SB665: Bill Text

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:

SB665,21,22 102.175 (2) If after a hearing or a prehearing conference the department or the division determines that an injured employee is entitled to compensation but that there remains in dispute only the issue of which of 2 or more parties is liable for that compensation, the department or the division may order one or more parties to pay compensation in an amount, time, and manner as determined by the department or the division. If the department or the division later determines that another party is liable for compensation, the department or the division shall order that other party to reimburse any party that was ordered to pay compensation under this subsection.

SB665,37 Section 37. 102.18 (1) (bg) 1. of the statutes is amended to read:

SB665,22,9 102.18 (1) (bg) 1. If the division finds under par. (b) that an 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 that the reasonableness of the fee charged by the health service provider is in dispute, the division may include in its order under par. (b) a determination made by the department under s. 102.16 (2) as to the reasonableness of the fee or, if such a determination has not yet been made, the division may notify, or direct the insurer or self-insured employer to notify, the health service provider under s. 102.16 (2) (b) that the reasonableness of the fee is in dispute. This subdivision 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.

SB665,38 Section 38. 102.18 (1) (bp) of the statutes is amended to read:

SB665,23,2 102.18 (1) (bp) If the department or the division determines that the employer or insurance carrier suspended, terminated, or failed to make payments or failed to report an injury as a result of malice or bad faith, the department or the division may include a penalty in an award to an employee for each event or occurrence of malice or bad faith. That penalty is the exclusive remedy against an employer or insurance carrier for malice or bad faith. If the penalty is imposed for an event or occurrence of malice or bad faith that causes a payment that is due an injured employee to be delayed in violation of s. 102.22 (1) or overdue in violation of s. 628.46 (1), the department or the division may not also order an increased payment under s. 102.22 (1) or the payment of interest under s. 628.46 (1). The department or the division may award an amount that the department or the division considers just, not to exceed the lesser of 200 percent of total compensation due or $30,000 for each event or occurrence of malice or bad faith. The department or the division may assess the penalty against the employer, the insurance carrier, or both. Neither the employer nor the insurance carrier is liable to reimburse the other for the penalty amount. The division department may, by rule, define actions that demonstrate malice or bad faith.

SB665,39 Section 39. 102.18 (2) (a) of the statutes is amended to read:

SB665,23,6 102.18 (2) (a) The department shall have and maintain on its staff such examiners as are necessary to hear and decide claims for compensation described in s. 102.16 (1) (b) 1. and to assist in the effective administration of this chapter.

SB665,40 Section 40. 102.18 (5) of the statutes is amended to read:

SB665,23,20 102.18 (5) If it appears to the department or the division that a mistake may have been made as to cause of injury in the findings, order, or award upon an alleged injury based on accident, when in fact the employee was suffering from an occupational disease, within 3 years after the date of the findings, order, or award the department or the division may, upon its own motion, with or without hearing, set aside the findings, order, or award, or the department or the division may take that action upon application made within those 3 years. After an opportunity for hearing, the division may, if in fact the employee is suffering from disease arising out of the employment, make new findings, and a new order or award, or the division may reinstate the previous findings, order, or award. The department may, if in fact the employee is suffering from disease arising out of the employment, make new findings, and a new order or award, or the department may reinstate the previous findings, order, or award when no hearing is requested.

SB665,41 Section 41. 102.18 (6) of the statutes is amended to read:

SB665,24,2 102.18 (6) In case of disease arising out of employment, the department or the division may from time to time review its findings, order, or award, and make new findings, or a new order or award, based on the facts regarding disability or otherwise as those facts may appear at the time of the review. This subsection shall not affect the application of the limitation in s. 102.17 (4).

SB665,42 Section 42. 102.33 (1m) of the statutes is created to read:

SB665,24,8 102.33 (1m) Each employer shall post, in each workplace, a notice in a form approved by the department setting forth employees' rights under this chapter. The department shall, in conjunction with its activities under s. 102.14 (2m), include in the notice information to educate injured employees regarding opiate therapies, opiate addiction, and alternative treatments for pain.

SB665,43 Section 43. 102.33 (2) (b) 7. of the statutes is created to read:

SB665,24,15 102.33 (2) (b) 7. The requester is the department of health services, a county department of social services under s. 46.215 or 46.22, or a county department of human services under s. 46.23, and the request is limited to the name and address of the employee who is the subject of the record, the name and address of the employee's employer, and any financial information about that employee contained in the record.

SB665,44 Section 44. 102.39 of the statutes is repealed.

SB665,45 Section 45. 102.423 of the statutes is created to read:

SB665,24,25 102.423 Health service fee schedule. (1) Health service fee schedule. (a) By January 1, 2019, the department shall establish a schedule of the maximum fees that a health care provider may charge an employer or insurer for health services provided to an injured employee who claims benefits under this chapter. When that schedule is established, the department shall notify the legislative reference bureau and the legislative reference bureau shall publish that notice in the Wisconsin Administrative Register. For the health services in the schedule, the department shall do all of the following:

SB665,25,4 1. Based on sources obtained by the department, determine, to the extent possible, the average negotiated price made for group health benefit plans, as defined in s. 632.745 (9), group health plans, as defined in s. 632.745 (10), and self-insured health plans, as defined in s. 632.745 (24).

SB665,25,8 2. Determine the rates under the program under 42 USC 1395 et seq. for health services using the Medicare billing code system, including Current Procedural Terminology codes, as maintained by the American Medical Association, and Healthcare Common Procedural Coding System codes.

SB665,25,10 3. Set the maximum fee for each health service included in the schedule by doing all of the following:

SB665,25,13 a. Using the rates for health services determined under subd. 2., determine as a percentage the average variance between those amounts and the amounts under subd. 1.

SB665,25,15 b. Increase the rates for health services determined under subd. 2. by the percentage determined under subd. 3. a.

SB665,25,17 c. Subject to subd. 4., increase the amounts determined under subd. 3. b. by 2.5 percent for administrative costs.

SB665,26,5 4. Prior to the date on which the notice is published in the Wisconsin Administrative Register under this paragraph, one or more health care providers may petition the department to hold a public hearing to gather information to be used to determine if the increase under subd. 3. c. for administrative costs is sufficient to pay for the unique administrative costs incurred in treating worker's compensation patients as compared to patients whose bills are paid by other means. If the department determines, based on the request and information gathered and submitted, that the percentage increase under subd. 3. c. for unique administrative costs is generally insufficient to pay for the unique administrative costs incurred by health care providers for treating worker's compensation patients, the department shall establish and apply an alternative increase for the unique administrative costs that is not more than 10 percent of the cost of the service as determined under subd. 3. b.

SB665,26,9 (b) 1. In this paragraph, “consumer price index" means the average of the consumer price index for medical care services over each 12-month period for all urban consumers, U.S. city average, as determined by the bureau of labor statistics of the federal department of labor.

SB665,26,14 2. On each January 1, beginning with January 1, 2020, the department shall adjust the maximum fees established under par. (a) by the percentage difference between the consumer price index for the 12-month period ending on December 31 of the preceding year and the consumer price index for the 12-month period ending on December 31 of the year before the preceding year.

SB665,26,18 (c) No less often than every 10 years, the department shall obtain health service negotiated price data from the sources specified in par. (a) 1., redetermine the average negotiated prices specified in par. (a) 1., and revise the maximum fees established under par. (a) based on that redetermined average.

SB665,26,20 (d) The department shall publish the fee schedule established under par. (a) on the department's Internet site.

SB665,26,25 (2) Liability of employer or insurer. (a) The liability of an employer or insurer for a health service included in the fee schedule established under sub. (1) is limited to the maximum fee allowed under the schedule for that health service as of the date on which the health service was provided or the health care provider's actual fee for the health service as of that date, whichever is less.

