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A standoff between members of the Texas House of Representatives and Senate has put workers’ compensation reform legislation on hold as legislators scramble to complete their work before the session ends on May 30. Efforts to overhaul the system that provides treatment and benefits for workers injured on the job stalled after the two legislative chambers passed competing bills. The Senate voted 29-0 on March 15 for a bill by state Sen. Todd Staples, R-Palestine, Texas, which would create a new agency headed by a single commissioner appointed by the governor to replace the six part-time commissioners on the Texas Workers’Compensation Commission (TWCC). Under S.B. 5, the Texas Department of Workers’ Compensation would regulate new physician networks — similar to managed-care networks — for the treatment of workers injured on the job. Only physicians on the TWCC’s list of approved doctors can treat injured workers under current law. Staples says S.B. 5 is the result of an exhaustive study conducted by a select committee appointed by Lt. Gov. David Dewhurst to examine ways to address a crisis in the state’s workers’ compensation system brought on by the high costs of such coverage, escalating costs of treating injured workers and the low benefits for the workers. To show his support for the Senate bill, Dewhurst joined Staples at a January news conference when S.B. 5 was unveiled. The House passed a separate workers’ compensation reform bill by Rep. Burt Solomons, R-Carrollton, Texas, chairman of the state’s Sunset Advisory Commission on a non-record vote March 31. H.B. 7, TWCC’s sunset bill, would abolish the commission and reassign many of its duties to the Texas Department of Insurance. Like the Senate bill, the House bill authorizes the creation of physician networks. Each bill also provides for a new Office of Injured Employee Counsel to assist injured workers in getting through the bureaucracy of workers’ compensation. In the legislative process, the House and Senate can — and often do — disagree over provisions in a bill. However, the two chambers have to work on the same bill. A conference committee made up of House and Senate members works out the differences after each chamber passes its version of the bill. S.B. 5 has been pending in the House Business and Industry Committee since March 29. The Senate referred H.B. 7 to the Senate State Affairs Committee on April 6. WORKING ON A RESOLUTION The two bills are likely to remain in limbo until the House and Senate sponsors come to an agreement about which bill will advance. “The question is who’s going to blink first,” says Joe Anderson, a partner in Austin’s Burns, Anderson, Jury & Brenner. “Everyone is kind of in a wait-and-see situation,” says Anderson, who represents employers and insurance carriers in workers’ compensation disputes. Anderson says the key is going to be what the House and Senate leadership wants done about workers’ compensation. Solomons says Staples presented ideas for resolving the problem during a meeting between the two lawmakers on April 20. “I’m looking at his ideas,” Solomons says. The two lawmakers, both members of the Legislature since 1995, are defensive when asked why there are two workers’ compensation bills. “Everyone knew we were going to have a sunset bill,” says Solomons, of counsel at Bell, Nunnally & Martin in Dallas. The problem, Solomons says, is the Senate wanted its own workers’compensation bill. “It flies in the face of allowing the Sunset Commission to do its statutory job,” he says. Staples says the sunset process — which each state agency must go through at least once every 12 years — traditionally deals with structural changes in an agency, not policy issues. Solomons’ bill addresses policy issues — such as the creation of physician networks — as well as structural changes. “I personally feel very strongly that sunset bills need to be pure to the process,” says Sen. Jane Nelson, R-Lewisville, a former chairman of the Sunset Commission. “Policy bills need to be separate,” she says. Nelson filed S.B. 400, a companion bill to Solomons’ H.B. 7. However, she also is a co-author of Staples’ S.B. 5. Rep. Warren Chisum, R-Pampa, Texas, a former vice chairman of the Sunset Commission, says sunset bills often address policy issues. He says sunset bills can cover anything except an agency’s state appropriation. “The policy has always been that those agencies being addressed by the Sunset Commission would be addressed by the sunset bill,” Chisum says. Chisum says the Sunset Commission is unique in that it is not a committee of either the House or Senate and includes members from both chambers as well as public members. The commission does a good job of looking at the inner workings of an agency, he says. Anderson says H.B. 7 and S.B. 5 are fairly similar to each other. The “biggest chunk” of each bill involves the physician networks, he says. Employers will be disappointed if the impasse over the two bills prevents the Legislature from doing anything on workers’ compensation, Anderson says. “They’ve been looking for substantial reforms,” he adds. Rick Levy, legal director for the Texas AFL/CIO and a partner in Austin’s Deats, Durst, Owen & Levy, says the labor union wants the problems in the workers’ compensation system addressed but remains concerned about the insurance companies’ control of the medical delivery system through the networks that either of the bills would create. “It’s going to be up to the insurance companies to decide which doctors are going to treat workers,” Levy says. If Solomons and Staples do not work out their differences over the two bills, the Legislature could consider a third piece of legislation that would allow the TWCC to stay in business. H.B. 3121 by Rep. Helen Giddings, D-Dallas, would continue the commission until Sept. 1, 2017. That bill, which is pending in the House Business and Industry Committee that Giddings chairs, also provides for the TWCC to study health-care provider networks for injured workers. However, Levy believes that the House and Senate will come to an agreement on the bills sponsored by Solomons and Staples. “When things look like an impasse in April, often a way is found in May,” Levy says.

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