SB665: Bill Text

5. Transferring from DWD to DHA the authority to grant licenses for non-attorneys to appear in worker's compensation cases.

6. Prohibiting DHA from promulgating rules that conflict with DWD's rules and requiring DHA to comply with DWD's rules.

General coverage

Employers subject to worker's compensation law

Under current law, every person who usually employs three or more employees for services performed in this state is subject to the worker's compensation law. This bill provides that every person who at any time employs three or more employees for services performed in this state is subject to the worker's compensation law and specifies that a person becomes subject to that law on the day on which the person employs three or more employees for services performed in this state.

Long-term care providers; clarification

The bill makes clarifications regarding individuals who perform services for persons receiving long-term care benefits under certain long-term care programs and who do not otherwise have worker's compensation coverage for those services to confirm that they are considered to be employees, for worker's compensation purposes, of the entities providing financial management services for the persons receiving the benefits.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

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

SB665,1 Section 1. 20.005 (3) (schedule) of the statutes: at the appropriate place, insert the following amounts for the purposes indicated: - See PDF for table - See PDF for table - See PDF for table - See PDF for table

SB665,2 Section 2. 20.445 (1) (ra) of the statutes is amended to read:

SB665,8,4 20.445 (1) (ra) Worker's compensation operations fund; administration. From the worker's compensation operations fund, the amounts in the schedule for the administration of the worker's compensation program by the department, for assistance to the department of justice in investigating and prosecuting fraudulent activity related to worker's compensation, for transfer to the uninsured employers fund under s. 102.81 (1) (c), and for transfer to the appropriation accounts under par. (rp) and s. 20.427 (1) (ra). All moneys received under ss. 102.28 (2) (b) and 102.75 (1) shall be credited to this appropriation account. 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, an amount not to exceed $500,000 may be transferred in each fiscal year to the uninsured employers fund under s. 102.81 (1) (c), the amount in the schedule under par. (rp) shall be transferred to the appropriation account under par. (rp), and the amount in the schedule under s. 20.427 (1) (ra) shall be transferred to the appropriation account under s. 20.427 (1) (ra).

SB665,3 Section 3. 20.445 (1) (rc) of the statutes is created to read:

SB665,8,10 20.445 (1) (rc) Worker's compensation operations fund; supplemental benefits. From the worker's compensation operations fund, the amounts in the schedule for providing reimbursement to insurance carriers paying supplemental benefits under s. 102.44 (1) (c). All moneys received under s. 102.75 (1g) shall be credited to this appropriation account.

SB665,4 Section 4. 20.445 (1) (sm) of the statutes is amended to read:

SB665,8,18 20.445 (1) (sm) Uninsured employers fund; payments. From the uninsured employers fund, a sum sufficient to make all moneys received from sources identified under s. 102.80 (1m) for the purpose of making the payments under s. 102.81 (1) and to obtain reinsurance under s. 102.81 (2). No moneys may be expended or encumbered under this paragraph until the first day of the first July beginning after the day that the secretary of workforce development files the certificate under s. 102.80 (3) (a).

SB665,5 Section 5. 46.27 (5m) of the statutes is amended to read:

SB665,8,25 46.27 (5m) Worker's compensation coverage. An individual who is performing services for a person receiving long-term care benefits under this section on a self-directed basis and who does not otherwise have worker's compensation coverage for those services is considered, for purposes of worker's compensation coverage, to be an employee of the entity that is providing financial management services for that person.

SB665,6 Section 6. 46.275 (4m) of the statutes is amended to read:

SB665,9,7 46.275 (4m) Worker's compensation coverage. An individual who is performing services for a person receiving long-term care benefits under this section on a self-directed basis and who does not otherwise have worker's compensation coverage for those services is considered, for purposes of worker's compensation coverage, to be an employee of the entity that is providing financial management services for that person.

SB665,7 Section 7. 46.277 (3r) of the statutes is amended to read:

SB665,9,14 46.277 (3r) Worker's compensation coverage. An individual who is performing services for a person receiving long-term care benefits under this section on a self-directed basis and who does not otherwise have worker's compensation coverage for those services is considered, for purposes of worker's compensation coverage, to be an employee of the entity that is providing financial management services for that person.

SB665,8 Section 8. 46.281 (1k) of the statutes is amended to read:

SB665,9,21 46.281 (1k) Worker's compensation coverage. An individual who is performing services for a person receiving the Family Care benefit, or benefits under Family Care Partnership, on a self-directed basis and who does not otherwise have worker's compensation coverage for those services is considered , for purposes of worker's compensation coverage, to be an employee of the entity that is providing financial management services for that person.

