CODING: Words stricken are deletions; words underlined are additions.House Bill 0263
Florida House of Representatives - 1997 HB 263
By Representative Morse (by request)
1 A bill to be entitled
2 An act relating to workers' compensation;
3 amending s. 440.13, F.S., relating to the
4 provision of medical services and supplies
5 under the Workers' Compensation Law; revising
6 definitions; deleting certain limitations on
7 chiropractic treatment; deleting requirements
8 that a health care provider that renders
9 services under the Workers' Compensation Law be
10 certified by the Division of Workers'
11 Compensation of the Department of Labor and
12 Employment Security; deleting limitations on
13 the authority of a health care provider to
14 refer an employee to another health care
15 provider; deleting certain limitations on
16 reimbursement for specialty services; deleting
17 a requirement for a copayment for medical
18 services; amending s. 440.15, F.S.; increasing
19 the period during which an employee is eligible
20 for temporary disability benefits; revising the
21 criteria used to establish the schedule of
22 impairment benefits; increasing the rate of
23 payment for impairment benefits; deleting an
24 exemption for certain employers with respect to
25 an obligation that the employer rehire an
26 employee; amending ss. 440.191 and 440.192,
27 F.S.; providing that an employee is entitled to
28 be represented by an attorney before a judge of
29 compensation claims; providing that the carrier
30 is liable for attorney's fees and costs;
31 repealing s. 440.107(1) and (3), F.S., relating
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1 to stop-work orders issued by the division to
2 an employer; repealing s. 440.20(11), F.S.,
3 relating to lump-sum payments in exchange for
4 an employer's or carrier's release from
5 liability; repealing s. 440.25(4)(j), F.S.,
6 relating to expedited resolution of claims that
7 are under a specified amount; providing an
8 effective date.
9
10 Be It Enacted by the Legislature of the State of Florida:
11
12 Section 1. Subsection (1), paragraph (a) of subsection
13 (2), subsection (3), and paragraph (c) of subsection (14) of
14 section 440.13, Florida Statutes, 1996 Supplement, are amended
15 to read:
16 440.13 Medical services and supplies; penalty for
17 violations; limitations.--
18 (1) DEFINITIONS.--As used in this section, the term:
19 (a) "Alternate medical care" means a change in
20 treatment or health care provider.
21 (b) "Attendant care" means care rendered by trained
22 professional attendants which is beyond the scope of household
23 duties. Family members may provide nonprofessional attendant
24 care, but may not be compensated under this chapter for care
25 that falls within the scope of household duties and other
26 services normally and gratuitously provided by family members.
27 "Family member" means a spouse, father, mother, brother,
28 sister, child, grandchild, father-in-law, mother-in-law, aunt,
29 or uncle.
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1 (c) "Carrier" means, for purposes of this section,
2 insurance carrier, self-insurance fund or individually
3 self-insured employer, or assessable mutual insurer.
4 (d) "Catastrophic injury" means an injury as defined
5 in s. 440.02.
6 (e) "Certified health care provider" means a health
7 care provider who has been certified by the division or who
8 has entered an agreement with a licensed managed care
9 organization to provide treatment to injured workers under
10 this section. Certification of such health care provider must
11 include documentation that the health care provider has read
12 and is familiar with the portions of the statute, impairment
13 guides, and rules which govern the provision of remedial
14 treatment, care, and attendance.
15 (e)(f) "Compensable" means a determination by a
16 carrier or judge of compensation claims that a condition
17 suffered by an employee results from an injury arising out of
18 and in the course of employment.
19 (f)(g) "Emergency services and care" means services
20 and care as defined in s. 395.002(9).
21 (g)(h) "Health care facility" means any hospital
22 licensed under chapter 395 and any health care institution
23 licensed under chapter 400.
24 (h)(i) "Health care provider" means a physician or any
25 recognized practitioner who provides skilled services pursuant
26 to a prescription or under the supervision or direction of a
27 physician and who has been certified by the division as a
28 health care provider. The term "health care provider" includes
29 a health care facility.
30 (i)(j) "Independent medical examiner" means a
31 physician selected by either an employee or a carrier to
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1 render one or more independent medical examinations in
2 connection with a dispute arising under this chapter.
3 (j)(k) "Independent medical examination" means an
4 objective evaluation of the injured employee's medical
5 condition, including, but not limited to, impairment or work
6 status, performed by a physician or an expert medical advisor
7 at the request of a party, a judge of compensation claims, or
8 the division to assist in the resolution of a dispute arising
9 under this chapter.
10 (k)(l) "Instance of overutilization" means a specific
11 inappropriate service or level of service provided to an
12 injured employee.
13 (l)(m) "Medically necessary" means any medical service
14 or medical supply which is used to identify or treat an
15 illness or injury, is appropriate to the patient's diagnosis
16 and status of recovery, and is consistent with the location of
17 service, the level of care provided, and applicable practice
18 parameters. The service should be widely accepted among
19 practicing health care providers, based on scientific
20 criteria, and determined to be reasonably safe. The service
21 must not be of an experimental, investigative, or research
22 nature, except in those instances in which prior approval of
23 the Agency for Health Care Administration has been obtained.
24 The Agency for Health Care Administration shall adopt rules
25 providing for such approval on a case-by-case basis when the
26 service or supply is shown to have significant benefits to the
27 recovery and well-being of the patient.
28 (m)(n) "Medicine" means a drug prescribed by a an
29 authorized health care provider and includes only generic
30 drugs or single-source patented drugs for which there is no
31 generic equivalent, unless the authorized health care provider
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1 writes or states that the brand-name drug as defined in s.
2 465.025 is medically necessary, or is a drug appearing on the
3 schedule of drugs created pursuant to s. 465.025(6), or is
4 available at a cost lower than its generic equivalent.
5 (n)(o) "Palliative care" means noncurative medical
6 services that mitigate the conditions, effects, or pain of an
7 injury.
8 (o)(p) "Pattern or practice of overutilization" means
9 repetition of instances of overutilization within a specific
10 medical case or multiple cases by a single health care
11 provider.
12 (p)(q) "Peer review" means an evaluation by two or
13 more physicians licensed under the same authority and with the
14 same or similar specialty as the physician under review, of
15 the appropriateness, quality, and cost of health care and
16 health services provided to a patient, based on medically
17 accepted standards.
18 (q)(r) "Physician" or "doctor" means a medical doctor
19 or doctor of osteopathy licensed under chapter 458, a
20 physician licensed under chapter 458, an osteopath licensed
21 under chapter 459, a chiropractor licensed under chapter 460,
22 a podiatrist licensed under chapter 461, an optometrist
23 licensed under chapter 463, or a dentist licensed under
24 chapter 466, each of whom must be certified by the division as
25 a health care provider.
26 (r)(s) "Reimbursement dispute" means any disagreement
27 between a health care provider or health care facility and
28 carrier concerning payment for medical treatment.
29 (s)(t) "Utilization control" means a systematic
30 process of implementing measures that assure overall
31 management and cost containment of services delivered.
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1 (t)(u) "Utilization review" means the evaluation of
2 the appropriateness of both the level and the quality of
3 health care and health services provided to a patient,
4 including, but not limited to, evaluation of the
5 appropriateness of treatment, hospitalization, or office
6 visits based on medically accepted standards. Such evaluation
7 must be accomplished by means of a system that identifies the
8 utilization of medical services based on medically accepted
9 standards as established by medical consultants with
10 qualifications similar to those providing the care under
11 review, and that refers patterns and practices of
12 overutilization to the division.
