material adopted by reference under §9.1 of this title (relating to Basic Manual of Rules, Rates and Forms for the Writing of Title Insurance in the State of Texas (the manual)), the Texas Department of Insurance adopts by reference, as part of the manual, amendments to Procedural Rule P-46 and Procedural Rule P-47 and endorsement forms, Equity Loan Mortgage Endorsement (T-42), [ form T-42.1 for ] Supplemental Coverage Equity Loan Mortgage Endorsement (T-42.1) , Texas Residential Limited Coverage Junior Mortgagee Policy (T-44), Texas Residential Limited Coverage Junior Mortgagee Policy Down Date Endorsement (T-45), and Texas Residential Limited Coverage Junior Mortgagee Policy Home Equity Line of Credit/Variable Rate Endorsement (T-46), as amended effective March 15, 2004 [ and Rate Rule 28 Premium for Equity Loan Mortgage Endorsement (T-42) and Supplemental Coverage Equity Loan Mortgage Endorsement (T-42.1) ]. This document is available from and on file at the Texas Department of Insurance, Title Division, Mail Code 106-2T, William P. Hobby State Office Building, 333 Guadalupe Street, P.O. Box 149104, Austin, Texas 78714-9104.

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 January 2, 2004.

TRD-200400002

Gene C. Jarmon

General Counsel and Chief Clerk

Texas Department of Insurance

Earliest possible date of adoption: February 15, 2004

For further information, please call: (512) 463-6327


Part 2. TEXAS WORKERS' COMPENSATION COMMISSION

Chapter 42. MEDICAL BENEFITS

Subchapter B. MEDICAL COST EVALUATION

The Texas Workers' Compensation Commission (the commission) proposes amendments to §42.105 (Medical Fee Guideline), and the repeal of §42.115 (Pharmaceutical Fee Guideline).

The amendments to §42.105 are proposed to make all fee guidelines and pharmaceutical benefit provisions under Chapter 134 of the commission's rules applicable to the reimbursement of medical treatments and services provided to employees who sustained compensable injuries before January 1, 1991 ("old law" claims).

Currently, only §134.201 of that chapter provides for the reimbursement of professional medical treatments and services that relate to "old law" claims. In addition, there is currently no facility fee guideline applicable to the reimbursement of facility services that relate to "old law" claims. The proposed amendments to §42.105 provide that §134.201 will continue to apply to "old law" claim for professional medical treatments and services rendered before May 1, 2004; and that all the fee guidelines and pharmaceutical benefit provisions within Chapter 134 will apply to "old law" claims for professional medical treatments and services rendered on or after May 1, 2004. The proposed amendments to §42.105 will also make any facility fee guidelines currently in effect, and any facility or other health care fee guidelines adopted by the commission in the future, applicable to "old law" claims.

The proposed amendments to §42.105 do not make all of Chapter 134 applicable to "old law" claims. Only the fee guideline provisions currently found in Subchapters C and D, and the pharmaceutical benefit provisions currently found in Subchapter F, and any fee guideline provisions or pharmaceutical benefit provisions adopted by the commission under Chapter 134 in the future, would apply. The only exception would be §134.501, relating to Initial Pharmaceutical Coverage. Section 134.501, which addresses the reimbursement of pharmaceutical services provided within the first seven days following the date of injury for new law cases.

The applicable sections of Chapter 134 currently in effect would be as follows:

134.201 Medical Fee Guideline for Medical Treatments and Services Provided under the Texas Workers' Compensation Act

134.202 Medical Fee Guideline

134.203 Dental Fee Guideline

134.401 Acute Care Inpatient Hospital Fee Guideline

134.500 Definitions

134.502 Pharmaceutical Services

134.503 Reimbursement Methodology

134.504 Pharmaceutical Expenses Incurred by the Injured Employee

134.506 Outpatient Drug Formulary

The commission proposes to amend §42.105 as follows:

Amend the title to read, "Medical Fee Guidelines and Pharmaceutical Benefits."

Add a new subsection (a), which provides that the fee guidelines and pharmaceutical benefit provisions under Chapter 134 of this title (regarding Benefits - Guidelines for Medical Services, Charges, and Payments) are applicable to medical treatments and services provided on or after May 1, 2004.

Amend subsection (b) to state that, for medical treatments and services provided before May 1, 2004, the maximum allowable reimbursement is the lesser of the provider's usual fees and charges or the reimbursement established by the applicable Medical Fee Guideline adopted by the commission in §134.201.

Delete subsections (c) and (d) because reimbursement of the purchase or rental of durable medical equipment is addressed in the established guidelines, and to eliminate unnecessary excess verbiage.

A full explanation of the methodology used in developing the Texas Workers' Compensation Commission Medical Fee Guideline 1996 , can be found in the preamble to the adoption 28 TAC §134.201, published in the March 12, 1996, Texas Register (21 TexReg 2361).

A full explanation of the methodology used in developing the Acute Care Inpatient Hospital Fee Guideline, 1997 can be found in the preamble to the adoption of 28 TAC §134.401, published in the July 4, 1997, Texas Register (22 TexReg 6305).

