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Civil Litigation No. 03-02-00429-CV, 5/30/2003. Click here for the full text of this decision FACTS: Individual hospitals and hospital systems appeal a declaratory judgment in favor of Continental Casualty Co. and others who pay worker’s compensation medical claims. The hospitals filed claims for medical dispute resolution after the invalidation of the 1992 Acute Care Hospital Fee Guideline. At issue is whether Texas Worker’s Compensation Commission rule 133.305(a) bars the hospitals’ claims because they were filed with the Commission more than one year after the date the hospital services were provided. 28 Texas Administrative Code �133.305(a). HOLDING: Affirmed. The hospitals appeal by the following two issues: 1. rule 133.305(a) does not bar the hospitals’ resubmitted claims because the time limit for filing claims under the statute was tolled by the pendency of the litigation brought to invalidate the 1992 Fee Guidelines; and 2. application of rule 133.305(a) was temporarily waived by the commission in a 1997 settlement agreement. Relying on Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex. 1991), the hospitals argue that limitations periods are tolled for the second action if the viability of the second cause of action depends upon the outcome of the first. The hospitals’ reliance on Hughesis misplaced. The actual rule stated in Hughesis that “where a person is preventedfrom exercising his legal remedy by the pendency of legal proceedings, the time during which he is thus preventedshould not be counted against him in determining whether limitations barred his right.” The hospitals were not “prevented” or “precluded” from seeking additional reimbursement. The hospitals claim that seeking additional reimbursement through the commission’s medical dispute resolution process depended entirely on the outcome of their challenge to the 1992 Fee Guideline. However, no pending legal proceeding prevented the hospitals from timely filing their claims at the commission. The declaratory judgment action was not the exclusive method to challenge the validity of the 1992 Fee Guideline; therefore, the institution of such suit did not shield the hospitals from timely filing their requests for medical dispute resolution. The hospitals were free to challenge the validity of the 1992 Fee Guideline before the agency in addition to seeking a declaratory judgment. Additionally, the hospitals could have continued to seek additional reimbursement with supporting evidence showing the additional amount is fair and reasonable. As this court held in Methodist Hospitals v. Texas Worker’s Compensation Commission, 874 S.W.2d 144 (Tex. App. – Austin 1994, no writ), guidelines merely assist carriers and the commission in determining whether medical charges are “fair and reasonable.” The commission is free to compensate providers an amount it deems has been shownto be appropriate. Moreover, the hospitals could have sought an injunction against the application of rule 133.305(a) during the pendency of their suit to invalidate the 1992 Fee Guidelines, as the plaintiffs did in Patient Advocates of Tex. v. Texas Workers Comp. Comm’n, 80 S.W.3d 66 (Tex. App. – Austin 2002, pet. granted). Rule 133.305(a) was not tolled while the 1992 Fee Guideline was being challenged. The hospitals advance the theory that the commission suspended rule 133.305(a) in 1997 when it entered into the settlement agreement with the hospitals. Assuming without deciding that the terms of the settlement agreement implied a waiver of the one-year rule, the executive director does not have the authority to effectuate such a waiver of a lawfully enacted agency rule. OPINION: Puryear, J.; Law, C.J., Smith and Puryear, JJ.

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