(a) Pursuant to Labor Code § 411.061 and § 411.068(a)(1), an insurance company writing workers' compensation insurance in Texas shall maintain or provide accident prevention facilities that are adequate to provide accident prevention services required by the nature of its policyholders' operations, and must include:
(3) training programs;
(5) analyses of accident causes;
(6) industrial hygiene;
(7) industrial health services;
(8) qualified accident prevention personnel. To provide qualified accident prevention personnel and services, an insurance company may:
(A) employ qualified personnel;
(B) retain qualified independent contractors;
(C) contract with the policyholder to provide personnel and services; or
(D) use a combination of the methods provided in this paragraph;
(9) written procedures. An insurance company shall maintain written procedures for:
(A) notifying policyholders of the availability of accident prevention services;
(B) determining the appropriate accident prevention services for a policyholder;
(C) the specific time frame and manner in which the services will be delivered to a policyholder as required by subsection (b) of this section;
(D) providing training programs to policyholders;
(E) providing written recommendations to the policyholders, which identify hazardous conditions and work practices on the policyholder's premises if the insurance company provides accident prevention services;
(F) providing written reports to the insurance company and policyholders, which identify hazardous conditions and work practices on the policyholder's premises if the insurance company contracts out the accident prevention services or retains qualified independent contractors; and
(G) items set forth in § 166.3(a)(2)(G) of this title (relating to Annual Information Submitted by Insurance Companies); and
(10) written records, reports, and evidence of all accident prevention services provided to each policyholder.
(b) Pursuant to Labor Code § 411.068(a)(2), an insurance company shall utilize accident prevention services to prevent injuries to employees of its policyholders in a reasonable manner, which at a minimum, include:
(1) Notice of availability of accident prevention services and return-to-work coordination services. An insurance company shall include a notice on the information page or on the front of the policy containing text identical to the following in at least 10-point bold type for each workers' compensation insurance policy delivered or issued for delivery in Texas: Pursuant to Texas Labor Code § 411.066, (name of company) is required to notify its policyholders that accident prevention services are available from (name of company) at no additional charge. These services may include surveys, recommendations, training programs, consultations, analyses of accident causes, industrial hygiene, and industrial health services. (Name of company) is also required to provide return-to-work coordination services as required by Texas Labor Code § 413.021 and to notify you of the availability of the return-to-work reimbursement program for employers under Texas Labor Code § 413.022. If you would like more information, contact (name of company) at (telephone number) and (email address) for accident prevention services or (telephone number) and (email address) for return-to-work coordination services. For information about these requirements call the Texas Department of Insurance, Division of Workers' Compensation (TDI-DWC) at 1-800-687-7080 or for information about the return-to-work reimbursement program for employers call the TDI-DWC at (512) 804-5000. If (name of company) fails to respond to your request for accident prevention services or return-to-work coordination services, you may file a complaint with the TDI-DWC in writing at http://www.tdi.texas.gov or by mail to Texas Department of Insurance, Division of Workers' Compensation, MS-8, at 7551 Metro Center Drive, Austin, Texas 78744-1645;
(2) Contact and surveys following fatalities. An insurance company shall contact the policyholder within seven working days of knowledge of a work-related fatality and offer a survey. Survey offers accepted by the policyholder shall be initiated by the insurance company within 60 days of policyholder acceptance of the survey offer. No offer of a survey is required if the fatality occurred outside of Texas or was the result of an accident on a common carrier, unless the fatality involves an employee of the common carrier during the course and scope of normal job duties;
(3) Insurance company evaluation of need for service. An insurance company shall evaluate a policyholder's need for services in accordance with the procedures required by subsection (a)(9) of this section taking into consideration the following criteria:
(A) generally accepted industry standards and practices governing occupational safety and health, such as: A.M. Best, North American Industry Classification System (NAICS), Bureau of Labor Statistics data, workers' compensation classification codes, occupational safety and health standards, and underwriting requests;
(B) nature of losses;
(C) frequency of claims;
(D) loss ratio;
(E) severity of claims;
(F) risk exposure;
(G) experience modifier;
(H) premium; and
(I) any other information relevant under the circumstances;
(4) Services offered and provided by an insurance company. After evaluating and determining the policyholder's need for services, all offers of services and the provision of services shall be rendered to a policyholder within a reasonable period of time and in accordance with the insurance company's written procedures under this section and their annual information submitted under § 166.3(a)(2)(G) of this title; and
(5) Services requested by a policyholder. Notwithstanding any other provision of this section, an insurance company shall provide to each policyholder accident prevention services required by the nature of their policyholders' operations within 15 days from the date of a policyholder request for services, if appropriate services can be provided without conducting a survey; and within 60 days from the date of a policyholder request, if a survey is required. Services can be provided at a later date if circumstances require and the later date is agreed upon by the policyholder.
(c) The division may determine adequacy of an insurance company's accident prevention services in accordance with the requirements of this chapter and generally accepted tools and guidelines of loss control provision and through:
(1) review of the initial and subsequent reports of annual information, as required by § 166.3 of this title; and
(2) inspections, as specified in § 166.5 of this title (relating to Inspections of Adequacy of Accident Prevention Facilities and Services).
(d) Accident prevention services shall be provided to policyholders at no additional charge.
(e) An insurance company shall not solicit nor obtain from its policyholders a prospective waiver declining all accident prevention services. If an insurance company, pursuant to Labor Code § 411.063(a)(3), contracts with a policyholder to provide accident prevention personnel or services, this contract does not limit in any way the insurance company's authority or responsibility to comply with any statutory or regulatory requirement contained in this chapter. Insurance companies are responsible for maintaining or providing all services, including contracted services, in accordance with this chapter.
(f) This section is effective October 1, 2013.
The provisions of this §166.2 adopted to be effective October 1, 2013, 38 TexReg 2000.