                                  ATTORNEYGENERAL OF TEXAS
                                               GREG         ABBOTT




                                                 February 13,2006



Eduardo J. Sanchez, M.D., M.P.H.                           Opinion No. GA-0399
Commissioner
Texas Department of State Health Services                 Re: Whether section 24 1.154(b) of the Health and
1100 West 49th Street                                     Safety Code or section 408.025(d) of the Labor
Austin, Texas 78756                                       Code governs the fees a hospital may charge a
                                                          workers’ compensation carrier to provide certain
                                                          records in a workers’ compensation proceeding
                                                          (RQ-0382-GA)

Dear Commissioner        Sanchez:

         You ask, in essence, whether section 241.154(b) of the Health and Safety Code or section
408.025(d) of the Labor Code governs the fees a hospital may charge a workers’ compensation
carrier to provide certain records in a workers’ compensation proceeding.’

I.       Leml and Factual Background

        Generally, hospitals licensed under chapter 24 1 of the Health and Safety Code are required
to provide health information upon proper authorization according to the fee schedule set out in
section 241.154(b) of that code. See TEX. HEALTH & SAFETY CODE ANN. 3 241.154(a) (Vernon
2001) (circumstances under which health care information must be released), (b) (“Except as
provided by Subsection (d), the hospital or its agent may charge a reasonable fee for providing the
health care information and is not required to permit the examination, copying, or release of the
information requested until the fee is paid unless there is a medical emergency.“), (b)(l)-(2) (fee
schedule).2 However, section 241.154(d)(4) provides that “[a] hospital may not charge a fee for



          ‘See Letter from Commissioner Eduardo J. Sanchez, M.D., M.P.H, Texas Department of State Health Services,
to Honorable Greg Abbott, Attorney General of Texas at 2 (Aug. 17, 2005) (on file with the Opinion Committee, also
availuble at http://www.oag.state.tx.us) [hereinafter Request Letter].

         We limit our analysis to the fees charged for releasing records to a workers’ compensation carrier. We do not
address fees for records requested by a patient or a patient’s representative, which may be governed by federal law. See
45 C.F.R. $ 164.524 (2005) (access of individuals to protected health information).

          *Under chapter 24 1, the term “health care information” means “information recorded in any form or medium
that identifies a patient and relates to the history, diagnosis, treatment, or prognosis of a patient.” TEX. HEALTH &
                                                                                                          (continued...)
Eduardo J. Sanchez, M.D., M.P.H. - Page 2                     (GA-0399)




. . . health care information relating to treatment or hospitalization for which workers’ compensation
benefits are being sought, except to the extent permitted under Chapter 408, Labor Code.” Id.
6 241.154(d)(4).

         The Division of Workers’ Compensation (the “Division”) of the Texas Department of
Insurance administers and operates the workers’ compensation system of this state; the Division is
administered by a commissioner (the “Commissioner”).3 Subchapter B of chapter 408 of the Labor
Code establishes an injured employee’s right to medical benefits: “An employee who sustains a
compensable injury is entitled to all health care reasonably required by the nature of the injury as and
when needed.” TEX. LAB. CODE ANN. 8 408.02 l(a) (Vernon 1996). The Division “shall require an
employee to receive medical treatment from a doctor chosen from a list of doctors approved by the
commissioner.” Id. 6 408.022(a) (Vernon Supp. 2005) (“treating doctor”). Treating doctors agree
to certain terms and medical fees established by the Commissioner. See id. $8 408.023-.030 (Vernon
Supp. 2005), 4 13 .Ol l -.020 (Vernon 1996 & Supp. 2005).

        Section 408.025, entitled “Reports and Records Required From Health Care Providers,”
authorizes the Commissioner and the Division to require records and reports and regulate fees for
providing records:

                     (a) The commissioner by rule shall adopt requirements for reports
                   and records that are required to be filed with the division or provided
                   to the injured employee, the employee’s attorney, or the insurance
                   carrier by a health care provider.

                     (b) The commissioner by rule shall adopt requirements for reports
                   and records that are to be made available by a health care provider to
                   another health care provider to prevent unnecessary duplication of
                   tests and examinations.

                     (c) The treating doctor is responsible         for maintaining     efficient
                   utilization of health care.

