The nation s most experienced provider of workers compensation information, tools, and services FEBRUARY 28, 2014 ITE Report Contact: Legislative_Activity@ncci.com Regulatory Services RLA-2014-08 State Issues Contacts: Please refer to the list of State Relations Executives at the end of this report. LEGISLATIVE ACTIVITY LEGISLATIVE SESSION UPDATES This report contains descriptions and/or excerpts of relevant bills that have passed the first chamber, passed the second chamber, or have been enacted during the specific periods. In addition, a recap of significant legislative and judicial activity impacting the workers compensation system will be included in the first report published each month. This report is issued on a weekly basis throughout the legislative season, and it provides updates on the content of these bills if and when they progress through the legislative process. This report includes bills from states where NCCI provides ratemaking services (see state list under Contact Information) and the US Congress. BILLS ENACTED There were no relevant bills enacted within the one-week period ending February 19, 2014. BILLS PASSING SECOND CHAMBER The following bill passed the second chamber within the one-week period ending February 19, 2014. Utah HB 10 was: Passed by the first chamber on January 30, 2014 Included in NCCI s February 14, 2014 Legislative Activity Report (RLA-2014-06) Passed by the second chamber on February 13, 2014 HB 10 repeals the Utah Injured Worker Reemployment Act, amends sections 34A-2-413, 34A-3-102, 63A-3-501, and 63I-1-234 to delete cites to the Utah Injured Worker Reemployment Act, and enacts section 34A-2-413.5 of the Utah Code Annotated, as follows: 34A-2-413.5. Injured worker reemployment. (1) As used in this section: (a) (i) Gainful employment means employment that: (A) is reasonably attainable in view of an industrial injury or occupational disease; and (B) offers to an injured worker, as reasonably feasible, an opportunity for earnings. (ii) Factors considered in determining gainful employment include an injured worker s: (A) education; (B) experience; and (C) physical and mental impairment and condition. (b) Initial written report means a report required under described in Subsection (5). (c) Injured worker means an employee who sustains an industrial injury or occupational disease for which benefits are provided under this chapter or Chapter 3, Utah Occupational Disease Act. (d) Injured worker with a disability means an injured worker who: (i) because of the injury or disease that is the basis of the employee being an injured worker: (A) is or will be unable to return to work in the injured worker s usual and customary occupation; or (B) is unable to perform work for which the injured worker has previous training and experience; and (ii) reasonably can be expected to attain gainful employment after an evaluation provided for in accordance with this section. (e) Parties means: (i) an injured worker with a disability; (ii) the employer of the injured worker with a disability; (iii) the employer s workers compensation insurance carrier; and (iv) a rehabilitation or reemployment professional for the employer or the employer s workers compensation insurance carrier. 2014 National Council on Compensation Insurance, Inc. All Rights Reserved. Page 1 of 6
(f) Reemployment plan means a written: (i) description or rationale for the manner and means by which it is proposed an injured worker with a disability may return to gainful employment; and (ii) definition of the voluntary responsibilities of: (A) the injured worker with a disability; (B) the employer; and (C) one or more other parties involved with the implementation of the reemployment plan. (2) (a) This section applies only to an industrial injury or occupational disease that occurs on or after July 1, 1990. (b) This section is intended to promote and monitor the state s and the employer s capacity to assist the injured worker in returning to the workforce by evaluating the effectiveness of the voluntary efforts of employers under this section. (3) This section does not affect the duties of the Utah State Office of Rehabilitation. (4) The commission may provide for the administration of this section by rule in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act. (5) An employer or the employer s workers compensation insurance carrier shall may voluntarily prepare an initial written report assessing an injured worker s need or lack of need for vocational assistance in reemployment if: (a) it appears that the injured worker is or will be an injured worker with a disability; or (b) the period of the injured worker s temporary total disability compensation period exceeds 90 days. (6) (a) Subject to Subsection (6)(b), an employer or the employer s workers compensation insurance carrier shall may serve the initial written report, if one has been prepared, on the injured worker. (b) An If an employer or the employer s workers compensation insurance carrier serves an initial written report on an injured worker, the employer or the employer s workers compensation insurance carrier shall comply with Subsection (6)(a) by no later than 30 days after the earlier of the day on which: (i) it appears that the injured worker is or will be an injured worker with a disability; or (ii) the 90-day period described in Subsection (5)(b) ends. (7) With the initial written report, if one is prepared and used in the determination process, an employer or the employer s workers compensation insurance carrier shall provide an injured worker information regarding reemployment. (8) Subject to the other provisions of this section, if an injured worker is an injured worker with a disability, the employer or the employer s workers compensation insurance carrier shall may, within 10 days after the day on which the employer or workers compensation insurance carrier serves the initial written report on the injured worker, refer the injured worker with a disability to: (a) the Utah State Office of Rehabilitation; or (b) at the employer s or workers compensation insurance carrier s option, a private rehabilitation or reemployment service. (9) An employer or the employer s workers compensation insurance carrier shall make the referral required by Subsection (8) for the purpose of: (a) providing an evaluation; and (b) developing a reemployment plan. (10) The objective of reemployment is to return an injured worker with a disability to gainful employment in the following order of employment priority: (a) same job, same employer; (b) modified job, same employer; (c) same job, new employer; (d) modified job, new employer; (e) new job, new employer; or (f) retraining in a new occupation. (11) Nothing in this section or its application is intended to: (a) modify or in any way affect an existing employee-employer relationship; or (b) provide an employee with a guarantee or right to employment or continued employment with an employer. (12) A rehabilitation counselor to whom a referral is made under Subsection (8) shall have the same or comparable qualifications as those established by the Utah State Office of Rehabilitation for personnel assigned to rehabilitation and evaluation duties. BILLS PASSING FIRST CHAMBER The following bills passed the first chamber within the one-week period ending February 19, 2014. Colorado SB 137 amends sections 8-44-102. Contract for insurance subject to workers compensation act and 10-3-1104. Unfair methods of competition unfair or deceptive acts or practices repeal, and adds new section 10-4-419.5. Workers compensation form certification to the Colorado Revised Statutes as follows: 8-44-102. Contract for insurance subject to workers compensation act. (1) Every contract for the insurance of compensation and benefits as provided in articles 40 to 47 of this title or against liability therefor shall be made is subject to all the provisions of said articles 40 to 47, and all provisions in such the contract for insurance inconsistent with the provisions of said those articles shall be are void. Any contract of insurance issued under said articles 40 to 47 by any insurance carrier, including stock and mutual corporations and Pinnacol Assurance, may include and cover any liability of the 2014 National Council on Compensation Insurance, Inc. All Rights Reserved. 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employer on account of personal injuries sustained by or death resulting therefrom to any employee. as such. No insurance carrier shall write any policy of insurance covering the liability under said articles of any employer doing business within the state of Colorado except on a form that has been previously filed with and approved by the commissioner of insurance, nor shall there be attached to said policy or contract of insurance any endorsement, rider, letter, or other document affecting such contract unless the same has been filed with and the form thereof approved by the commissioner of insurance. The commissioner of insurance shall from time to time approve and prescribe a standard or universal form, as nearly as possible, for every contract or policy of insurance, endorsement, rider, letter, or other document affecting such contract for use in insuring the compensation provided for in said articles. (2) (a) Every carrier providing workers compensation insurance that is authorized to conduct business in Colorado shall submit an annual report to the Commissioner of Insurance listing any policy forms, endorsements, riders, letters, notices, or other documents affecting an insurance policy or contract issued or delivered to any policyholder in Colorado as may be requested by the Commissioner. The listing must be submitted no later than July 1 of each year and must contain a certification by an officer of the carrier that, to the best of the officer s knowledge, each policy form, endorsement, rider, letter, notice, or other document affecting an insurance policy or contract complies with Colorado law. The Commissioner shall determine the necessary elements of the certification. (b) (I) Every carrier providing workers compensation insurance that is authorized to conduct business in Colorado shall also submit to the Commissioner a list of any new policy forms, endorsements, riders, letters, notices, or other documents as may be requested by the Commissioner at least thirty-one days before using the policy forms, endorsements, riders, letters, notices, or other documents. (II) The listing must also contain a certification by an officer of the carrier that, to the best of the officer s knowledge, each policy form, endorsement, rider, letter, notice, or other document proposed to be used complies with Colorado law. The Commissioner shall determine the necessary elements of the certification. (c) The Commissioner may examine and investigate workers compensation carriers authorized to conduct business in Colorado to determine whether workers compensation policy forms, endorsements, riders, letters, notices, or other forms as may be requested by the Commissioner comply with the certification of the carrier and statutory mandates. 10-3-1104. Unfair methods of competition unfair or deceptive acts or practices repeal. (1) The following are defined as unfair methods of competition and unfair or deceptive acts or practices in the business of insurance:... (rr) Certifying pursuant to section 8-44-102, C.R.S., or issuing, soliciting, or using a workers compensation form, endorsement, rider, letter, or notice that does not comply with statutory mandates. The solicitation or certification is subject to the sanctions described in sections 10-3-1107, 10-3-1108, and 10-3-1109.... SB 137 also adds new section 10-4-419.5. Workers compensation form certification to the Colorado Revised Statutes as follows: 10-4-419.5. Workers compensation form certification. An insurance carrier writing workers compensation insurance in this state shall comply with section 8-44-102, C.R.S. Maryland HB 39/SB 16 amends sections 24-304. Certificate of Authority and 24-306. Authorized Insurer of the Maryland Insurance Code as follows: 24-304. Certificate of Authority (a) Before October 1, 2013, the Company shall: (1) File an application for a certificate of authority under this article and a statement of the risk-based capital levels of the Company as of the date of the application prepared in accordance with 4-303 of this article; and (2) Take all steps necessary to be an authorized domestic insurer under State law. (b) On approval of the application for a certificate of authority, the Commissioner shall issue to the Company a certificate of authority that authorizes the Company to issue policies under Title 9 of the Labor and Employment Article. (c) Except as otherwise provided in this subtitle, the Company has the powers, privileges, and immunities granted by and is subject to the provisions applicable to insurers authorized to write workers compensation insurance under this article. (D) The Company may issue policies for: (1) Employer s Liability Insurance; (2) Insurance under a Federal Compensation Law. (d) (E) Except as otherwise provided in this subtitle, the Company shall be: (1) authorized, examined, and regulated by the Commissioner in the same manner and to the same extent as other authorized property and casualty insurers; and (2) subject to each provision of this article that is applicable to other authorized property and casualty insurers. (e) (F) The Company is a member of the Property and Casualty Insurance Guaranty Corporation. 24-306. Authorized Insurer (a) The Company: (1) shall be an authorized insurer; and (2) On and after October 1, 2013, shall be the workers compensation insurer of last resort for employers covered under Title 9 of the Labor and Employment Article. 2014 National Council on Compensation Insurance, Inc. All Rights Reserved. Page 3 of 6
(b) Before October 1, 2013, the Fund shall serve as the workers compensation insurer of last resort for workers compensation insurance and as a competitive workers compensation insurer under the same terms and conditions as the Fund served before October 1, 2012. (c) The Company may not cancel or refuse to renew or issue a policy except for: (1) nonpayment of a premium for current or prior policies issued by the Fund or the Company; (2) failure to provide payroll information to the Fund or the Company; or (3) failure to cooperate in any payroll audit conducted by the Fund or the Company; OR (4) Failure to reimburse the Company under a policy with deductibles as required under 19-404 of this Article. (d) The Company may engage only in the business of workers compensation insurance in accordance with State law. Note: HB 39 is an emergency bill identical to SB 16 (see RLA-2014-05) except that HB 39 would take effect upon its passage, whereas SB 16 would take effect on July 1, 2014. HB 220/SB 480 amends section 10-102(f) of the Maryland Labor and Employment Code, related to employees of the Injured Worker s Insurance Fund (Fund), as follows: 10-102. Injured Workers Insurance Fund... (f) Employees Agreement. (1) Employees of the Fund may be assigned to perform functions of the Company under a contract between the Fund and the Company. (2) The Company and the Fund shall annually execute an agreement that lists the employees of the Fund who have been assigned to perform duties on behalf of the Company. (3) The agreement shall: (i) specify the employees who will be utilized by the Company and the Fund; (ii) provide that, except with respect to assets necessary for the Fund to perform its duties under this subtitle, all assets and liabilities of the Fund are the assets and liabilities of the Company; and (iii) be filed with the Administration. (4) Notwithstanding 15-703 (F) (3) (I) of the State Government Article, an employee of the Fund may register and maintain registration as a registered lobbyist if the employee: (I) Is assigned to perform functions of the company under paragraph (1) of this subsection for which an employee of the Company would be required to register; and (II) Register on behalf of the Company. Missouri SB 526 creates new section 287.980 in the Missouri Annotated Statutes, relating to a workers compensation claims database, as follows: 287.980. 1. The division shall develop and maintain a workers compensation claims database, accessible to potential employers through the division s website, containing all claims filed for compensation under this chapter. Claims records shall be retrievable only by an employer who during a pre-hire period obtains written consent from a potential employee to acquire such records and provides a potential employee s name and social security number. The record shall, upon retrieval, identify the date of any claim made by such potential employee and whether the claim is open or closed. 2. An employer shall not compel or coerce a potential employee to provide written consent for an employer to acquire claims records or require such consent as a condition of employment. 3. The records in the workers compensation claims database shall not be considered reports or records for the purposes of the record retention requirements under section 287.650. 4. The provisions of this section shall be fully implemented by July 1, 2015. The division shall implement the provisions of this section in a manner allowing the division to maintain a record of all claims records received through the division s website, including the identity of the potential employee and of the potential employer. Such record shall be maintained by the division. 5. Any person who fraudulently accesses the database described in subsection 1 of this section, compels or coerces a potential employee to provide written consent to acquire claims records, or requires such consent as a condition of employment shall be guilty of a class A misdemeanor. New Hampshire HB 1498 amends section 281-A:38 Medical Examinations of the New Hampshire Statutes as follows: 281-A:38 Medical Examinations III. When an employee who has returned to work is required to submit to an examination pursuant to this section, the employee shall be entitled to receive from the party requesting the examination all wages lost in submitting to the examination. These wages shall not count against the maximum allowable weekly compensation rate set forth in RSA 281-A:28. The payment under this paragraph is not a payment of compensation for disability pursuant to RSA 281-A:28, RSA 281-A:28-a, RSA 281-A:31, RSA 281-A:31-a, RSA 281-A:40, or RSA 281-A:48. The payment under this paragraph does not toll the statute of limitations for compensation payments under RSA 281-A:48. 2014 National Council on Compensation Insurance, Inc. All Rights Reserved. Page 4 of 6
Oregon HB 4104 amends section 656.247 Payment for medical expenses prior to claim acceptance or denial; review of disputed services; duty of health benefit plan to pay for certain medical services in denied claim of the Oregon Revised Statutes to read: (1) Except for medical services provided to workers subject to ORS 656.245 (4)(b)(B), payment for medical services provided to a subject worker in response to an initial claim for a work-related injury or occupational disease from the date of the employer s notice or knowledge of the claim until the date the claim is accepted or denied shall be payable in accordance with subsection (4) of this section. if the expenses are for: (a) Diagnostic services required to identify appropriate treatment or to prevent disability; (b) Medication required to alleviate pain; or (c) Services required to stabilize the worker s claimed condition and to prevent further disability. (2) Notwithstanding subsection (1) of this section, no payment shall be due from the insurer or self-insured employer if the insurer or self-insured employer denies the claim within 14 days of the date of the employer s notice or knowledge of the claim. (3)(a) Disputes about whether the medical services provided to treat the claimed work-related injury or occupational disease under subsection (1) of this section are excessive, inappropriate or ineffectual or are consistent with the criteria in subsection (1) of this section shall be resolved by the Director of the Department of Consumer and Business Services. The director may order a medical review by a physician or panel of physicians pursuant to ORS 656.327 (3) to aid in the review of such services. If a party is dissatisfied with the order of the director, the dissatisfied party may request review under ORS 656.704 within 60 days of the date of the director s order. The order of the director may be modified only if it is not supported by substantial evidence in the record or if it reflects an error of law. (b) Disputes about the amount of the fee or nonpayment of bills for medical treatment and services pursuant to this section shall be resolved pursuant to ORS 656.248. (c) Except as provided in subsection (2) of this section, when a claim is settled pursuant to ORS 656.289 (4), all medical services payable under subsection (1) of this section that are provided on or before the date of denial shall be paid in accordance with subsection (4) of this section. The insurer or self-insured employer shall notify each affected service provider of the results of the settlement. (4)(a) If the claim in which medical services are provided under subsection (1) of this section is accepted, the insurer or self-insured employer shall make payment for such medical services subject to the limitations and conditions of this chapter. (b) (4)(a) If the claim in which medical services are provided under subsection (1) of this section is denied has not been accepted or denied and a health benefit plan provides benefits to the worker, the health benefit plan shall be the first payer of the expenses expedite preauthorizations and guarantee payment of expenses for medical services provided prior to acceptance or denial of the claim according to the terms, conditions and benefits of the plan. Except as provided by subsection (2) of this section, after payment by the health benefit plan, the workers compensation insurer or self-insured employer shall pay any balance remaining for such services subject to the limitations and conditions of this chapter. (b) If the claim for which medical services are provided under subsection (1) of this section is accepted, after the claim has been accepted the insurer or self-insured employer shall pay for the medical services provided for accepted conditions, including reimbursements for medical expenses, copayments and deductibles paid by the injured worker or the health benefit plan. Payments made under this subsection are subject to the fee schedules, limitations and conditions of this chapter. (c) If the claim for which medical services are provided under subsection (1) of this section is denied and a health benefit plan provides benefits to the worker, after the claim is denied the health benefit plan shall pay for medical services provided according to the terms, conditions and benefits of the plan. (c) (d) As used in this subsection, health benefit plan has the meaning given that term in ORS 743.730 and also means self-insured benefit plans and health benefit plans offered by the Oregon Educators Benefit Board and the Public Employees Benefit Board. (5) An insurer or self-insured employer may recover expenses for denied medical services paid under subsection (1) of this section as an overpayment as provided by ORS 656.268 (14). In addition, HB 4104 adds the following language to the Oregon Insurance Code: (1) A health benefit plan may not exclude, and shall expedite preauthorizations required for, work-related injuries or occupational diseases if: (a) The injured worker is covered by workers compensation insurance and the health benefit plan; and (b) The injured worker has submitted a workers compensation claim for the work-related injury or occupational disease that has not been accepted or denied by the workers compensation carrier. (2) A health benefit plan subject to this section shall guarantee payment for preauthorized medical services to the provider of those medical services according to the terms, conditions and benefits of the plan if the claim is found not to be a compensable workers compensation claim. (3) As used in this section, health benefit plan has the meaning given that term in ORS 743.730 and also means self-insured benefit plans and health benefit plans provided by the Oregon Educators Benefit Board and the Public Employees Benefit Board. (4) The provisions of ORS 743A.001 do not apply to this section. SB 1558 creates new provisions and amends sections 656.407, 656.430, 656.434, 656.443, 656.506, and 656.614 of the Oregon Revised Statutes, relating to self-insurance coverage for workers compensation claims, to: Authorize the Director of the Department of Consumer and Business Services (Director) to pay compensation due to workers of members of certain decertified self-insured employer groups Authorize the Director to set standards by rule for: o proof of financial viability of a self-insured employer and o insurance coverage retention and the combined net worth of members of a self-insured employer group 2014 National Council on Compensation Insurance, Inc. All Rights Reserved. Page 5 of 6
Prohibit certain group members, and board members of groups, from serving as group administrator Authorize the Director to revoke the certification of a self-insured employer in default and for violation of rules Authorize the Director to take certain actions when a self-insured employer group is in default, is decertified, or cancels its certification Modify requirements for ending cash balance in the Workers Benefit Fund Require the group administrator to provide group members written notice of consequences of possible outcomes of a required vote Require each self-insured employer group to conduct a vote on continuation of the group and report the results to the Director by April 1, 2014 Instruct the Workers Compensation Management-Labor Advisory Committee to conduct a study about the modification of the ending balance requirement and report results to the Legislative Assembly Contact Information If you have any questions about the legislation or proposals mentioned, please contact the appropriate NCCI state relations executive (listed below) or a representative of your local insurance trade association. State State Relations Executive Phone Number CT, ME, NH, RI,VT Laura Backus Hall 802-454-1800 FL Lori Lovgren 561-893-3337 AL, GA, KY, LA, MS Cathy Booth 205-655-2699 AZ, NM, NV, UT Maggie Karpuk 818-707-8374 DC, MD, VA, WV David Benedict 804-380-3005 AK, HI Carolyn Pearl 808-524-6239 IN, NC, SC, TN Amy Quinn 803-356-0851 AR, IL, NE, TX Terri Robinson 501-333-2835 CO, ID, MT, OR Mike Taylor 503-892-1858 IA, KS, MO, OK, SD Roy Wood 314-843-4001 Federal Issues Tim Tucker 202-403-8526 This report is informational and is not intended to provide an interpretation of state and federal legislation. 2014 National Council on Compensation Insurance, Inc. All Rights Reserved. Page 6 of 6