SB665,9 Section 9. 46.2897 (3) of the statutes is amended to read:

SB665,9,25 46.2897 (3) Worker's compensation coverage. An individual who is performing services for a person participating in the self-directed services option and who does not otherwise have worker's compensation coverage for those services is considered, for purposes of worker's compensation coverage, to be an employee of the entity that is providing financial management services for that person.

SB665,10 Section 10. 46.995 (3) of the statutes is amended to read:

SB665,10,9 46.995 (3) An individual who is performing services for a person receiving long-term care benefits under any children's long-term support waiver program on a self-directed basis and who does not otherwise have worker's compensation coverage for those services is considered, for purposes of worker's compensation coverage, to be an employee of the entity that is providing financial management services for that person.

SB665,11 Section 11. 73.0301 (1) (d) 3m. of the statutes is amended to read:

SB665,10,13 73.0301 (1) (d) 3m. A license or certificate issued by the department of workforce development under s. 102.17 (1) (c), 103.275 (2) (b), 103.34 (3) (c), 103.91 (1), 103.92 (3), 104.07 (1) or (2), or 105.13 (1).

SB665,12 Section 12. 73.0301 (1) (d) 15. of the statutes is created to read:

SB665,10,16 73.0301 (1) (d) 15. A license issued by the division of hearings and appeals under s. 102.17 (1) (c).

SB665,13 Section 13. 73.0301 (1) (e) of the statutes is amended to read:

SB665,10,25 73.0301 (1) (e) “Licensing department" means the department of administration; the division of hearings and appeals; the department of agriculture, trade and consumer protection; the board of commissioners of public lands; the department of children and families; the ethics commission; the department of financial institutions; the department of health services; the department of natural resources; the department of public instruction; the department of safety and professional services; the department of workforce development; the office of the commissioner of insurance; or the department of transportation.

SB665,14 Section 14. 102.04 (1) (b) 1. of the statutes is amended to read:

SB665,11,7 102.04 (1) (b) 1. Every person who usually at any time employs 3 or more employees for services performed in this state, whether in one or more trades, businesses, professions, or occupations, and whether in one or more locations. A person who employs 3 or more employees for services performed in this state becomes subject to this chapter on the day on which the person employs 3 or more such employees.

SB665,15 Section 15. 102.04 (1) (b) 2. of the statutes is amended to read:

SB665,11,12 102.04 (1) (b) 2. Every person who usually employs less than 3 employees, provided the person has paid wages of $500 or more in any calendar quarter for services performed in this state. Such employer a person shall become subject to this chapter on the 10th day of the month next succeeding such quarter.

SB665,16 Section 16. 102.11 (1) (intro.) of the statutes is amended to read:

SB665,12,4 102.11 (1) (intro.) The average weekly earnings for temporary disability, permanent total disability, or death benefits for injury in each calendar year on or after January 1, 1982, shall be not less than $30 nor more than the wage rate that results in a maximum compensation rate of 110 percent of the state's average weekly earnings as determined under s. 108.05 as of June 30 of the previous year. The average weekly earnings for permanent partial disability shall be not less than $30 and, for permanent partial disability for injuries occurring on or after March 2, 2016, and before January 1, 2017, not more than $513, resulting in a maximum compensation rate of $342, and, for permanent partial disability for injuries occurring on or after January 1, 2017, not more than $543, resulting in a maximum compensation rate of $362, for permanent partial disability for injuries occurring on or after the effective date of this subsection .... [LRB inserts date], and before January 1, 2019, not more than $573, resulting in a maximum compensation rate of $382, and, for permanent partial disability for injuries occurring on or after January 1, 2019, not more than $610.50, resulting in a maximum compensation rate of $407. Between such limits the average weekly earnings shall be determined as follows:

SB665,17 Section 17. 102.13 (1) (bm) of the statutes is created to read:

SB665,12,7 102.13 (1) (bm) 1. In this paragraph, “opiate” has the meaning given in s. 961.01 (16).

SB665,12,15 2. If a physician, chiropractor, psychologist, dentist, physician assistant, advanced practice nurse prescriber, or podiatrist conducts an examination under par. (a) and concludes that the employee has sustained a work-related injury but that opiates that have been prescribed to the employee for the injury are not medically necessary, any report prepared by the physician, chiropractor, psychologist, dentist, physician assistant, advanced practice nurse prescriber, or podiatrist that recommends the cessation of those opiates shall include all of the following:

SB665,12,18 a. A discussion of alternative treatments or medical devices for the injured employee's pain and, if opining that alternative treatments are also unnecessary, an explanation as to why such alternative treatments are unnecessary.

