1. (a) Upon determination by the commission that a violation of the Act or Rule has occurred, the commission shall determine the duration and or extent of noncompliance.

2. (b) The duration of violations shall be measured by the number of days of noncompliance. If a violation occurred, there is at least one day of noncompliance.

   1. (1) The first day of noncompliance is:

      1. (A) the first day that the violator took a noncompliant action(s); or
      2. (B) the first day after the last day that the violator had to comply with a requirement under the Act or Rules but failed to do so.
   2. (2) The last day of noncompliance is the day that the violator came into compliance by either discontinuing his noncompliant action(s) or taking the action(s) necessary to correct the noncompliance by completing his duty under the Act or Rules (such as making an owed payment plus applicable interest or correcting an improperly filed form).
   3. (3) In counting the number of days of noncompliance, both the first day of noncompliance and the last day of noncompliance are included in the count unless they are the same day.

3. (c) When a system participant commits what appear to be separate violations, they may be grouped together and treated as a single violation if they:

   1. (1) involved multiple instances of the same basic duty;
   2. (2) constituted actions or inactions occurring on the same day; and
   3. (3) involved actions or inactions due on the same day.
4. (d) Actions or inactions that involve more than one duty or prohibition, occurring on separate days, or those involving separate due dates shall be treated as separate violations.

5. (e) The following examples illustrate the concepts described in subsections (c) and (d) of this section:

   1. (1) If three weeks of indemnity benefits are all due on the same day but the carrier paid the benefits four days late, each of the three weeks is considered part of the same violation, because they were all due on the same day. This is referred to as "stacking" (because the three weeks of benefits "stacked up" into one payment) and is treated as a single violation.
   2. (2) If three weeks of indemnity benefits were due on the same day but the carrier paid them late on three different days, each week of benefits paid late is considered an individual violation, because they were due on the same day and the carrier paid each separately (representing three individual actions). This is referred to as "unstacking" (because a "stack" of three weeks of benefits that were due on the same day was unstacked) and is treated as separate violations.
   3. (3) If a carrier is late making a payment one week (ie makes a payment a few days late) and then continues to pay every seven days thereafter, only the first week is counted as late. This type of violation is called the start of a "series" of late payments. As long as the carrier stays in the series (making the payments every seven days), there is only one violation. However, if the carrier breaks the series by paying more than seven days after the prior payment in the series, then this payment would be a separate violation.
   4. (4) If a carrier underpaid a week of indemnity benefits and continued to underpay the benefits each week thereafter, the weeks of benefits included in the initial payment constitute one violation and each separate, subsequent week of benefits that was underpaid is a separate violation (because each represents a separate instance where benefits were to be accurately paid but were not).

Source Note:The provisions of this §180.10 adopted to be effective September 14, 2003, 28 TexReg 7711.