13 (2) MEDICAL TREATMENT; DUTY OF EMPLOYER TO FURNISH.--
14 (a) Subject to the limitations specified elsewhere in
15 this chapter, the employer shall furnish to the employee such
16 medically necessary remedial treatment, care, and attendance
17 for such period as the nature of the injury or the process of
18 recovery may require, including medicines, medical supplies,
19 durable medical equipment, orthoses, prostheses, and other
20 medically necessary apparatus. Remedial treatment, care, and
21 attendance, including work-hardening programs or
22 pain-management programs accredited by the Commission on
23 Accreditation of Rehabilitation Facilities or Joint Commission
24 on the Accreditation of Health Organizations or
25 pain-management programs affiliated with medical schools,
26 shall be considered as covered treatment only when such care
27 is given based on a referral by a physician as defined in this
28 chapter. Each facility shall maintain outcome data, including
29 work status at discharges, total program charges, total number
30 of visits, and length of stay. The department shall utilize
31 such data and report to the President of the Senate and the
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1 Speaker of the House of Representatives regarding the efficacy
2 and cost-effectiveness of such program, no later than October
3 1, 1994. Medically necessary treatment, care, and attendance
4 does not include chiropractic services in excess of 18
5 treatments or rendered 8 weeks beyond the date of the initial
6 chiropractic treatment, whichever comes first, unless the
7 carrier authorizes additional treatment or the employee is
8 catastrophically injured.
9 (3) PROVIDER ELIGIBILITY; AUTHORIZATION.--
10 (a) As a condition to eligibility for payment under
11 this chapter, a health care provider who renders services must
12 be a certified health care provider and must receive
13 authorization from the carrier before providing treatment.
14 This paragraph does not apply to emergency care. The division
15 shall adopt rules to implement the certification of health
16 care providers. As a one-time prerequisite to obtaining
17 certification, the division shall require each physician to
18 demonstrate proof of completion of a minimum 5-hour course
19 that covers the subject areas of cost containment, utilization
20 control, ergonomics, and the practice parameters adopted by
21 the division governing the physician's field of practice. The
22 division shall coordinate with the Agency for Health Care
23 Administration, the Florida Medical Association, the Florida
24 Osteopathic Medical Association, the Florida Chiropractic
25 Association, the Florida Podiatric Medical Association, the
26 Florida Optometric Association, the Florida Dental
27 Association, and other health professional organizations and
28 their respective boards as deemed necessary by the Agency for
29 Health Care Administration in complying with this subsection.
30 No later than October 1, 1994, the division shall adopt rules
31
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1 regarding the criteria and procedures for approval of courses
2 and the filing of proof of completion by the physicians.
3 (a)(b) A health care provider who renders emergency
4 care must notify the carrier by the close of the third
5 business day after it has rendered such care. If the emergency
6 care results in admission of the employee to a health care
7 facility, the health care provider must notify the carrier by
8 telephone within 24 hours after initial treatment. Emergency
9 care is not compensable under this chapter unless the injury
10 requiring emergency care arose as a result of a work-related
11 accident. Pursuant to chapter 395, all licensed physicians and
12 health care providers in this state shall be required to make
13 their services available for emergency treatment of any
14 employee eligible for workers' compensation benefits. To
15 refuse to make such treatment available is cause for
16 revocation of a license.
17 (c) A health care provider may not refer the employee
18 to another health care provider, diagnostic facility, therapy
19 center, or other facility without prior authorization from the
20 carrier, except when emergency care is rendered. Any referral
21 must be to a health care provider that has been certified by
22 the division, unless the referral is for emergency treatment.
23 (d) A carrier must respond, by telephone or in
24 writing, to a request for authorization by the close of the
25 third business day after receipt of the request. A carrier who
26 fails to respond to a written request for authorization for
27 referral for medical treatment by the close of the third
28 business day after receipt of the request consents to the
29 medical necessity for such treatment. All such requests must
30 be made to the carrier. Notice to the carrier does not include
31 notice to the employer.
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1 (e) Carriers shall adopt procedures for receiving,
2 reviewing, documenting, and responding to requests for
3 authorization. Such procedures shall be for a health care
4 provider certified under this section.
5 (b)(f) By accepting payment under this chapter for
6 treatment rendered to an injured employee, a health care
7 provider consents to the jurisdiction of the division as set
8 forth in subsection (11) and to the submission of all records
9 and other information concerning such treatment to the
10 division in connection with a reimbursement dispute, audit, or
11 review as provided by this section. The health care provider
12 must further agree to comply with any decision of the division
13 rendered under this section.
14 (c)(g) The employee is not liable for payment for
15 medical treatment or services provided pursuant to this
16 section except as otherwise provided in this section.
17 (h) The provisions of s. 455.236 are applicable to
18 referrals among health care providers, as defined in
19 subsection (1), treating injured workers.
20 (i) Notwithstanding paragraph (d), a claim for
21 specialist consultations, surgical operations,
22 physiotherapeutic or occupational therapy procedures, X-ray
23 examinations, or special diagnostic laboratory tests that cost
24 more than $1,000 and other specialty services that the
25 division identifies by rule is not valid and reimbursable
26 unless the services have been expressly authorized by the
27 carrier, or unless the carrier has failed to respond within 10
28 days to a written request for authorization, or unless
29 emergency care is required. The insurer shall not refuse to
30 authorize such consultation or procedure unless the health
31 care provider or facility is not authorized or certified or
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1 unless an expert medical advisor has determined that the
2 consultation or procedure is not medically necessary or
3 otherwise compensable under this chapter. Authorization of a
4 treatment plan does not constitute express authorization for
5 purposes of this section, except to the extent the carrier
6 provides otherwise in its authorization procedures. This
7 paragraph does not limit the carrier's obligation to identify
8 and disallow overutilization or billing errors.
9 (d)(j) Notwithstanding anything in this chapter to the
10 contrary, a sick or injured employee shall be entitled, at all
11 times, to free, full, and absolute choice in the selection of
12 the pharmacy or pharmacist dispensing and filling
13 prescriptions for medicines required under this chapter. It is
14 expressly forbidden for the division, an employer, or a
15 carrier, or any agent or representative of the division, an
16 employer, or a carrier to select the pharmacy or pharmacist
17 which the sick or injured employee must use; condition
18 coverage or payment on the basis of the pharmacy or pharmacist
19 utilized; or to otherwise interfere in the selection by the
20 sick or injured employee of a pharmacy or pharmacist.
21 (14) PAYMENT OF MEDICAL FEES.--
22 (c) Notwithstanding any other provision of this
23 chapter, following overall maximum medical improvement from an
24 injury compensable under this chapter, the employee is
25 obligated to pay a copayment of $10 per visit for medical
26 services. The copayment shall not apply to emergency care
27 provided to the employee.
28 Section 2. Paragraph (a) of subsection (2), paragraph
29 (a) of subsection (3), paragraph (b) of subsection (4), and
30 subsection (6) of section 440.15, Florida Statutes, 1996
31 Supplement, are amended to read:
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1 440.15 Compensation for disability.--Compensation for
2 disability shall be paid to the employee, subject to the
3 limits provided in s. 440.12(2), as follows:
4 (2) TEMPORARY TOTAL DISABILITY.--
5 (a) In case of disability total in character but
6 temporary in quality, 66 2/3 percent of the average weekly
7 wages shall be paid to the employee during the continuance
8 thereof, not to exceed 182 104 weeks except as provided in
9 this subsection, s. 440.12(1), and s. 440.14(3). Once the
10 employee reaches the maximum number of weeks allowed, or the
11 employee reaches the date of maximum medical improvement,
12 whichever occurs earlier, temporary disability benefits shall
13 cease and the injured worker's permanent impairment shall be
14 determined.
15 (3) PERMANENT IMPAIRMENT AND WAGE-LOSS BENEFITS.--
16 (a) Impairment benefits.--
17 1. Once the employee has reached the date of maximum
18 medical improvement, impairment benefits are due and payable
19 within 20 days after the carrier has knowledge of the
20 impairment.
21 2. The three-member panel, in cooperation with the
22 division, shall establish and use a uniform permanent
23 impairment rating schedule. This schedule must be based on
24 medically or scientifically demonstrable findings as well as
25 the systems and criteria set forth in the American Medical
26 Association's Guides to the Evaluation of Permanent
27 Impairment; the Snellen Charts, published by American Medical
28 Association Committee for Eye Injuries; and the Minnesota
29 Department of Labor and Industry Disability Schedules. The
30 schedule should be based upon objective findings. The schedule
31 shall be more comprehensive than the AMA Guides to the
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1 Evaluation of Permanent Impairment and shall expand the areas
2 already addressed and address additional areas not currently
3 contained in the guides. On August 1, 1979, and pending the
4 adoption, by rule, of a permanent schedule, Guides to the
5 Evaluation of Permanent Impairment, copyright 1977, 1971,
6 1988, by the American Medical Association, shall be the
7 temporary schedule and shall be used for the purposes hereof.
8 For injuries after July 1, 1990, pending the adoption by
9 division rule of a uniform disability rating schedule, the
10 Minnesota Department of Labor and Industry Disability Schedule
11 shall be used unless that schedule does not address an injury.
12 In such case, the Guides to the Evaluation of Permanent
13 Impairment by the American Medical Association shall be used.
14 Determination of permanent impairment under this schedule must
15 be made by a physician licensed under chapter 458, a doctor of
16 osteopathy licensed under chapters 458 and 459, a chiropractor
17 licensed under chapter 460, a podiatrist licensed under
18 chapter 461, an optometrist licensed under chapter 463, or a
19 dentist licensed under chapter 466, as appropriate considering
20 the nature of the injury. No other persons are authorized to
21 render opinions regarding the existence of or the extent of
22 permanent impairment.
23 3. All impairment income benefits shall be based on an
24 impairment rating using the impairment schedule referred to in
25 subparagraph 2. Impairment income benefits are paid weekly at
26 the rate of 66 2/3 50 percent of the employee's average weekly
27 salary temporary total disability benefit not to exceed the
28 maximum weekly benefit under s. 440.12. An employee's
29 entitlement to impairment income benefits begins the day after
30 the employee reaches maximum medical improvement or the
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1 expiration of temporary benefits, whichever occurs earlier,
2 and continues until the earlier of:
3 a. The expiration of a period computed at 254 the rate
4 of 3 weeks for each percentage point of impairment; or
5 b. The death of the employee.
6 4. After the employee has been certified by a doctor
7 as having reached maximum medical improvement or 6 weeks
8 before the expiration of temporary benefits, whichever occurs
9 earlier, the certifying doctor shall evaluate the condition of
10 the employee and assign an impairment rating, using the
11 impairment schedule referred to in subparagraph 2.
12 Compensation is not payable for the mental, psychological, or
13 emotional injury arising out of depression from being out of
14 work because of the employee's accident. If the certification
15 and evaluation are performed by a doctor other than the
16 employee's treating doctor, the certification and evaluation
17 must be submitted to the treating doctor, and the treating
18 doctor must indicate agreement or disagreement with the
19 certification and evaluation, but the opinion of the second
20 doctor counts in the final decision of impairment. The
21 certifying doctor shall issue a written report to the
22 division, the employee, and the carrier certifying that
23 maximum medical improvement has been reached, stating the
24 impairment rating, and providing any other information
25 required by the division. If the employee has not been
26 certified as having reached maximum medical improvement before
27 the expiration of 182 102 weeks after the date temporary total
28 disability benefits begin to accrue, the carrier shall notify
29 the treating doctor of the requirements of this section.