                     (d) On the request ofan injured employee, the employee’s attorney,
                   or the insurance carrier, a health care provider shallfurnish records
                   relating to treatment or hospitalizationfor which compensation is
                   being sought. The division may regulate the charge for furnishing a
                   report or record, but the charge may not be less than the fair and
                   reasonable charge for furnishing the report or record. A health care
                   provider may disclose to the insurance carrier of an affected employer



         *(...continued)
SAFETY CODE ANN. $24 1.15 l(2) (Vernon Supp. 2005).

          31n 2005, the legislature transferred the powers and duties of the Texas Workers’ Compensation Commission
to the Division of Workers’ Compensation of the Texas Department of Insurance. See Act of May 29,2005,79th     Leg.,
R.S., ch. 265, $5 1.003, 1.004, 8.001, 2005 Tex. Gen. Laws 469, 470-73, 607-08.
Eduardo J. Sanchez, M.D., M.P.H. - Page 3                         (GA-0399)




                  records relating to the diagnosis or treatment of the injured employee
                  without the authorization of the injured employee to determine the
                  amount of payment or the entitlement to payment.

Id. 6 408.025 (Vernon Supp. 2005) (emphasis added). The former Workers’ Compensation
Commission adopted a rule under section 40&025(d) establishing a fee schedule. See 28 TEX.
ADMIN. CODE 5 133.106(f) (2005) (Tex. Dep’t of Ins., Div. of Workers’ Comp.). This rule has been
continued in effect as a rule of the Commissioner.4

         As factual background, you state that hospitals “frequently receive requests from workers’
compensation carriers for copies of medical records pertaining to individuals who have been
involved in work-related injuries and who are seeking workers’ compensation benefits. Carriers
often request any and all medical records pertaining to the injured worker regardless ofwhether such
records were created in connection with the work-related injury.” Request Letter, supra note 1,
at 1. The fee schedule promulgated under section 408.025 of the Labor Code permits lower fees than
the general fee schedule set forth in section 241.154 of the Health and Safety Code. See id. You
explain that in a particular instance a hearing officer in an administrative hearing on a workers’
compensation claim compelled a hospital to produce to the workers’ compensation carrier’s counsel
all medical records related to the employee and ordered the hospital to charge fees under the section
408.025 fee schedule. See id “Since the hospital was not a party to the workers’ compensation
proceeding, it was not permitted to appear at the contested case hearing to challenge the subpoena
or to make a record so that an Appeals Panel could consider the issue.” Id. You state that hospitals
interpret section 408.025 to refer “only to the records created in connection with the work-related
injury”whereas workers’ compensation carriers interpret it broadly to refer to “any and all medical
records relating to an injured worker who is seeking workers’ compensation benefits.” Id. at 2. A
letter submitted with your request indicates that hospitals are particularly concerned about the fees
they may charge for records “[clreated prior to the work related injury” and records relating to
treatment or hospitalization “for which workers’ compensation benefits are not being sought.“’

         You pose two specific questions:

              1. Whether a hospital licensed under [chapter] 24 1 of the Texas Health
                 and Safety Code may charge retrieval and copying fees for [health]
                 care information in accordance with [section] 241.154(b) of the
                 Health and Safety Code when the requested records do not relate to



         4See id. 9 8.005(c), at 608-09.

          5See Letter from Edwin L. Meador, Burford & Rybum, L.L.P., to Marc Allen Connelly, Assistant General
Counsel, Texas Department of State Health Services at 3 (Mar. 15, 2005) (on file with the Opinion Committee)
(attachment to Request Letter).

          It is the policy of this office to refrain from issuing an attorney general opinion on a question that we know to
be the subject ofpending litigation. See Tex. Att’y Gen. Op. Nos. MW-205 (1980) at 1, V-291 (1947) at 5-6; Tex. Att’y
Gen. LA- 142 (1977) at 1. Your letter does not indicate that the issues you raise are currently under adjudication.     We
answer your questions in general terms and not with respect to any particular proceeding.
Eduardo J. Sanchez, M.D., M.P.H. - Page 4               (GA-0399)




                treatment or hospitalization   for which workers’ compensation
                benefits are being sought, but are records relating to prior or
                subsequent treatment of conditions or injuries for which workers’
                compensation benefits are not being sought?