SB665,12,20 b. A proposed plan of discontinuation of opiate therapy consistent with any applicable guidelines concerning opiates issued under s. 440.035 (2m).

SB665,13,3 c. If the physician, chiropractor, psychologist, dentist, physician assistant, advanced practice nurse prescriber, or podiatrist opines that the injured employee has developed behaviors indicative of opioid use disorder related to the injury, a statement to the employee that the employer or insurer will pay for, and assist the employee in obtaining, a physician referral for addiction treatment. In that case, the employer or insurer shall advise the employee that opiates prescribed as a result of the injury will continue to be paid for by the employer or insurer until the employee is referred for addiction treatment.

SB665,18 Section 18. 102.13 (2) (b) of the statutes is amended to read:

SB665,13,21 102.13 (2) (b) A physician, chiropractor, podiatrist, psychologist, dentist, physician assistant, advanced practice nurse prescriber, hospital, or health service provider shall furnish a legible, certified duplicate of the written material requested under par. (a) in electronic format upon payment of $26 per request, unless the requester is unable to receive the material in electronic format or otherwise specifically requests the material in paper format, in which case the physician, chiropractor, podiatrist, psychologist, dentist, physician assistant, advanced practice nurse prescriber, hospital, or health service provider shall furnish a legible, certified duplicate of the written material requested under par. (a) in paper format upon payment of the actual costs of preparing the certified duplicate, not to exceed the greater of 45 cents per page or $7.50 per request, plus the actual costs of postage, or shall furnish a legible, certified duplicate of that material in electronic format upon payment of $26 per request. Any person who refuses to provide certified duplicates of written material in the person's custody that is requested under par. (a) shall be liable for reasonable and necessary costs and, notwithstanding s. 814.04 (1), reasonable attorney fees incurred in enforcing the requester's right to the duplicates under par. (a).

SB665,19 Section 19. 102.13 (2) (c) of the statutes is amended to read:

SB665,14,13 102.13 (2) (c) Except as provided in this paragraph, if an injured employee has a period of temporary disability that exceeds 3 weeks or a permanent disability, if the injured employee has undergone surgery to treat his or her injury, other than surgery to correct a hernia, or if the injured employee sustained an eye injury requiring medical treatment on 3 or more occasions off the employer's premises, the department may by rule require the insurer or self-insured employer to submit to the department a final report of the employee's treating practitioner. The department may not require an insurer or self-insured employer to submit to the department a final report of an employee's treating practitioner when the insurer or self-insured employer denies the employee's claim for compensation in its entirety and the employee does not contest that denial. A treating practitioner shall complete a final report on a timely basis and may charge a reasonable fee for the completion of the final report, not to exceed $100, but may not require prepayment of that fee. An Subject to s. 102.16 (2) (i), an insurer or self-insured employer that disputes the reasonableness of a fee charged for the completion of a treatment practitioner's final report may submit that dispute to the department for resolution under s. 102.16 (2).

SB665,20 Section 20. 102.14 (title) of the statutes is amended to read:

SB665,14,16 102.14 (title) Jurisdiction , powers, and duties of department and division; advisory committee council.

SB665,21 Section 21. 102.14 of the statutes is renumbered 102.14 (1m).

SB665,22 Section 22. 102.14 (2m) of the statutes is created to read:

SB665,15,2 102.14 (2m) The department of workforce development shall coordinate with the department of safety and professional services and credentialing boards, as defined in s. 440.01 (2) (bm), and shall educate injured employees about treatments and about devices approved by the federal food and drug administration for chronic pain related to injuries compensable under this chapter that, in lieu of or in combination with medication, may reasonably be required to cure or provide relief from injured employees' pain and about the fact that such treatments and devices may constitute covered medical expenses under this chapter.

SB665,23 Section 23. 102.15 (title) of the statutes is amended to read:

SB665,15,4 102.15 (title) Rules of procedure; transcripts.

SB665,24 Section 24. 102.15 (1) of the statutes is renumbered 102.15 (1r) and amended to read:

SB665,15,12 102.15 (1r) Subject to this chapter, the The division may adopt its own promulgate rules as necessary to carry out its duties and functions under this chapter, except that notwithstanding s. 227.11, the division may only promulgate rules of procedure and may change the same from time to time. The division may not promulgate any rule that conflicts with, and shall comply with, rules promulgated by the department under this chapter.

SB665,25 Section 25 . 102.15 (1g) of the statutes is created to read:

SB665,15,18 102.15 (1g) The department may promulgate rules as necessary to carry out its duties and functions under this chapter. The provisions of s. 103.005 relating to the adoption, publication, modification, and court review of rules or general orders of the department shall apply to all rules promulgated or general orders adopted under this chapter.

SB665,26 Section 26. 102.16 (1) (b) of the statutes is renumbered 102.16 (1) (b) 1. and amended to read:

SB665,16,3 102.16 (1) (b) 1. In the case of a claim for compensation with respect to which no application has been filed under s. 102.17 (1) (a) 1. or with respect to which an application has been filed, but the application is not ready to be scheduled for a hearing, the department may review and set aside, modify, or confirm a compromise of the claim within one year after the date on which the compromise is filed with the department, the date on which an award has been entered based on the compromise, or the date on which an application for the office department to take any of those actions is filed with the department.

SB665,27 Section 27. 102.16 (1) (b) 2. of the statutes is created to read:

SB665,16,9 102.16 (1) (b) 2. The department may conduct alternative dispute resolution activities for a case involving an employee who is not represented by an attorney with respect to which no application has been filed under s. 102.17 (1) (a) 1. or with respect to which an application has been filed, regardless of whether the application is ready to be scheduled for a hearing.

SB665,28 Section 28. 102.16 (1m) (a) of the statutes is amended to read:

SB665,17,4 102.16 (1m) (a) If an insurer or self-insured employer concedes by compromise under sub. (1) or stipulation under s. 102.18 (1) (a) that the insurer or self-insured employer 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 or the division may include in its order confirming the compromise or stipulation a determination made by the department under sub. (2) as to the reasonableness of the fee or, if such a determination has not yet been made, the department or the division may notify, or direct the insurer or self-insured employer to notify, the health service provider under sub. (2) (b) that the reasonableness of the fee is in dispute. The department or the division shall deny payment of a health service fee that the department determines under sub. (2) to be unreasonable. A health service provider and an insurer or self-insured employer that are parties to a fee dispute under this paragraph are bound by the department's determination under sub. (2) on the reasonableness of the disputed fee, unless that determination is set aside, reversed, or modified by the department under sub. (2) (f) or is set aside on judicial review as provided in sub. (2) (f). This paragraph does not apply to a health service provided to an injured employee beginning on the date on which the notice under s. 102.423 (1) (a) is published in the Wisconsin Administrative Register.

SB665,29 Section 29. 102.16 (2) (i) of the statutes is created to read:

SB665,17,8 102.16 (2) (i) This subsection does not apply to a health service provided to an injured employee beginning on the date on which the notice under s. 102.423 (1) (a) is published in the Wisconsin Administrative Register.

SB665,30 Section 30. 102.17 (1) (b) of the statutes is amended to read:

SB665,17,24 102.17 (1) (b) In any dispute or controversy pending before the department or the division, the department or the division may direct the parties to appear before an examiner for a conference to consider the clarification of issues, the joining of additional parties, the necessity or desirability of amendments to the pleadings, the obtaining of admissions of fact or of documents, records, reports, and bills that may avoid unnecessary proof, and such other matters as may aid in disposition of the dispute or controversy. After that conference, the department or the division may issue an order requiring disclosure or exchange of any information or written material that the department or the division considers material to the timely and orderly disposition of the dispute or controversy. If a party fails to disclose or exchange that information within the time stated in the order, the department or the division may issue an order dismissing the claim without prejudice or excluding evidence or testimony relating to the information or written material. The department or the division shall provide each party with a copy of any order issued under this paragraph.

SB665,31 Section 31. 102.17 (1) (c) of the statutes is amended to read:

SB665,18,14 102.17 (1) (c) 1. Any party shall have the right to be present at any hearing, in person or by attorney or any other agent, and to present such testimony as may be pertinent to the controversy before the division. No person, firm, or corporation, other than an attorney at law who is licensed to practice law in the state, may appear on behalf of any party in interest before the division or any member or employee of the division assigned to conduct any hearing, investigation, or inquiry relative to a claim for compensation or benefits under this chapter, unless the person is 18 years of age or older, does not have an arrest or conviction record, subject to ss. 111.321, 111.322 and 111.335, is otherwise qualified, and has obtained from the department division a license with authorization to appear in matters or proceedings before the division. Except as provided under pars. (cm), (cr), and (ct), the license shall be issued by the department division under rules promulgated by the department division. The department division shall maintain in its office a current list of persons to whom licenses have been issued.

