Rule-Making Notices (Hearing Notices)

Section DWD 80.72 (L) is amended to include advanced practice nurse prescriber in the definition of “provider" or “health service provider." In a recent amendment to s. 102.42 (2), Stats., advanced practice nurse prescribers were added as a choice of practitioner that injured employees were permitted to select for treatment for work-related injuries.

Necessity of treatment disputes. The proposed amendment to s. DWD 80.73 (2) (d) is a technical amendment to include physician assistant and advanced practice nurse prescriber to the definition of “ provider." In a recent amendment to s. 102.42 (2), Stats., physician assistant and advanced practice nurse prescriber were added as choices of practitioner that injured employees were permitted to select for treatment for work-related injuries.

Treatment guidelines for necessity of treatment disputes. The creation of Chapter DWD 81 is the result of a Study Committee formed by the Worker's Compensation Advisory Council to study the cost of health care services provided for the treatment of injured employees. The Study Committee recommended to the Worker's Compensation Advisory Council that Wisconsin adopt worker's compensation treatment guidelines to be used by impartial health services review organizations and experts from a panel of experts selected by the department to render opinions to resolve necessity of treatment disputes arising under s. 102.16 (2m), Stats., and s. DWD 80.73. Currently there are no provisions in Ch. 102, Stats., or Chapter DWD 80 that establish guidelines for review organizations and experts to use in rendering opinions to resolve necessity of treatment disputes.

The Study Committee recommended that the Wisconsin treatment guidelines follow the model of the Minnesota Worker's Compensation Treatment Parameters to the extent the Minnesota parameters are consistent with existing Wisconsin worker's compensation law. The Worker's Compensation Advisory Council agreed. This recommendation was adopted into law in 2005 Wisconsin Act 172. Section 102.16 (2m) (g), Stats., as amended by 2005 Wisconsin Act 172, directs the department to promulgate rules establishing standards for determining the necessity of treatment provided to injured employees and provides that the rules establishing the standards shall, to the greatest extent possible, be consistent with Minnesota rules 5221.6010 to 5221.8900, as amended to January 1, 2006.

The proposed Chapter DWD 81 contains the Minnesota treatment parameters that are consistent, to the greatest extent possible, with current Wisconsin law. The Minnesota rules contain certain provisions that conflict with Wisconsin law and these provisions are not included in Chapter DWD 81. The provisions in the Minnesota rules that are not included in Chapter DWD 81 cover the following:

Requirements for prior notice by health care providers to insurers before administering treatment that is a departure from the guidelines. Under Wisconsin law there is no requirement for prior notification to an employer or insurer before providing any form of treatment to an injured employee.

Requirements for health care providers to follow in referring injured employee to another health care provider. Under Wisconsin law there is no statutory requirement for a health care provider to follow in referring an injured employee to another health care provider for treatment.

Requirements for treating health care providers to obtain second opinions before certain modalities of treatment can be provided to injured employees. There is no statutory requirement under Wisconsin law that requires a second opinion to approve any treatment.

Recognition of certified managed care plans. Under Wisconsin law injured employees cannot be required to obtain treatment from a certified managed care plan and have the right to select their own treating practitioner licensed in and practicing in Wisconsin.

Requirement for the Worker's Compensation Division to maintain outcome studies on treatment modalities provided to treat injured employees for work-related injuries. In Wisconsin, there is no statutory requirement that the Worker's Compensation Division conduct or maintain outcome studies for treatment provided to injured employees.

Disciplinary action and penalties against health care providers for providing excessive treatment to injured employees. There is no statutory authority in Wisconsin for authorizing the Worker's Compensation Division to impose disciplinary action or penalties against health care providers.

Section 102.16 (2m) (g), Stats., as amended by 2005 Wisconsin Act 172, also created a Health Care Providers Advisory Committee for the purpose of advising the Worker's Compensation Division and the Worker's Compensation Advisory Council before amending the rules establishing the treatment guidelines. The Health Care Provider Advisory Committee reviewed the proposed rules and their suggested modifications have been incorporated. The Minnesota rules were promulgated on the basis of standard current medical practice as it existed in the early 1990s. The modifications suggested by the Health Care Provider Advisory Committee replaced outdated terminology and updated certain substantive provisions to reflect current standard practice.

The proposed Chapter DWD 81 is organized in the same general format as the Minnesota rules. Sections DWD 81.01 to 81.13 cover the same subjects and topics included in the Minnesota rules that are consistent with Wisconsin law but do not include matters that are contrary or inconsistent with Wisconsin law. Section DWD 81.14 applies to the Health Care Provider Advisory Committee.

The following is a summary of the provisions in Chapter DWD 81:

DWD 81.01 states the purpose of the rules is to establish guidelines for necessary treatment of patients with compensable worker's compensation injuries to prevent unnecessary treatment under s. 102.16 (2m), Stats.

DWD 81.02 provides that the ICD-9-CM diagnostic codes referenced in the rules are contained in the fourth edition of the International Classification of Diseases, Clinical Modification, 9th Revision, 1994, and corresponding annual updates.

DWD 81.03 contains definitions of medical terms that appear throughout the rules.

DWD 81.04 covers general treatment guidelines and the responsibility of health care providers to evaluate whether treatment modalities result in progressive improvement of the employee. This section also enumerates the 5 exceptions that justify departure from the guidelines. The exceptions that justify departure from he guidelines include the following:

There is a documented medical complication.

Previous treatment did not meet the accepted standard of practice and meet the guidelines in this chapter for the health care provider who ordered the treatment.

The treatment is necessary to assist the employee in the initial return to work where the employee's work activities place stress on the body part affected by the work injury.

The treatment continues to meet two of the following three criteria documented in the medical record (1) The employee's subjective complaints of pain are progressively improving; (2) The employee's objective clinical symptoms are progressively improving; (3) The employee's functional status, especially vocational activity, is objectively improving.

There is an incapacitating exacerbation of the employee's condition.

DWD 81.05 establishes the treatment guidelines for general medical imaging procedures and specific imaging procedures for low back pain. The Health Care Provider Advisory Committee recommended modifying the Minnesota rules to reduce the time to initiate CT and MRI scanning from eight weeks to four weeks because these procedures may be more useful if done at an earlier point in time after the injury. The Health Care Provider Advisory Committee also recommended deleting the term gadolinium, as used in the Minnesota rules covering MRI enhanced scanning, because other contrast agents are being developed and coming into use.

DWD 81.06 creates treatment guidelines for low back pain. This section includes diagnostic procedures, general treatment guidelines, passive and active treatment modalities, therapeutic injections, surgery, chronic management, durable medical equipment, treatment evaluation by health care providers, and medication management. Specific treatment guidelines are also included in this section for regional low back pain and specific low back conditions such as radicular pain and cauda equina syndrome. The Health Care Provider Advisory Committee recommended modifying the Minnesota rules to increase the maximum active treatment frequency from three to five times during the first week because patients should have the same frequency for treatment by active treatment modalities as passive treatment modalities. The Health Care Provider Advisory Committee also modified the Minnesota rules by changing the subsection title of “Scheduled and Nonscheduled Medication" to “Medication Management" because this provides a better descriptive umbrella to cover the subsection. The Health Care Provider Advisory Committee also recommended modifying the Minnesota rules by changing the terms “dorsal column stimulator" to “spinal cord stimulator" and “morphine pump" to “intrathecal drug delivery system" to use current terminology.

DWD 81.07 creates treatment guidelines for neck pain. This section includes diagnostic procedures, general treatment guidelines, passive and active treatment modalities, therapeutic injections, surgery, chronic management, durable medical equipment, treatment evaluation by health care providers, and medication management. Specific treatment guidelines are also included in this section for regional neck pain and specific neck conditions involving radicular pain with static and progressive neurological deficits, and myelopathy. The Health Care Provider Advisory Committee recommended modifying the Minnesota rules by using the terms “Medication Management," “spinal cord stimulator" and “intrathecal drug delivery system" as in s. DWD 81.06.

Section DWD 81.08 creates treatment guidelines for thoracic back pain. This section includes diagnostic procedures, general treatment guidelines, passive and active treatment modalities, therapeutic injections, surgery, chronic management, durable medical equipment, treatment evaluation by health care providers, and medication management. Specific treatment guidelines are also included in this section for regional thoracic back pain and specific thoracic back conditions including radicular pain, and myelopathy. The Health Care Provider Advisory Committee recommended modifying the Minnesota rules to use the terms “Medication Management," “spinal cord stimulator," and “intrathecal drug delivery system" as in s. DWD 81.06.

Section DWD 81.09 creates treatment guidelines for upper extremity disorders. This section includes diagnostic procedures, general treatment guidelines, passive and active treatment modalities, therapeutic injections, surgery, chronic management, durable medical equipment, treatment evaluation by health care providers, and medication management. Specific treatment guidelines are also included for epicondylitis; tendonitis of forearm, wrist, and hand; nerve entrapment syndromes, muscle pain syndromes; shoulder impingement syndromes; and traumatic sprains and strains of the upper extremity. The Health Care Provider Advisory Committee recommended modifying the Minnesota rules to use the terms “Medication Management," “spinal cord stimulator," and “intrathecal drug delivery system" as in s. DWD 81.06.

Section DWD 81.10 creates treatment guidelines for complex regional pain syndrome of the upper and lower extremities. This section includes a scope defining this clinical category, initial non surgical involvement, surgery and chronic management. The Minnesota rules referred to this clinical category as reflex sympathetic dystrophy. The Health Care Provider Advisory Committee recommended that the name for this clinical category be changed from reflex sympathetic dystrophy to complex regional pain syndrome because the former title is outdated and the clinical category is currently more commonly referred to as complex regional pain syndrome. The Health Care Provider Advisory Committee also recommended modifying the diagnostic criteria in the Minnesota rules to conform with the diagnostic guidelines issued by the International Association of the Study of Pain because the use of these criteria are more accurate in diagnosing complex regional pain syndrome and the criteria specified in the Minnesota rules are now outdated.

Section DWD 81.11 establishes treatment guidelines for inpatient hospitalization. This section includes general principles for inpatient hospitalization and specific requirements for hospital admission of patients with low back pain. The Health Care Provider Advisory Committee recommended modifying the Minnesota rules in this section to include that some patients who are in hospitals recovering from surgical, diagnostic, or other medical procedures, or are in observation status, are not in the clinical criteria for inpatient status and are therefore not considered patients or billed as patients.

Section DWD 81.12 creates treatment guidelines for surgical procedures. This section includes spinal surgery, upper extremity surgery, and lower extremity surgery.

Section DWD 81.13 creates treatment guidelines for chronic management. This section applies to all types of physical injuries with the purpose of making patients independent of health care providers for ongoing care and the patient to be returned to highest functional status reasonably possible. This section covers various chronic management modalities including home-based exercise programs, health clubs, computerized exercise programs, work conditioning and work hardening programs, chronic pain management programs, and individual or group psychological or psychiatric counseling.

Section DWD 81.14 applies to the membership, appointment criteria, and role of the Health Care Provider Advisory Committee in advising the Worker's Compensation Division and the Worker's Compensation Advisory Council on modifying the treatment guidelines.

Summary of factual data and analytical methodologies. All of the proposed changes were approved by the Worker's Compensation Advisory Council. The Health Care Provider Advisory Committee suggested certain modifications to the treatment guidelines to conform with standard current medical practice.

Comparison with federal law. There are four federal worker's compensation programs. These are Federal Employees' Compensation Program, Longshore and Harbor Workers' Compensation Program, Federal Black Lung Benefits Program and Energy Employees Occupational Illness Program. There are no treatment guidelines that apply to treatment provided to injured employees under any of these programs.

Comparison with rules in adjacent states. Of the four adjacent states, Minnesota is the only state that has adopted worker's compensation treatment guidelines that apply to treatment provided to injured employees. Chapter DWD 81 is modeled on the Minnesota parameters. Illinois, Iowa, and Michigan have not adopted worker's compensation treatment guidelines. About 20 states have adopted worker's compensation treatment guidelines. In some states the guidelines may be referred to as treatment parameters or protocols.

Effect on small business. The proposed rules may affect small businesses as defined in s. 227.114 (1), Stats., but will not have a significant economic impact on a substantial number of small businesses. The Department's small business regulatory coordinator is Jennifer Jirschele, [phone], [e-mail].

Analysis used to determine effect on small businesses. The amendments to Chapter DWD 80 will have no effect on small businesses. The amendments are primarily technical corrections to conform to the current Chapter 102, Stats.

Any effect that Chapter DWD 81 may have on small business will not be detectable or measurable. Chapter DWD 81 could have the effect of reducing the rate of growth of health care costs for the treatment of injured employees for all employers, not just small employers. Department data shows that the following number of necessity of treatment disputes were sent out for review in the last three years: 102 in 2004; 71 in 2005; and 61 in 2006. We do not know if these cases involved large or small employers. For 2004 data shows there were 144,589 total work-related injuries (this number includes lost time and medical only) and the Department sent 102 necessity of treatment disputes out for review. The total number of lost time and medical only injuries for 2005 and 2006 is not yet available.

Fiscal Effect

The proposed rules will have no fiscal effect on state or local governments.

Agency Contact

Jim O'Malley, Section Chief

Worker's Compensation Legal Services

[phone]

jim.o'[e-mail].

Copies of the proposed rules. The proposed rules are available at the web site http://adminrules.wisconsin.gov by typing “worker's compensation" in the search engine. This site allows you to view documents associated with this rule's promulgation, register to receive email notification whenever the Department posts new information about this rulemaking order, and submit comments and view comments by others during the public comment period. You may receive a paper copy of the rule by contacting:

Elaine Pridgen

Office of Legal Counsel

Dept. of Workforce Development

P.O. Box 7946

Madison, WI 53707-7946

[phone]

[e-mail]

Written comments. Written comments on the proposed rules received at the above address, email, or through the http://adminrules.wisconsin.gov web site no later than March 26, 2007, will be given the same consideration as testimony presented at the hearing.

Notice of Hearing

Workforce Development

(Migrant Labor)

[CR 07-018]

NOTICE IS HEREBY GIVEN that pursuant to ss. 103.905 (1) and 227.11 (2), Stats., the Department of Workforce Development proposes to hold a public hearing to consider changes affecting ch. DWD 301, relating to migrant labor and affecting small businesses.

Hearing Information

Monday, March 19, 2007

1:30 p.m.

Madison

G.E.F. 1 Building, Room A415

201 E. Washington Avenue

Interested persons are invited to appear at the hearings and will be afforded the opportunity to make an oral presentation of their positions. Persons making oral presentations are requested to submit their facts, views, and suggested rewording in writing.

Visitors to the GEF 1 building are requested to enter through the left East Washington Avenue door and register with the customer service desk. The entrance is accessible via a ramp from the corner of Webster Street and East Washington Avenue. If you have special needs or circumstances regarding communication or accessibility at the hearing, please call [phone] at least 10 days prior to the hearing date. Accommodations such as ASL interpreters, English translators, or materials in audiotape format will be made available on request to the fullest extent possible.

Analysis Prepared by the Department of Workforce Development

Statutory authority: Sections 103.905 (1) and 227.11 (2), Stats.

Statutes interpreted: Sections 103.90 to 103.97, Stats.

Related statutes: NA

Explanation of agency authority. Pursuant to ss. 103.90 to 103.97, Stats., the Department of Workforce Development inspects and certifies all migrant camps in the state, ensures that migrant workers are provided with a work agreement that explains the required terms and conditions of employment, monitors and registers crew leaders who recruit migrant workers, ensures required field sanitation facilities are provided, and investigates complaints of apparent violations of migrant law. Section 103.905 (1), Stats., provides that the Department shall promulgate rules for the enforcement and implementation of 103.90 to 103.97, Stats.

Summary of the proposed rule. The proposed rule incorporates various explanatory guidelines that have been issued as labor alerts, updates obsolete references, and repeals provisions with obsolete compliance dates and provisions that conflict with the state building code. The substantive provisions include the following:

Under s. 103.915 (1) (a), Stats., a person subject to the section must provide a migrant worker with a written recruiting statement at the time of the worker's recruitment. The proposed rule clarifies that “recruitment" means a migrant worker is offered employment whether by personal contact, telephone, correspondence, or a recall notice due to a union contract. If recruitment is by telephone, the written worker agreement shall be furnished as soon as reasonably possible.

Under s. 103.915 (4) (a), Stats., migrant work agreements are required to include the approximate ending date of employment. The intent of the approximate ending date is to give migrant workers a reasonable idea of how long they will be employed so they can plan accordingly. In Wisconsin, many employers provide a bonus as an incentive to encourage migrant workers to work until the end of the season. The proposed rule provides that a work agreement may not state “until the end of the harvest" as a condition to receive a bonus because that defeats the intent of the approximate ending date of the required work agreement. A bonus may be conditioned on a worker continuing to work up to 7 days beyond the approximate ending date in the work agreement.

The proposed rule provides that only a single family may live in a one-family housing unit, except as approved by the department. A single family may include parents and their unmarried children, grandparents, unaccompanied married children, and dependent minor relatives. The department may allow other individuals to share a one-family housing unit with a family, taking into consideration respect for the integrity of the migrant family; privacy of the occupants; preference of family members; relationship of the occupants; size of the unit; health and safety concerns; the employer's justification; and compliance with other migrant camp rule provisions, fair housing law, and any other applicable law.

The current rule provides that all living quarters and service buildings shall be provided with permanently installed, operable heating equipment capable of maintaining a temperature of at least 70° F. The proposed rule lowers the required temperature to 68° F.

This proposed rule provides requirements on the placement of portable smoke detectors for migrant housing units that do not have permanently wired smoke detectors installed by a professional electrician at the time of construction. The portable smoke detectors shall be installed in each sleeping area of each housing unit or elsewhere in the unit within 6 feet of the doorway of each sleeping area and not in a kitchen; in the basement of each housing unit; and at the head of any stairway on each floor level of each housing unit. Each portable smoke detector shall be installed no closer than 3 to 12 inches from the ceiling, except a camp operator may follow a manufacturer's recommendation on the installation of a particular smoke detector in a different location if the camp operator provides the department's migrant labor inspector with proof of the manufacturer's installation recommendation at the time of the camp inspection.

Section 103.93 (2), Stats., provides that every employer shall furnish to each migrant worker at the time of payment of wages a written statement showing the amount of gross and net wages paid and each amount deducted or withheld for whatever purpose. The proposed rule clarifies that the wage statement may not combine information on wages earned by multiple members of a family.

The proposed rule requires that a summary of the migrant code shall be posted in a conspicuous place in all migrant labor camps or where the occupants report for work in a place easily seen by the camp occupants. The posting shall be on a form prescribed by the department and shall be in English and in the language of the camp occupants if other than English.

The current migrant rule contains provision that conflict with the state building code on the minimum ratio of persons per water closet, the number of urinals that may be substituted for toilet seats, the ratio persons per showerhead, and the ratio of persons per lavatory for new construction. Builders must comply with the stricter requirement of the state building code. The conflicting migrant provisions are repealed and references to the state building code are added.

Summary of related federal regulations. Federal regulations on migrant recruitment, migrant work agreements, payroll records, and provision of other information to migrant workers are found at 29 CFR Part 500. These regulations require each agricultural employer that employs migrant workers to post in a conspicuous place at the place of employment a poster provided by the Department of Labor that sets out the rights and protections for workers under the Migrant and Seasonal Agricultural Worker Protection Act, 29 USC 1801 et seq. A separate provision requires each employer that provides housing to migrant workers to post terms and conditions of the housing in a conspicuous place at the site of the housing. These regulations also require an itemized wage statement for each worker.

Owners of migrant worker housing constructed before April 3, 1980, may elect to comply with OSHA regulations at 29 CFR 1910.142 or Employment Training Administration (ETA) regulations at 20 CFR 654.404 et. seq. Migrant worker housing constructed on or after April 3, 1980, must comply with OSHA regulations. OSHA regulations require that a camp have adequate heating equipment during cold weather and require equipment capable of maintaining a temperature of at least 70.

Note: Complaint forms are available from the Department of Regulation and Licensing, Division of Enforcement, 1400 East Washington Avenue, P.O. Box 8935, Madison, Wisconsin 53708, or from the department's website at: http://drl.wi.gov.

Comparison with rules in adjacent states. Michigan's rules on migrant worker housing require a smoke detector within each shelter at a point centrally located in each corridor or area that provides access to rooms used for sleeping and at the top of a stairway where the second floor of a structure is intended to be occupied. Michigan also requires that a shelter and a common-use room that is used before May 31 or after September 1 be provided with heating equipment that is capable of maintaining a temperature of not less than 65° F.

Illinois requires a smoke detector within 15 feet of every room used for sleeping purposes. The detector must be installed on the ceiling and at least 6 inches fro many wall or on a wall between 4 and 6 inches from the ceiling. Every single-family residence shall have at least on smoke detector on every story, including basements but including unoccupied attics.

Iowa and Minnesota do not appear to have rules on the specific issues in the Department's proposed rules.

Summary of factual data and analytical methodologies. The proposed rules were recommended by the Council on Migrant Labor pursuant to s. 103.967, Stats.