A full explanation of the methodology used in developing the Reimbursement Methodology under Subchapter F, Pharmaceutical Benefits, of Chapter 134 can be found in the preamble to the adoption of 28 TAC §134.503, published in August 31, 2001, Texas Register (26 TexReg 6584).

A full explanation of the methodology used in developing the 2002 Medical Fee Guideline , can be found in the preamble to the adoption of 28 TAC §134.202, published in May 10, 2002, Texas Register (28 TexReg 4048). Additionally, a supplemental preamble further explaining the development of the 2002 Medical Fee Guideline , §134.202, can be found in the December 27, 2002, publication of the Texas Register (27 TexReg 12304).

An explanation of the development of proposed §134.402, Ambulatory Surgical Center Fee Guideline, to be considered as one of several rules that will comprise Subchapter E, regarding Health Facility Fees, under Chapter 134, can be found in the proposal preamble of the October 31, 2003, publication of the Texas Register (28 TexReg 9405).

The repeal of §42.115, the Pharmaceutical Fee Guideline, is proposed because provisions regarding reimbursement for pharmaceutical benefits were incorporated into §134.201, The Texas Workers' Compensation Medical Fee Guideline, 1996 (1996 MFG), which is applicable for dates of service before May 1, 2004. For dates of services on or after May 1, 2004, pharmaceutical benefits related to "old law" claims are to be reimbursed under Chapter 134, Subchapter F, Pharmaceutical Benefits.

A full explanation of the methodology used in developing the Texas Workers' Compensation Commission Medical Fee Guideline 1996 , can be found in the preamble to the adoption 28 TAC §134.201, published in the March 12, 1996, Texas Register (21 TexReg 2361).

Judy Bruce, Director of the commission's Medical Review Division, has determined that for the first five-year period the proposed rules are in effect there will be no increased costs to state and local governments as a result of enforcing or administering the rules. State and local governments as regulated entities may realize a slight savings in costs or resources because administering one reimbursement system on or after May 1, 2004, may reduce potential confusion associated with the administration of two separate reimbursement systems for "old law" and "new law" claims, which may, in turn, reduce the number of disputes regarding payments for medical treatments and services. For the same reasons, the Medical Review Division should resolve reimbursement disputes more quickly, resulting in additional savings in costs to state and local governments as a result of enforcing or administering the rules.

The State Office of Risk Management and other self-insured governmental entities should experience a reduction in the payment rates for medical benefits as a result of the proposed amendments and repeal. The impact of those reductions will be dependent on the number of "old law" claims that remain active and the quantity of services provided. Since there is an overall reduction in reimbursement amounts under Chapter 134, that overall reduction will likely extend to "old law" claims. This same logic should apply to any other state or local government "old law" claims.

No impact to revenues of state or local governments is anticipated as a result of enforcing or administering the proposed rules.

Ms. Bruce has also determined that for each year of the first five years the proposed amendments and repeal are in effect the public benefit anticipated as a result of enforcing the rules will be greater efficiency in administering one reimbursement system for both "old law" and "new law" claims. The public will also benefit from the additional medical cost containment measures designed to assure continued quality of medical care, which are included in the more recently adopted provisions of Chapter 134. Additionally, the public will benefit from any future revisions or guidelines within Chapter 134, which will include these same features.

Based on current patterns of utilization, insurance carriers should experience a decrease in total medical service payments because of the overall reduction in reimbursement amounts under Chapter 134. It is also anticipated that insurance carriers will realize a slight savings in costs or resources as the number of disputes regarding payments for medical treatments and services may be reduced because administering one reimbursement system on or after May 1, 2004, will result in administrative efficiencies. These savings should favorably impact premiums thus benefiting employers and benefiting employees because appropriate cost containment favors workers' compensation coverage for employees.

Injured employees will benefit from these amended rules because the rules will assure reimbursement equity between services provided to employees who were injured prior to January 1, 1991, and services provided to employees injured after that date. There will be no fiscal impact on injured employees as a result of enforcing these rules.

For health care providers, the benefits of the proposed rule amendments are anticipated to minimize disputes and encourage prompt payments to health care providers. Because of some redistribution of total reimbursements, fiscal impact of revisions to the fee guidelines and pharmaceutical benefits on health care providers will depend on their area of practice. Some health care providers will experience an increase in fees for services, while others will experience a decrease in fees and still others will experience no fiscal impact as a result of the reimbursement system. Overall, there is expected to be a decrease in payments to health care providers.

There will be no adverse effect on small or micro businesses. There will be no difference in the costs of compliance for small or micro businesses as compared to large businesses.

Comments on the proposed rule or requests for a public hearing must be received by 5:00 p.m., February 16, 2004. You may comment via the Internet by accessing the commission's website at www.twcc.state.tx.us, clicking on "Laws, Rules and Forms," and then on "Proposed Rules." This medium for commenting will help you organize your comments. You may also comment by emailing your comments to RuleComments@twcc.state.tx.us or by mailing or delivering your comments to Linda Velasquez, Legal Services , Mailstop #4-D, Texas Workers' Compensation Commission, 7551 Metro Center Drive, Suite #100, Austin, Texas 78744-1609.