            2. Whether the phrase “records relating to treatment or hospitalization
               for which workers’ compensation benefits are being sought” that is
               set forth in . . . [section] 241.154(d)(4) and the corresponding phrase
               . . . “records relating to treatment or hospitalization        for which
               compensation is being sought” that is promulgated by [Labor Code
               section] 408.025(d) were intended to refer to: (1) records created in
               connection with the treatment or hospitalization for which workers’
               compensation benefits are being sought; or (2) records relating to any
               treatment or hospitalization of an injured worker who is seeking
               workers’ compensation benefits?

Request Letter, supra note 1, at 2.

II.     Analvsis

         By providing that “[a] hospital may not charge a fee for . . . health care information relating
to treatment or hospitalization for which workers’ compensation benefits are being sought, except
to the extent permitted under Chapter 408, Labor Code,“6 section 241.154(d)(4) of the Health and
Safety Code establishes that to the extent chapter 408 of the Labor Code governs fees for releasing
records, the chapter 408 fees apply. Thus, the answers to your questions depend upon the extent to
which section 408.025(d) of the Labor Code governs fees for furnishing records.

        In construing   section 408.025(d), we must give effect to the legislature’s intent. See TEX.
GOV’T CODE ANN.       $5 3 11.021, .023 (Vernon 2005); Albertson s, Inc. v. Sinclair, 984 S.W.2d 958,
960 (Tex. 1999); Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436,438 (Tex. 1997). To do so,
we must construe the statute according to its plain language. See In re Canales, 52 S.W.3d 698,702
(Tex. 2001); RepublicBankDallas, NA. v. Interkal, Inc., 691 S.W.2d 605,607-08 (Tex. 1985). We
must also construe section408.025(d) in context, considering section 408.025 as a whole and in light
of other statutes that govern workers’ compensation.        See TEX. GOV’T CODE ANN. 5 3 11 .Ol l(a)
(Vernon 2005) (words and phrases to be read in context); Helena Chem. Co. v. Wilkins,47 S.W.3d
486, 493 (Tex. 2001) (“[W]e must always consider the statute as a whole rather than its isolated
provisions. . . . We should not give one provision a meaning out of harmony or inconsistent with
other provisions, although it might be susceptible to such a construction standing alone.“). In
addition, construction of a statute in the rules of the administrative agency charged with the statute’s
enforcement “is entitled to serious consideration, so long as the construction is reasonable and does
not contradict the plain language of the statute.” TarrantAppraisalDist. v. Moore, 845 S.W.2d 820,
823 (Tex. 1993).



        6T~~. HEALTH & SAFETY CODE ANN. $24 1.154(d)(4) (Vernon 2001).
Eduardo J. Sanchez, M.D., M.P.H. - Page 5                (GA-0399)




       You wish to know, in essence, whether section 408.025(d) governs fees a hospital may
charge a workers’ compensation     carrier for every medical record requested in a workers’
compensation  proceeding or for only those records created in connection with treating the
employee’s work-related injury. See Request Letter, supra note 1, at 2.

          Section 408.025(d)‘s operative language with respect to fees, its second sentence, authorizes
the Division to “regulate the charge for furnishing a report or record.” TEX. LAB. CODE ANN.
5 408.025(d) (Vernon Supp. 2005) (emphasis added). In the context of the statute as a whole, the
phrase “report or record” refers to the reports and records that section 408.025(a)-(b) authorizes the
Division to require. Specifically, section 408.025(a) mandates the Commissioner by rule to adopt
“requirements for reports and records that are required to be filed with the division or provided to
the injured employee, the employee’s attorney, or the insurance carrier by a health care provider.”
Id. 5 408.025(a) (emphasis added). And section 408.025(b) charges the Commissioner with adopting
rules establishing “requirements for reports and records that are to be made available by a health
care provider to another health care provider to prevent unnecessary duplication of tests and
examinations.” Id. 6 408.025(b) (emphasis added). In the context of section 408.025 as a whole,
it is clear that the Division’s authority to regulate fees applies to those reports or records created by
a health care provider in connection with diagnosing and treating the work-related injury. If the
legislature had intended section 408.025(d) to authorize the Division to establish the fees any health
care provider may charge for releasing any and all medical records relevant to an employee’s
entitlement to compensation for a work-related injury, it would have authorized the Division to
regulate fees not just for furnishing “a report or record” but also for providing any medical record
requested in a worker’s compensation proceeding.