SB665,19,5 2. Any license issued under subd. 1. may be suspended or revoked by the department division for fraud or serious misconduct on the part of an agent, may be denied, suspended, nonrenewed, or otherwise withheld by the department division for failure to pay court-ordered payments as provided in par. (cm) on the part of an agent, and may be denied or revoked if the department of revenue certifies under s. 73.0301 that the applicant or licensee is liable for delinquent taxes or if the department determines of workforce development certifies under par. (ct) s. 108.227 that the applicant or licensee is liable for delinquent unemployment insurance contributions. Before suspending or revoking the license of the agent on the grounds of fraud or misconduct, the department division shall give notice in writing to the agent of the charges of fraud or misconduct and shall give the agent full opportunity to be heard in relation to those charges. In denying, suspending, restricting, refusing to renew, or otherwise withholding a license for failure to pay court-ordered payments as provided in par. (cm), the department division shall follow the procedure provided in a memorandum of understanding entered into under s. 49.857.

SB665,19,10 3. Unless otherwise suspended or revoked, a license issued under subd. 1. shall be in force from the date of issuance until the June 30 following the date of issuance and may be periodically renewed by the department from time to time division, but each renewed license shall expire on the June 30 following the issuance of the renewed license.

SB665,32 Section 32. 102.17 (1) (cg) of the statutes is amended to read:

SB665,19,17 102.17 (1) (cg) 1. Except as provided in subd. 2m., the department division shall require each applicant for a license under par. (c) who is an individual to provide the department division with the applicant's social security number, and shall require each applicant for a license under par. (c) who is not an individual to provide the department division with the applicant's federal employer identification number, when initially applying for or applying to renew the license.

SB665,19,24 2. If an applicant who is an individual fails to provide the applicant's social security number to the department division or if an applicant who is not an individual fails to provide the applicant's federal employer identification number to the department division, the department division may not issue or renew a license under par. (c) to or for the applicant unless the applicant is an individual who does not have a social security number and the applicant submits a statement made or subscribed under oath or affirmation as required under subd. 2m.

SB665,20,5 2m. If an applicant who is an individual does not have a social security number, the applicant shall submit a statement made or subscribed under oath or affirmation to the department division that the applicant does not have a social security number. The form of the statement shall be prescribed by the department division. A license issued in reliance upon a false statement submitted under this subdivision is invalid.

SB665,20,11 3. The department of workforce development division may not disclose any information received under subd. 1. to any person except to the department of revenue for the sole purpose of requesting certifications under s. 73.0301, the department of workforce development for the sole purpose of requesting certifications under s. 108.227, or the department of children and families for purposes of administering s. 49.22.

SB665,33 Section 33. 102.17 (1) (cr) of the statutes is amended to read:

SB665,20,18 102.17 (1) (cr) The department division shall deny an application for the issuance or renewal of a license under par. (c), or revoke such a license already issued, if the department of revenue certifies under s. 73.0301 that the applicant or licensee is liable for delinquent taxes. Notwithstanding par. (c), an action taken under this paragraph is subject to review only as provided under s. 73.0301 (5) and not as provided in ch. 227.

SB665,34 Section 34. 102.17 (1) (ct) of the statutes is repealed and recreated to read:

SB665,20,25 102.17 (1) (ct) The division shall deny an application for the issuance or renewal of a license under par. (c), or revoke such a license already issued, if the department certifies under s. 108.227 that the applicant or licensee is liable for delinquent contributions, as defined in s. 108.227 (1) (d). Notwithstanding par. (c), an action taken under this paragraph is subject to review only as provided under s. 108.227 (5) and not as provided in ch. 227.

SB665,35 Section 35. 102.17 (2) of the statutes is amended to read:

SB665,21,13 102.17 (2) If the division has reason to believe that the payment of compensation has not been made, the division may on its own motion give notice to the parties, in the manner provided for the service of an application, of a time and place when a hearing will be held for the purpose of determining the facts, or if the department has reason to believe that the payment of compensation has not been made, the department may request that the division give such a notice of hearing. The notice shall contain a statement of the matter to be considered. All provisions of this chapter governing proceedings on an application shall apply, insofar as applicable, to a proceeding under this subsection. When the division schedules a hearing on its own motion, as provided in this subsection, neither the division does not become nor the department becomes a party in interest, and is not neither the division nor the department shall be required to appear as a party at the hearing.

SB665,36 Section 36. 102.175 (2) of the statutes is amended to read: