The following words and terms, when used in this Chapter, shall have the following meanings, unless the context clearly indicates otherwise.

1. (1) Abusive practice--a practice that:

   1. (A) does not meet professionally recognized standards for health care or insurance claims adjusting; or
   2. (B) does not meet standards required by the Act, rules, or previous notification to system participant; or

   3. (C) is inconsistent with sound fiscal, business, or medical practices and that results in:

      1. (i) unnecessary system costs or in reimbursement for services that are not medically necessary; or
      2. (ii) improper reduction or increase of benefits.
2. (2) Accident Prevention Services Inspection--an inspection under Chapter 166 under this title (relating to Workers' Health and Safety - Accident Prevention Services) that focuses on carrier's duties to provide accident prevention services under Texas Labor Code Chapter 411, Subchapter E and Commission Rule.
3. (3) Act--the Texas Workers' Compensation Act, Texas Labor Code Title V, Subtitle A.
4. (4) Administrative Law Judge--an administrative law judge (ALJ) designated by the State Office of Administrative Hearings (SOAH) to preside over the hearing, or a hearing officer of a state or federal tribunal which would include commission hearing officers and appeals panel judges.
5. (5) Audit Violations--violations discovered through a census or statistical sampling of the alleged violator. Audit Violations are representative of overall compliance in the audited Compliance Category(s).
6. (6) Agent--a person or entity that a system participant (insurance carrier, health care provider, employer, employee, or attorney) contracts with or utilizes for the purpose of providing claims service or fulfilling duties under the Act and Rules. The system participant that the agent works on behalf of is responsible for the acts and omissions of that agent executed in performance of services for the participant.
7. (7) Charged Person (also Alleged Violator)--the system participant who is charged with an administrative violation or wrongful act. As used in these Rules, charged person includes both person(s) initially charged and those found guilty of an administrative violation(s).
8. (8) Compliance--a system participant is in compliance if the system participant timely and accurately fulfills his duties under the Act and Rules in the form and manner required (does not commit a violation by an act of omission or commission) and if the system participant does not commit an act which is prohibited.
9. (9) Compliance Audit (also Performance Review)--An audit of compliance with one or more duties under the Act and Rules, other than monitoring or review activities involving the Medical Advisor or the Medical Quality Review Panel. These audits are conducted using a census or statistical sampling to ensure that the findings of the audit are representative of overall performance in the area being audited.
10. (10) Compliance Category--a group of related duties under the Act and/or Rules.
11. (11) Compliance Rate--The percentage of duties that are met by a system participant, as reported by or on behalf of the system participant, or as validated by the commission. Compliance rates are validated using censuses or statistical sampling.
12. (12) Compliance Standard--a rate of compliance that a system participant is minimally expected to meet.
13. (13) Continued Noncompliance (also Active Noncompliance)--a system participant is in "continued noncompliance " if the system participant has committed a violation of the Act or Rules and has yet to take action to come into full compliance. For example, a system participant who fails to file a required report (or who files an incomplete report) would be in "continued noncompliance". The system participant could come into compliance by filing a properly completed report (although, doing so would not eliminate the existence of a violation for failing to timely file a complete report in the first place).
14. (14) Controlled substances--"controlled substance" as defined by the Texas Controlled Substances Act (Texas Civil Acts, Article 4476-15) or its successor and the Federal Controlled Substances Act (21 USCA §8.01 et seq.) or its successor.

15. (15) Conviction or convicted--

    1. (A) A system participant is considered to have been convicted when:

       1. (i) a judgment of conviction has been entered against the system participant in a federal, state, or local court;
       2. (ii) the system participant has been found guilty in a federal, state, or local court;
       3. (iii) the system participant has entered a plea of guilty or nolo contendere (no contest) that has been accepted by a federal, state, or local court;
       4. (iv) the system participant has entered a first offender or other program and judgment of conviction has been withheld; or
       5. (v) the system participant has received probation or community supervision, including deferred adjudication.

    2. (B) A conviction is still a conviction until and unless overturned on appeal even if:

       1. (i) it is stayed, deferred, or probated;
       2. (ii) an appeal is pending;
       3. (iii) the judgment of conviction or other record related to the conduct is expunged; or
       4. (iv) the system participant has been discharged from probation or community supervision, including deferred adjudication.
16. (16) Demonstrable Harm--significant physical or emotional harm to an injured employee or significant economic harm to a system participant.
17. (17) Emergency--as defined in §133.1 of this Title (relating to Definitions for Chapter 133).
18. (18) Frivolous--that which does not have a basis in fact or is not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.
19. (19) Immediate post-injury medical care--that health care provided on the date that the employee first seeks medical attention for the workers ' compensation injury.
20. (20) Intentionally--a system participant acts intentionally with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
21. (21) Knowingly--a system participant acts knowingly with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A system participant acts knowingly with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
22. (22) Matter of Practice--This term is synonymous with Pattern of Practice, as defined in this section.
23. (23) Noncompliance or Noncompliant Act--a violation of the Act or Rules.
24. (24) Notice of Intent (NOI)--a notice issued by the commission to a system participant who it appears has committed a violation that allows the system participant to provide feedback so that the commission can make a final decision regarding the possible violation. The NOI is issued prior to the commission taking formal enforcement action through the issuance of a Notice of Violation or Warning Letter.
25. (25) Notice of Violation (NOV)--a formal notice issued to a system participant by the commission under Texas Labor Code §415.032 when the commission has found that the system participant has committed an administrative violation and the commission seeks to assess an administrative penalty.
26. (26) ) Pattern of Practice--the acts or omissions of a participant in the workers' compensation system which are repeated. This term is synonymous with similar terms such as "business practice," "pattern of conduct, " "matter of practice," "practices or patterns," and "practices and patterns."
27. (27) Performance Review--This term is synonymous with Compliance Audit, as defined in this section.
28. (28) Referral Violations--violations discovered outside of a Compliance Audit of the violator. These violations may or may not be representative of overall performance.

29. (29) Representative Violation--a violation may be considered "representative" if it is indicative of an overall performance problem.

    1. (A) A violation caused by a procedural or programming error on the part of the violator may be considered representative.
    2. (B) Audit findings using censuses or statistical sampling are representative of overall performance in the audited category(s).
30. (30) Rules--the commission's Rules adopted under this Act.
31. (31) Remuneration--any payment or other benefit made directly or indirectly, overtly or covertly, in cash or in kind, including, but not limited to, forgiveness of debt.

32. (32) Significant Violation--a violation which:

    1. (A) arises from an action or inaction where the violator has demonstrated unwillingness or has alleged an inability to take corrective measures to avoid committing the same violation in the future;
    2. (B) resulted or was likely to result in significant physical or emotional harm to an injured employee;
    3. (C) resulted or was likely to result in significant economic harm to a system participant;
    4. (D) was fraudulent in nature;
    5. (E) involved a violation of an agreement or commission decision or order; or
    6. (F) was either willfully committed or which is part of an uncorrected pattern of practice.
33. (33) SOAH--the State Office of Administrative Hearings.
34. (34) System Participant--a person or entity required to comply with the Act and Rules. This will generally be an insurance carrier (carrier), employer, health care provider (provider or HCP), attorney, injured employee (employee) or other claimant.
35. (35) Uncorrected Pattern of Practice--a pattern of practice which continues even after the commission provides written notice to the system participant committing the violation(s)of the noncompliance.
36. (36) Violation--a failure to comply with a duty established under the Act or Rules or commission of an act prohibited by the Act or Rules which can involve failing to timely fulfill a duty or failing to fulfill the duty in the manner required (whether timely or not).
37. (37) Violation Review--a review of an allegation of noncompliance conducted outside the context of a Compliance Audit. Violation Reviews are conducted upon receipt of an allegation of noncompliance (violation referral) that was made or forwarded to the commission.
38. (38) Violator--a system participant found to have committed an administrative violation or another offense.
39. (39) Warning Letter--a formal notice issued to a violator when the commission has found an administrative violation for which the commission does not plan to assess an administrative penalty or other sanction.
40. (40) Willfully--intentionally or knowingly. Also, continuing conduct after being notified by the commission or other regulatory authority. NOTE -"wilful " and " wilfully " as used in the Act are the same as "willful " and "willfully," respectively.

Source Note:The provisions of this §180.1 adopted to be effective July 29, 1991, 16 TexReg 3940; amended to be effective March 14, 2002, 27 TexReg 1817; amended to be effective September 14, 2003, 28 TexReg 7711.