Commenters are requested to clearly identify by number the specific rule and paragraph (e.g., 42.105(a), 42.105(b)(1)(A), 42.115, etc.) commented upon. The commission may not be able to respond to comments that cannot be linked to a particular proposed rule. Along with your comment, it is suggested that you include the reasoning for the comment in order for commission staff to fully evaluate your recommendations.

Based upon various considerations, including comments received and the Executive Director and staff's review, the rules as adopted may be revised from the rules as proposed in whole or in part.

Persons in support or opposition of the rule as proposed, in whole or in part, are encouraged to comment to that effect. The failure to comment accordingly is not indicative of support or opposition.

The proposed amendments and repeal affect the following statutes: Texas Revised Civil Statutes, Article 8306, §7(b) (Vernon 1990), which required the Industrial Accident Board (board) to adopt rules that establish guidelines for the charges and utilization of medical services and that implement medical cost containment measures; Texas Revised Civil Statutes, Article 8307, §4(a) (1990), which authorized the board to make rules to carry out and enforce the law in effect at that time; Texas Revised Civil Statutes, Article 8308-17.12(b), which authorizes the commission to delegate appropriate powers and duties to the Executive Director to administer the workers' compensation law in effect prior to the effective date of the new Texas Workers' Compensation Act (which delegation was made by the Commission on April 1, 1990; and Texas Revised Civil Statutes, Article 8308-17.18(d), which states that the commission shall process claims for injuries occurring prior to January 1, 1991, in accordance with the law in effect on the date of injury, and the former law is continued in effect for that purpose.

28 TAC §42.105

The amendment is proposed under Texas Revised Civil Statutes, Article 8306, §7(b); Article 8307, §4(a); Article 8308-17.12(b); and Article 8308-17.18(d) (Vernon 1990).

The previously cited sections of the Texas Revised Civil Statutes are affected by this proposed rule action. No other code or statute is affected by this rule action.

§42.105.Medical Fee Guidelines and Pharmaceutical Benefits Guideline.

(a) Reimbursement for medical treatments and services provided on or after May 1, 2004, shall be made pursuant to the fee guidelines and pharmaceutical benefit provisions under Chapter 134 of this title (regarding Benefits - Guidelines for Medical Services, Charges, and Payments).

(b) [ (a) ] For medical treatments and services provided before May 1, 2004, the [ The ] maximum allowable reimbursement [ charge under the Medical Fee Guideline for Services Rendered under the Texas Workers' Compensation Act ] is the lesser of:

(1) the provider's usual fees and charges; or

(2) the reimbursement [ fees and charges ] established by the applicable Medical Fee Guideline adopted by the commission in [ use of a relative value scale adopted under subsection (b) of this section. ]

[ (b) The commission will publish and adopt by reference herein a relative value scale used in conjunction with the 1990 CPT (Physician's Current Procedural Terminology) as part of the Medical Fee Guideline for Services Rendered under the Texas Workers' Compensation Act. This guideline is published as the 1991 Texas Workers' Compensation Commission Medical Fee Guideline, which is incorporated herein by reference. This shall be the same guideline adopted by the Texas Workers' Compensation Commission and incorporated into ] §134.201 of this title (relating to Medical Fee Guideline for Medical Treatments and Services [ and Equipment ] Provided under the Texas Workers' Compensation Act) [ as it exists on the effective date of this section and as it may be amended thereafter by the commissioners. The guideline may be obtained from the Reprographics Department, Texas Workers' Compensation Commission, The Southfield Building, 4000 South I-H 35, Austin, Texas 78704 ].

[ (c) The allowable charge for the purchase or rental of durable medical equipment is the lesser of:]

[ (1) the provider's usual fees and charges; or]

[ (2) the fees and charges established in the durable medical equipment section of the Medical Fee Guideline, which is incorporated herein by reference.]

[ (d) The guidelines established herein shall be used for services rendered, and durable medical equipment prescribed, on and after the effective date of this section.]

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 January 5, 2004.

TRD-200400013

Susan Cory

General Counsel

Texas Workers' Compensation Commission

Earliest possible date of adoption: February 15, 2004

For further information, please call: (512) 804-4287


28 TAC §42.115

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Workers' Compensation Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal is proposed under Texas Revised Civil Statutes, Article 8306, §7(b); Article 8307, §4(a); Article 8308-17.12(b); and Article 8308-17.18(d) (Vernon 1990).

The previously cited sections of the Texas Revised Civil Statutes are affected by this proposed rule action. No other code or statute is affected by this rule action.

§42.115.Pharmaceutical Fee Guideline.

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 January 5, 2004.

TRD-200400012

Susan Cory

General Counsel

Texas Workers' Compensation Commission

Earliest possible date of adoption: February 15, 2004

For further information, please call: (512) 804-4287