SB665,27,4 (b) A health care provider that provides health services to an injured employee under this chapter may not collect, or bring an action to collect, from the injured employee any charge that is in excess of the liability of the employer or insurer under this subsection.

SB665,27,7 (c) This subsection first applies to a health service provided to an injured employee on the date on which the notice under sub. (1) (a) is published in the Wisconsin Administrative Register.

SB665,27,9 (3) Records. Records related to the collection of any information under sub. (1) (a) 1. are not subject to the right of inspection and copying under s. 19.35 (1).

SB665,27,10 (4) Rules. The department shall promulgate rules to implement this section.

SB665,46 Section 46. 102.425 (2m) of the statutes is created to read:

SB665,27,13 102.425 (2m) Opiates and pain relief. (a) In this subsection, “opiate” has the meaning given in s. 961.01 (16).

SB665,27,18 (b) No practitioner may dispense more than a 7-day supply of an opiate to treat an injury for which an employer or insurer is liable under this chapter. Notwithstanding s. 102.16 (2m) (c), a supply greater than a 7-day supply shall be considered to be unnecessary treatment for purposes of s. 102.16 (2m) without the need for a written opinion under s. 102.16 (2m) (c).

SB665,47 Section 47. 102.427 of the statutes is created to read:

SB665,27,22 102.427 Electronic billing. Any health service provider that provides care to an injured employee under this chapter shall use an electronic billing system and be able to receive payments electronically.

SB665,48 Section 48. 102.44 (1) (ag) of the statutes is amended to read:

SB665,28,8 102.44 (1) (ag) Notwithstanding any other provision of this chapter, every employee who is receiving compensation under this chapter for permanent total disability or continuous temporary total disability more than 24 months after the date of injury resulting from an injury that occurred prior to January 1, 2003 2005, shall receive supplemental benefits that shall be payable by the employer or the employer's insurance carrier, or in the case of benefits payable to an employee under s. 102.66, shall be paid by the department out of the fund created under s. 102.65. Those supplemental benefits shall be paid only for weeks of disability occurring after January 1, 2005 2007, and shall continue during the period of such total disability subsequent to that date.

SB665,49 Section 49. 102.44 (1) (am) of the statutes is amended to read:

SB665,28,14 102.44 (1) (am) If the employee is receiving the maximum weekly benefits in effect at the time of the injury, the supplemental benefit for a week of disability occurring after March 2, 2016 the effective date of this paragraph .... [LRB inserts date], shall be an amount that, when added to the regular benefit established for the case, shall equal $669 $711.

SB665,50 Section 50. 102.44 (1) (b) of the statutes is amended to read:

SB665,28,21 102.44 (1) (b) If the employee is receiving a weekly benefit that is less than the maximum benefit that was in effect on the date of the injury, the supplemental benefit for a week of disability occurring after March 2, 2016 the effective date of this paragraph .... [LRB inserts date], shall be an amount sufficient to bring the total weekly benefits to the same proportion of $669 $711 as the employee's weekly benefit bears to the maximum in effect on the date of injury.

SB665,51 Section 51. 102.44 (2) of the statutes is amended to read:

SB665,29,3 102.44 (2) In case of permanent total disability, aggregate indemnity shall be weekly indemnity for the period that the employee may live. Total impairment for industrial use of both eyes, the loss of both arms at or near the shoulder, the loss of both legs at or near the hip, or the loss of one arm at the shoulder and one leg at the hip constitutes permanent total disability. This enumeration is not exclusive, but in other cases the department or the division shall find the facts.

SB665,52 Section 52. 102.44 (6) (b) of the statutes is amended to read:

SB665,29,10 102.44 (6) (b) If during the period set forth in s. 102.17 (4) the employment relationship is terminated by the employer at the time of the injury or by the employee because his or her physical or mental limitations prevent his or her continuing in such employment, or if during that period a wage loss of 15 percent or more occurs, the department or the division may reopen any award and make a redetermination taking into account loss of earning capacity.

SB665,53 Section 53. 102.525 of the statutes is created to read: