Brief ⁽¹⁾

Sub. for SB 219 would make several amendments to the Workers Compensation Act. Major provisions of the bill are as follows.

Delivery of Services. The bill outlines an employer's duty to provide an injured worker with the services of a health care provider and medical, surgical, and hospital treatment. If the injured worker is not satisfied with the services of the health care provider (HCP), the worker can apply to the Director of Workers Compensation for a different HCP. The Director may authorize a change of HCP from the list of three other HCPs submitted by the employer and selected by the worker. If the worker is not satisfied with any of these HCPs, either the worker or the employer may request the Director to select a treating HCP.

Without approval, a worker may consult an HCP for the purpose of examination, diagnosis, or treatment. The employer will only be liable to such HCP for an amount up to $500.

The bill further allows for an injured employee to rely on treatment by prayer or other spiritual means without suffering a loss of benefits if: (1) the employer or insurance carrier agrees in writing; (2) the employer submits all required physical examinations; (3) the cost of such treatment will be paid by the employee unless the employer or insurance carrier agrees to make such payment; (4) the injured worker will be entitled to benefits reasonably expected had the worker undergone medical or surgical treatment; and (5) the employer or insurance carrier can withdraw from an agreement under numbers 1-3 upon ten days' written notice.

In addition, workers compensation medical care and treatment for Hepatitis will be available to law enforcement officers, firefighters, ambulance attendants, and mobile intensive care technicians, including volunteers.

Health Care Provider. This provision will include in the definition of health care provider any person licensed to practice audiology.

Medical Administrator. A medical administrator will be appointed to oversee the providing health care services to injured workers. Duties of the medical administrator are outlined in the bill.

Maximum Fees. The Director will develop and adopt rules and regulations which establish a reasonable maximum fee schedule for medical, surgical, hospital, dental, nursing, vocational rehabilitation, or other treatment or services provided by HCPs.

Advisory Panel. An advisory panel is created to assist the Director in establishing a maximum fee schedule.

Dispute Resolution and Utilization Review. The bill clarifies the provisions regarding dispute resolution. If it is determined after a formal hearing on the dispute that an HCP improperly utilized or ordered unjustified treatment or services or that fees for such treatment or services were excessive, the Director may provide a report to the licensing board of the HCP. Any decision rendered on these matters may be reviewed by the Workers Compensation Board.

Post-Award Medical Treatment. The bill allows an injured worker to apply for a post-award hearing for medical treatment. As a result of such an evidentiary hearing, the administrative law judge can find that further medical care is necessary to cure or relieve the effects of the accidental injury. All parties must be given the opportunity to present evidence of any disputed matter before a post-award benefit can be ordered. Further, a finding on a disputed matter must be reviewed by the full Workers Compensation Board. Any application for a post-award medical treatment for hearing will receive a priority setting. Other procedural requirements are set out in the bill.

Drug Levels-Exception to Benefits. The presence of certain drug concentration levels which are outlined in the bill would create the presumption of employee impairment and the possible denial of benefits.

Death Benefits. The bill provides for an initial payment of $40,000 to the surviving legal spouse or a wholly dependent child or children or both. The initial payment shall not be subject to the initial 8 percent discount allowed for lump sum payments. The initial payment shall be immediately due and payable and apportioned 50 percent to the surviving legal spouse and 50 percent to the dependent children. Weekly benefits, after the lump sum payment, cannot be less than the minimum benefit for the determined average weekly wage. The penalty for the remarriage of the surviving legal spouse is removed.

The death of the surviving legal spouse or the marriage or death of a dependent child will cause the reapportionment of compensation to those who remain eligible for compensation. The maximum death benefit is raised from the current $200,000 to $250,000.

Temporary Total Disability. The bill deletes language regarding the continuation of compensation for temporary total disability for the duration of the disability. This change keeps the temporary total provision consistent with changes to the Workers Compensation Act made in 1993.

Independent HCP Report. Under current law, the medical report of the health care provider appointed to perform an independent medical evaluation must give a deposition for the medical report to be considered by the administrative law judge in making a final determination. The bill allows the judge to consider the medical report without a deposition.

Preliminary Hearings Report. The bill clarifies that except in the matters of preliminary hearings, no report of a health care provider shall be otherwise admitted into evidence without foundation testimony.

Certified Mail. The bill requires certified mail rather than registered mail be used in those instances when the Director disapproves an agreement.

Cross Appeals. The bill allows for a cross appeal of a decision by the Workers Compensation Board with the Kansas Court of Appeals. In a cross appeal situation, both parties to an action file an appeal in the same legal proceeding.

Notification of Accident-Civil Penalties for Failure to Report. The notification of an accident application that is filed with the Director of Workers Compensation is changed so that proceedings can begin by serving a written claim upon the employer. Repeated failure of an employer to file any required report will be subject to a fine of up to $250. Current law requires knowing failure. The Assistant Attorney General assigned to the Division of Workers Compensation will prosecute the failure to report. A hearing will be conducted according to the Kansas Administrative Procedure Act (KAPA).

Failure to Provide Database Information-Penalty. An administrative penalty will be imposed on self insured employers, pools, insurance carriers, or vocational rehabilitation providers in an amount of up to $500 per violation plus $100 per week for each week that required information is not provided to the Director of Workers Compensation. A hearing will be conducted according to the KAPA on these matters.

State Workers Compensation Self Insurance Fund. The bill authorizes the Secretary of Administration to establish workers compensation rates for state agencies based on the actual accidental injury and occupational disease experience of each agency.

Under current law, the State Workers Compensation Self-Insurance Fund charges each agency the same assessment rate against the agency's payroll to obtain operating funds to administer workers compensation claims made by state employees.

Accident Prevention Programs. This amendment clarifies that accident prevention programs of carriers and pools shall be maintained and provided, upon the request of the covered employer. Inspections necessary to determine the adequacy of the accident prevention services may be done on a random basis and based upon employer complaints, and the result shall be reported to the Insurance Commissioner. The information on the type of accident prevention programs will still be submitted to the Secretary of Human Resources, who shall send the information and results to the Insurance Commissioner who shall widely disseminate information about the program. Further, the education requirements for an insurance carrier field safety representative was modified to delete the business degree requirement and insert, in its place, industrial hygiene degrees along with other specific degrees and/or designations, or five years of experience. Current law requires ten years of experience.

Fraud and Abuse Cases. The Assistant Attorney General assigned to the Division of Workers Compensation is required to prosecute a criminal fraud and abuse case which the county attorney fails to prosecute within 90 days. The statute of limitations for crimes under the fraud and abuse section is five years.

Background

Various provisions contained in the bill are similar to those contained in the original SB 219, SB 139, SB 644, and HB 2907. Many of the features were approved by the Workers Compensation Advisory Council.

1. *Supplemental notes are prepared by the Legislative Research Department and do not express legislative intent. The supplemental note and fiscal note for this bill may be accessed on the Internet at http://www.ink.org/public/legislative/bill_search.html