         The fee schedule adopted under section 408.025(d) also supports this limited construction
of the Division’s authority to regulate fees. The fee schedule is expressly limited to reports and
records that health care providers are required to prepare and submit under the Division’s rules. See
28 TEX. ADMIN. CODE 5 133.106(f) (2005). Specifically, subchapter A of chapter 133 of the
Division’s rules, entitled “General Rules For Required Reports,” defines the term “required medical
report” to mean “[a] medical report, and/or narrative report that a health care provider submits in
accordance with this title,” id. 5 133.1(14), and subchapter B, entitled “Required Reports” requires
treating doctors and other providers to prepare reports documenting the diagnosis and treatment of
the employee’s injury, see id. 6 5 133.100 (required medical reports), 133.104 (consultant medical
reports prepared by consulting doctor referred by primary treating doctor), 133.105 (physical or
occupational therapy reports).

        Section 133.106(a)-(e), which precedes the fee schedule, also addresses required medical
reports and other records directly related to diagnosing and treating the employee’s injury:

                  (a) The doctor shall charge the carrier no more than the fair and
                reasonable fee as specified in subsection (f) of this section for the
                required medical reports listed in the preceding sections.

                  (b) If an insurance carrier requests an additional reportfrom the
                treating doctor, the doctor may also charge the fair and reasonable fee
Eduardo J. Sanchez, M.D., M.P.H. - Page 6                (GA-0399)




                for the requested reports. It is the obligation of the carrier to furnish
                its auditors, or fourth party reviewers, with any necessary or needed
                copies of the required medical reports in order to ascertain the level
                of treatment given and the treatments or procedures performed.

                  (c) The injured       employee,    and the injured      employee’s
                representative, shall receive a copy of required medical reports from
                the health care provider without additional charge. If the injured
                employee’s representative requests further documentation, such as
                medical records or clinic notes or a medical narrative other than the
                required reports, the treating doctor will be reimbursed for this
                additional information by the representative.

                  (d) The health care provider will not charge the commission         for
                copies of any requested or required documents.

                  (e) Narrative reports are defined as original documents explaining
                the assessment, diagnosis, and plan of treatment for an injured
                employee written or orally transcribed. Narrative reports shall
                provide information beyond that required by prescribed report forms,
                The narrative reports should be no more than double-spaced on letter
                size paper. Clinical or progress notes do not constitute a narrative
                report.

Id. 8 133.106(a)-(e) (emphasis added).

         Significantly, section 133.106(f), which sets out the authorized fees, begins with this
prefatory language: “The following are the fees the commission considers fair and reasonable for
each submitted required report or record under any section of this title.” Id. 13133,106(f). The rule
then specifies fees for required reports, narrative required reports, copies of reports or clinical notes,
hospital records, microfilm, and copies of X-ray films. See id. 0 133,106(f)(1)-(6). According to
section 133.106(f)‘s plain language, the fee schedule applies only to reports and other records
required and submitted under Division rules. See id. 5 133.106(f) (setting out fees “for each
submitted required report or record under any section of this title”) (emphasis added).

        In addition, we note that when the Texas Workers’ Compensation Commission adopted
section 133.106 in 1991, it explained that the rule “sets out the fees that may be charged for the
required medical reports listed in the preceding sections.” 16 Tex. Reg. 178 (1991) (codified at 28
TEX. ADMIN. CODE 6 133.106).


         For these reasons, we conclude that section 408.025(d) of the Labor Code governs fees for
furnishing reports and records a health care provider is required to prepare and submit under chapter
408 or the Division’s rules.
Eduardo J. Sanchez, M.D., M.P.H. - Page 7              (GA-0399)




         You suggest that the answer to your question hinges on the meaning of section 408.025(d)‘s
first sentence, which provides: “On the request of an injured employee, the employee’s attorney, or
the insurance carrier, a health care provider shall furnish records relating to treatment or
hospitalization for which compensation is being sought.” TEX. LAB. CODEANN. 6 408.025(d)
(Vernon Supp. 2005) (emphasis added). While we believe the second sentence governs the
fundamental issue you raise about fees and that the first sentence addresses a different issue, the duty
to release records, we construe the first sentence because you specifically ask about its meaning.7
Its plain language requires a health care provider to furnish records relating to treatment or
hospitalization “for which compensation is being sought.” Id. Under chapter 408, “[a]n employee
who sustains a compensable injury is entitled to all health care reasonably required by the nature of
the injury as and when needed.” Id. 5 408.021(a) (Vernon 1996). Because an employee is entitled
to seek compensation only for treatment or hospitalization for care for the work-related injury, the
phrase “records relating to treatment or hospitalization for which compensation is being sought”
refers to records created in connection with caring for the work-related injury. Section 408.025(d)‘s
final sentence authorizing a health care provider to release records to an insurance carrier without
the employee’s authorization is limited to such records as well. See id. 0 408.025(d) (Vernon Supp.
2005) (“A health care provider may disclose to the insurance carrier of an affected employer records
relating to the diagnosis or treatment of the injured employee without the authorization of the
injured employee to determine the amount ofpayment or the entitlement to payment.“) (emphasis
added).

          You also ask about the meaning of the phrase “health care information relating to treatment
or hospitalization    for which workers’ compensation        benefits are being sought” in section
241.154(d)(4) of the Health and Safety Code. See Request Letter, supra note 1, at 2. This phrase
is almost identical to the phrase “records relating to treatment or hospitalization for which
compensation is being sought” in section 408.025(d). Given the similar language and section
241.154(d)(4)‘s direct reference to chapter 408 of the Labor Code, the legislature clearly intended
this phrase to have the same meaning as the parallel phrase in section 408.025(d). See TEX.HEALTH
& SAFETY CODE ANN. 6 241 .154(d)(4) (Vernon 2001) (,‘except to the extent permitted under
Chapter 408, Labor Code”). Therefore, we construe section 24 1.154(d)(4) to refer to records created
in connection with treatment or hospitalization       for the work-related injury. See supra p. 5
(construing Labor Code section 408.025(d)); seealso TEX.GOV’TCODEANN.0 311.Ol 1(b) (Vernon
2005) (“Words and phrases that have acquired a technical or particular meaning, whether by
legislative definition or otherwise, shall be construed accordingly.“).

        In sum, section 408.025(d) governs fees for furnishing reports and records a health care
provider is required to prepare and submit under chapter 408 or the Division’s rules. It does not
govern fees for every medical record requested from any health care provider in a workers’
compensation proceeding. A hospital licensed under chapter 241 of the Texas Health and Safety
Code must charge a workers’ compensation carrier fees authorized under section 408.025(d) of the
Labor Code for furnishing reports and records a health care provider is required to prepare and
submit under chapter 408 of the Labor Code or the Division’s rules. A hospital that is requested by




       ‘See Request Letter, supra note 1, at 2.
Eduardo J. Sanchez, M.D., M.P.H.     - Page 8         (GA-0399)




a workers’ compensation carrier to provide other medical records in a workers’ compensation
proceeding may charge fees under section 24 1.154(b) of the Health and Safety Code.

         In answer to your specific questions, a hospital licensed under chapter 241 may charge
retrieval and copying fees under section 24 1.154(b) for records relating to “treatment of conditions
or injuries for which workers’ compensation benefits are not being sought.” Request Letter, supra
note 1, at 2. The phrase “health care information relating to treatment or hospitalization for which
workers’ compensation benefits are being sought” in section 241.154(d)(4) and the phrase “records
relating to treatment or hospitalization for which compensation is being sought” in Labor Code
section 408.025(d) refer only to records created in connection with the treatment or hospitalization
for the work-related injury for which workers’ compensation benefits are being sought. These
phrases do not embrace records relating to all treatment or hospitalization of an injured employee
who is seeking workers’ compensation benefits.
Eduardo J. Sanchez, M.D., M.P.H.    - Page 9         (GA-0399)




                                       SUMMARY

                         Section 408.025(d) of the Texas Labor Code governs fees for
               the release of reports and records a health care provider is required
               to prepare and submit under chapter 408 or Texas Department of
               Insurance, Division of Workers’ Compensation rules. A hospital
               licensed under chapter 24 1 of the Texas Health and Safety Code that
               is requested by a workers’ compensation carrier to provide such
               reports and records must charge fees authorized by the fee schedule
               promulgated under section 408.025(d) of the Labor Code. A hospital
               that is requested by a workers’ compensation carrier to provide other
               medical records in a workers’ compensation proceeding may charge
               fees under section 24 1.154(b) of the Health and Safety Code.

                                             Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee
