Amendment ASA1-AB686

LRBs0493/1

GMM:wlj:rs

2005 - 2006 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO 2005 ASSEMBLY BILL 686

February 10, 2006 - Offered by Representative Mursau.

AB686-ASA1,1,11 An Act to amend 20.445 (1) (ha), 102.125, 102.16 (1m) (a), 102.16 (1m) (b), 102.16 (2) (a), 102.16 (2) (am), 102.16 (2) (b), 102.16 (2) (c), 102.16 (2) (e) 1., 102.16 (2) (f), 102.16 (2m) (a), 102.16 (2m) (am), 102.16 (2m) (b), 102.16 (2m) (c), 102.16 (2m) (d), 102.16 (2m) (e), 102.17 (1) (g), 102.18 (1) (bg) 1., 102.18 (1) (bw), 102.26 (3) (b) 3., 102.28 (2) (a), 102.28 (2) (b) (title), 102.28 (2) (c), 102.28 (2) (d), 102.28 (7) (title), 102.28 (7) (a), 102.28 (7) (b), 102.33 (2) (b) (intro.), 102.33 (2) (b) 3., 102.75 (1), 102.75 (2) and 102.75 (4); and to create 20.445 (1) (sg), 25.17 (1) (pd), 102.28 (2) (bm), 102.28 (9) and 102.28 (10) of the statutes; relating to: permitting certain employers engaged in the forestry industry to pool their worker's compensation liabilities for purposes of operating as a self-insured group and granting rule-making authority.

Analysis by the Legislative Reference Bureau

Under current law, every employer that is subject to the worker's compensation law must carry worker's compensation insurance from an insurer that is authorized to do business in this state (duty to insure), except that the Department of Workforce Development (DWD) may exempt an employer from the duty to insure if the employer shows that it is able to self-insure its worker's compensation liability and if the employer agrees to report all compensable injuries and to comply with the worker's compensation law and the rules of DWD.

Current law also establishes a self-insured employers liability fund, consisting of assessments paid into the fund by self-insured employers, that is used to pay the worker's compensation liability of current or former self-insured employers that are unable to pay that liability.

This substitute amendment permits two or more employers engaged in the forest industry, which is defined in the substitute amendment as the business of growing, harvesting, processing, or selling Christmas trees, firewood, maple syrup, or any other product derived from wood or wood fiber that is manufactured with woodworking equipment, that have combined assets of $1,000,000 or more to enter into an agreement to pool their worker's compensation liabilities in order to obtain an exemption from the duty to insure, if those employers agree to assume joint and several liability for payment of those liabilities. Under the substitute amendment, DWD may exempt a group of such employers from their duty to insure if the group shows that it is able to self-insure its worker's compensation liability and if the group agrees to report all compensable injuries and to comply with the worker's compensation law and the rules of DWD. The substitute amendment also establishes a self-insured groups liability fund, consisting of assessments paid into the fund by self-insured groups, that is used to pay the worker's compensation liability of current or former self-insured groups that are unable to pay that liability.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB686-ASA1, s. 1 Section 1. 20.445 (1) (ha) of the statutes is amended to read:

AB686-ASA1,2,8 20.445 (1) (ha) Worker's compensation operations. The amounts in the schedule for the administration of the worker's compensation program by the department. All moneys received under ss. 102.28 (2) (b) and (bm) and 102.75 for the department's activities and not appropriated under par. (hp) shall be credited to this appropriation. From this appropriation, an amount not to exceed $5,000 may be expended each fiscal year for payment of expenses for travel and research by the council on worker's compensation.

AB686-ASA1, s. 2 Section 2. 20.445 (1) (sg) of the statutes is created to read:

AB686-ASA1,3,3 20.445 (1) (sg) Self-insured groups liability fund. All moneys paid into the self-insured groups liability fund under s. 102.28 (10), to be used for the discharge of liability and claims service authorized under that subsection.

AB686-ASA1, s. 3 Section 3. 25.17 (1) (pd) of the statutes is created to read:

AB686-ASA1,3,5 25.17 (1) (pd) Self-insured groups liability fund (s. 102.28 (10));

AB686-ASA1, s. 4 Section 4. 102.125 of the statutes is amended to read:

AB686-ASA1,3,21 102.125 Fraudulent claims reporting and investigation. If an insurer or, self-insured employer, or self-insured group has evidence that a claim is false or fraudulent in violation of s. 943.395 and if the insurer or , self-insured employer, or self-insured group is satisfied that reporting the claim to the department will not impede its ability to defend the claim, the insurer or , self-insured employer, or self-insured group shall report the claim to the department. The department may require an insurer or, self-insured employer, or self-insured group to investigate an allegedly false or fraudulent claim and may provide the insurer or, self-insured employer, or self-insured group with any records of the department relating to that claim. An insurer or, self-insured employer, or self-insured group that investigates a claim under this section shall report on the results of that investigation to the department. If based on the investigation the department has a reasonable basis to believe that a violation of s. 943.395 has occurred, the department shall refer the results of the investigation to the district attorney of the county in which the alleged violation occurred for prosecution.

AB686-ASA1, s. 5 Section 5. 102.16 (1m) (a) of the statutes is amended to read:

AB686-ASA1,4,7 102.16 (1m) (a) If an insurer or, self-insured employer, or self-insured group concedes by compromise under sub. (1) or stipulation under s. 102.18 (1) (a) that the insurer or, self-insured employer, or self-insured group is liable under this chapter for any health services provided to an injured employee by a health service provider, but disputes the reasonableness of the fee charged by the health service provider, the department may include in its order confirming the compromise or stipulation a determination as to the reasonableness of the fee or the department may notify, or direct the insurer or, self-insured employer, or self-insured group to notify, the health service provider under sub. (2) (b) that the reasonableness of the fee is in dispute.

AB686-ASA1, s. 6 Section 6. 102.16 (1m) (b) of the statutes is amended to read:

AB686-ASA1,4,17 102.16 (1m) (b) If an insurer or, self-insured employer, or self-insured group concedes by compromise under sub. (1) or stipulation under s. 102.18 (1) (a) that the insurer or, self-insured employer, or self-insured group is liable under this chapter for any treatment provided to an injured employee by a health service provider, but disputes the necessity of the treatment, the department may include in its order confirming the compromise or stipulation a determination as to the necessity of the treatment or the department may notify, or direct the insurer or, self-insured employer, or self-insured group to notify, the health service provider under sub. (2m) (b) that the necessity of the treatment is in dispute.

AB686-ASA1, s. 7 Section 7. 102.16 (2) (a) of the statutes is amended to read:

AB686-ASA1,5,7 102.16 (2) (a) Except as provided in this paragraph, the department has jurisdiction under this subsection, sub. (1m) (a), and s. 102.17 to resolve a dispute between a health service provider and an insurer or, self-insured employer, or self-insured group over the reasonableness of a fee charged by the health service provider for health services provided to an injured employee who claims benefits under this chapter. A health service provider may not submit a fee dispute to the department under this subsection before all treatment by the health service provider of the employee's injury has ended if the amount in controversy, whether based on a single charge or a combination of charges for one or more days of service, is less than $25. After all treatment by a health service provider of an employee's injury has ended, the health service provider may submit any fee dispute to the department, regardless of the amount in controversy. The department shall deny payment of a health service fee that the department determines under this subsection, sub. (1m) (a), or s. 102.18 (1) (b) to be unreasonable.

AB686-ASA1, s. 8 Section 8. 102.16 (2) (am) of the statutes is amended to read:

AB686-ASA1,5,22 102.16 (2) (am) A health service provider and an insurer or, self-insured employer, or self-insured group that are parties to a fee dispute under this subsection are bound by the department's determination under this subsection on the reasonableness of the disputed fee, unless that determination is set aside on judicial review as provided in par. (f). A health service provider and an insurer or, self-insured employer, or self-insured group that are parties to a fee dispute under sub. (1m) (a) are bound by the department's determination under sub. (1m) (a) on the reasonableness of the disputed fee, unless that determination is set aside or modified by the department under sub. (1). An insurer or, self-insured employer, or self-insured group that is a party to a fee dispute under s. 102.17 and a health service provider are bound by the department's determination under s. 102.18 (1) (b) on the reasonableness of the disputed fee, unless that determination is set aside, reversed, or modified by the department under s. 102.18 (3) or by the commission under s. 102.18 (3) or (4) or is set aside on judicial review under s. 102.23.

AB686-ASA1, s. 9 Section 9. 102.16 (2) (b) of the statutes is amended to read:

AB686-ASA1,6,6 102.16 (2) (b) An insurer or, self-insured employer, or self-insured group that disputes the reasonableness of a fee charged by a health service provider or the department under sub. (1m) (a) or s. 102.18 (1) (bg) 1. shall provide reasonable notice to the health service provider that the fee is being disputed. After receiving reasonable notice under this paragraph or under sub. (1m) (a) or s. 102.18 (1) (bg) 1. that a health service fee is being disputed, a health service provider may not collect the disputed fee from, or bring an action for collection of the disputed fee against, the employee who received the services for which the fee was charged.

AB686-ASA1, s. 10 Section 10. 102.16 (2) (c) of the statutes is amended to read:

AB686-ASA1,6,19 102.16 (2) (c) After a fee dispute is submitted to the department, the insurer or, self-insured employer, or self-insured group that is a party to the dispute shall provide to the department information on that fee and information on fees charged by other health service providers for comparable services. The insurer or, self-insured employer, or self-insured group shall obtain the information on comparable fees from a database that is certified by the department under par. (h). Except as provided in par. (e) 1., if the insurer or, self-insured employer, or self-insured group does not provide the information required under this paragraph, the department shall determine that the disputed fee is reasonable and order that it be paid. If the insurer or, self-insured employer, or self-insured group provides the information required under this paragraph, the department shall use that information to determine the reasonableness of the disputed fee.

AB686-ASA1, s. 11 Section 11. 102.16 (2) (e) 1. of the statutes is amended to read:

AB686-ASA1,7,3 102.16 (2) (e) 1. Subject to subd. 2., if an insurer or, self-insured employer, or self-insured group that disputes the reasonableness of a fee charged by a health service provider cannot provide information on fees charged by other health service providers for comparable services because the database to which the insurer or, self-insured employer, or self-insured group subscribes is not able to provide accurate information for the health service procedure at issue, the department may use any other information that the department considers to be reliable and relevant to the disputed fee to determine the reasonableness of the disputed fee.

AB686-ASA1, s. 12 Section 12. 102.16 (2) (f) of the statutes is amended to read:

AB686-ASA1,7,12 102.16 (2) (f) Within 30 days after a determination under this subsection, the department may set aside, reverse, or modify the determination for any reason that the department considers sufficient. Within 60 days after a determination under this subsection, the department may set aside, reverse, or modify the determination on grounds of mistake. A health service provider, insurer, or self-insured employer, or self-insured group that is aggrieved by a determination of the department under this subsection may seek judicial review of that determination in the same manner that compensation claims are reviewed under s. 102.23.

AB686-ASA1, s. 13 Section 13. 102.16 (2m) (a) of the statutes is amended to read:

AB686-ASA1,8,2 102.16 (2m) (a) Except as provided in this paragraph, the department has jurisdiction under this subsection, sub. (1m) (b), and s. 102.17 to resolve a dispute between a health service provider and an insurer or, self-insured employer, or self-insured group over the necessity of treatment provided for an injured employee who claims benefits under this chapter. A health service provider may not submit a dispute over necessity of treatment to the department under this subsection before all treatment by the health service provider of the employee's injury has ended if the amount in controversy, whether based on a single charge or a combination of charges for one or more days of service, is less than $25. After all treatment by a health service provider of an employee's injury has ended, the health service provider may submit any dispute over necessity of treatment to the department, regardless of the amount in controversy. The department shall deny payment for any treatment that the department determines under this subsection, sub. (1m) (b), or s. 102.18 (1) (b) to be unnecessary.

AB686-ASA1, s. 14 Section 14. 102.16 (2m) (am) of the statutes is amended to read:

AB686-ASA1,8,18 102.16 (2m) (am) A health service provider and an insurer or, self-insured employer, or self-insured group that are parties to a dispute under this subsection over the necessity of treatment are bound by the department's determination under this subsection on the necessity of that treatment, unless that determination is set aside on judicial review as provided in par. (e). A health service provider and an insurer or, self-insured employer, or self-insured group that are parties to a dispute under sub. (1m) (b) over the necessity of treatment are bound by the department's determination under sub. (1m) (b) on the necessity of that treatment, unless that determination is set aside or modified by the department under sub. (1). An insurer or, self-insured employer, or self-insured group that is a party to a dispute under s. 102.17 over the necessity of treatment and a health service provider are bound by the department's determination under s. 102.18 (1) (b) on the necessity of that treatment, unless that determination is set aside, reversed, or modified by the department under s. 102.18 (3) or by the commission under s. 102.18 (3) or (4) or is set aside on judicial review under s. 102.23.

AB686-ASA1, s. 15 Section 15. 102.16 (2m) (b) of the statutes is amended to read:

AB686-ASA1,9,3 102.16 (2m) (b) An insurer or, self-insured employer, or self-insured group that disputes the necessity of treatment provided by a health service provider or the department under sub. (1m) (b) or s. 102.18 (1) (bg) 2. shall provide reasonable notice to the health service provider that the necessity of that treatment is being disputed. After receiving reasonable notice under this paragraph or under sub. (1m) (b) or s. 102.18 (1) (bg) 2. that the necessity of treatment is being disputed, a health service provider may not collect a fee for that disputed treatment from, or bring an action for collection of the fee for that disputed treatment against, the employee who received the treatment.

AB686-ASA1, s. 16 Section 16. 102.16 (2m) (c) of the statutes is amended to read:

AB686-ASA1,9,19 102.16 (2m) (c) Before determining under this subsection the necessity of treatment provided for an injured employee who claims benefits under this chapter, the department shall obtain a written opinion on the necessity of the treatment in dispute from an expert selected by the department. Before determining under sub. (1m) (b) or s. 102.18 (1) (bg) 2. the necessity of treatment provided for an injured employee who claims benefits under this chapter, the department may, but is not required to, obtain such an expert opinion. To qualify as an expert, a person must be licensed to practice the same health care profession as the individual health service provider whose treatment is under review and must either be performing services for an impartial health care services review organization or be a member of an independent panel of experts established by the department under par. (f). The department shall adopt the written opinion of the expert as the department's determination on the issues covered in the written opinion, unless the health service provider or the insurer or, self-insured employer present, or self-insured group presents clear and convincing written evidence that the expert's opinion is in error.

AB686-ASA1, s. 17 Section 17. 102.16 (2m) (d) of the statutes is amended to read:

AB686-ASA1,9,25 102.16 (2m) (d) The department may charge a party to a dispute over the necessity of treatment provided for an injured employee who claims benefits under this chapter for the full cost of obtaining the written opinion of the expert under par. (c). The department shall charge the insurer or, self-insured employer, or self-insured group for the full cost of obtaining the written opinion of the expert for the first dispute that a particular individual health service provider is involved in, unless the department determines that the individual health service provider's position in the dispute is frivolous or based on fraudulent representations. In a subsequent dispute involving the same individual health service provider, the department shall charge the losing party to the dispute for the full cost of obtaining the written opinion of the expert.

AB686-ASA1, s. 18 Section 18. 102.16 (2m) (e) of the statutes is amended to read:

AB686-ASA1,10,15 102.16 (2m) (e) Within 30 days after a determination under this subsection, the department may set aside, reverse, or modify the determination for any reason that the department considers sufficient. Within 60 days after a determination under this subsection, the department may set aside, reverse, or modify the determination on grounds of mistake. A health service provider, insurer, or self-insured employer, or self-insured group that is aggrieved by a determination of the department under this subsection may seek judicial review of that determination in the same manner that compensation claims are reviewed under s. 102.23.

AB686-ASA1, s. 19 Section 19. 102.17 (1) (g) of the statutes is amended to read:

AB686-ASA1,11,4 102.17 (1) (g) Whenever the testimony presented at any hearing indicates a dispute or creates a doubt as to the extent or cause of disability or death, the department may direct that the injured employee be examined, that an autopsy be performed, or that an opinion be obtained without examination or autopsy, by or from an impartial, competent physician, chiropractor, dentist, psychologist , or podiatrist designated by the department who is not under contract with or regularly employed by a compensation insurance carrier or, self-insured employer, or self-insured group. The expense of the examination, autopsy, or opinion shall be paid by the employer or, if the employee claims compensation under s. 102.81, from the uninsured employers fund. The report of the examination, autopsy, or opinion shall be transmitted in writing to the department and a copy of the report shall be furnished by the department to each party, who shall have an opportunity to rebut such report on further hearing.