30 5. The carrier shall pay the employee impairment
31 income benefits for a period based on the impairment rating.
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1 (4) TEMPORARY PARTIAL DISABILITY.--
2 (b) Such benefits shall be paid during the continuance
3 of such disability, not to exceed a period of 182 104 weeks,
4 as provided by this subsection and subsection (2). Once the
5 injured employee reaches the maximum number of weeks,
6 temporary disability benefits cease and the injured worker's
7 permanent impairment must be determined.
8 (6) OBLIGATION TO REHIRE.--If the employer has not in
9 good faith made available to the employee, within a 35-mile
10 100-mile radius of the employee's residence, work appropriate
11 to the employee's physical limitations within 30 days after
12 the carrier notifies the employer of maximum medical
13 improvement and the employee's physical limitations, the
14 employer shall pay to the division for deposit into the
15 Workers' Compensation Administration Trust Fund a fine of $250
16 for every $5,000 of the employer's workers' compensation
17 premium or payroll, not to exceed $10,000 $2,000 per
18 violation, depending on business size and finances, as the
19 division requires by rule. The employer is not subject to this
20 subsection if the employee is receiving permanent total
21 disability benefits or if the employer has 50 or fewer
22 employees.
23 Section 3. Paragraph (d) of subsection (2) of section
24 440.191, Florida Statutes, is amended to read:
25 440.191 Employee Assistance and Ombudsman Office.--
26 (2)
27 (d) The Employee Assistance and Ombudsman Office may
28 assign an ombudsman to assist the employee in resolving the
29 dispute. If the dispute is not resolved within 30 days after
30 the employee contacts the office, the ombudsman shall, at the
31 employee's request, assist the employee in drafting a petition
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1 for benefits and explain the procedures for filing petitions.
2 The employee is entitled to be represented by an attorney and
3 the employer or carrier is liable for attorney's fees and
4 costs. The Employee Assistance and Ombudsman Office may not
5 represent employees before the judges of compensation claims.
6 An employer or carrier may not pay any attorneys' fees on
7 behalf of the employee for services rendered or costs incurred
8 in connection with this section, unless expressly authorized
9 elsewhere in this chapter.
10 Section 4. Subsection (6) of section 440.192, Florida
11 Statutes, is amended to read:
12 440.192 Procedure for resolving benefit disputes.--
13 (6) If the claimant is not represented by counsel, the
14 Office of the Judges of Compensation Claims may request the
15 Employee Assistance and Ombudsman Office to assist the
16 claimant in filing a petition that meets the requirements of
17 this section. If the claimant is represented by counsel, the
18 employer or carrier must pay the attorney's fees.
19 Section 5. Subsections (1) and (3) of section 440.107,
20 Florida Statutes, are repealed.
21 Section 6. Subsection (11) of section 440.20, Florida
22 Statutes, is repealed.
23 Section 7. Paragraph (j) of subsection (4) of section
24 440.25, Florida Statutes, is repealed.
25 Section 8. This act shall take effect upon becoming a
26 law.
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1 *****************************************
2 HOUSE SUMMARY
3
Amends the Workers' Compensation Law. Revises definitions
4 and requirements relating to the provision of medical
services and supplies. Deletes requirement that health
5 care providers under the act be certified. Removes
limitations on health care provider referrals. Deletes
6 limitations on reimbursement for specialty services and a
requirement for a copayment for medical services.
7 Increases eligibility period for temporary disability
benefits. Revises criteria for establishing impairment
8 benefits. Increases the rate of payment for impairment
benefits. Deletes an exemption for certain employers
9 relating to an obligation to rehire an employee. Provides
for representation by an attorney before a judge of
10 compensation claims. Provides carrier liability for
attorney's fees and costs. Repeals several statutes
11 relating to stop-work orders, lump-sum payments, and
expedited resolution of claims under a specified amount.
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