Florida Senate - 2008 (Corrected Copy) SB 2548

By Senator Villalobos

5-03428A-08 20082548__

A bill to be entitled

An act relating to workers' compensation; amending s.

440.13, F.S.; requiring an insurance carrier to give an

employee more than one opportunity to change physicians

for medical treatment; redefining the term "independent

medical examination" to exclude evaluations by an expert

medical advisor; providing for all parties involved in a

workers' compensation case to have access to medical

information provided by an authorized health care

provider; revising the list of persons who may request

medical information concerning an injured employee;

requiring such release of medical information by an

authorized health care provider; revising requirements for

obtaining an independent medical examination; providing

that the medical opinion of a medical advisor appointed by

the judge of compensation claims or the Department of

Financial Services is not admissible in proceedings before

the judges of compensation claims; deleting the use of

expert medical advisors by the judges of compensation

claims; amending s. 440.15, F.S.; deleting a provision

limiting impairment income benefits for impairment ratings

for physical impairments; revising the method by which

permanent impairment benefits are paid; providing

requirements for entitlement to supplemental benefits;

requiring a carrier to pay supplemental benefits under

certain conditions; providing the method of calculating

supplemental benefits; authorizing the department to

define terms, forms, and procedures governing the method

of paying supplemental benefits for accidents occurring

within specified periods; providing an expiration date for

an employee's eligibility for certain benefits; providing

that temporary disability and medical benefits are not

subject to apportionment; authorizing an employee to

receive benefits for the total compensable permanent

impairment when his or her injury is aggravated or

accelerated by, or merged with, a preexisting condition;

revising the term "merger"; amending s. 440.25, F.S.,

relating to procedures for mediation and hearings;

conforming provisions to changes made by the act; amending

s. 440.32, F.S.; requiring that the cost of a frivolous

proceeding in compensation claims be assessed against the

party or the attorney; deleting a provision requiring that

a copy of the order assessing a penalty be forwarded to a

grievance committee; amending s. 440.34, F.S.; providing

circumstances under which the attorney's fees due to the

claimant's attorney shall equal the attorney's fees paid

to the employer's or carrier's attorney; amending s.

440.491, F.S.; providing that the time period for benefits

provided to an injured employee for additional education

or training is in addition to the time allowed for the

receipt of temporary disability benefits; amending s.

468.525, F.S.; requiring an employee leasing company to

provide written notice of obtaining workers' compensation

coverage to each of its employees; amending s. 468.529,

F.S.; requiring an employee leasing company to notify

certain persons and agencies regarding the initiation of a

contract with a client company in a format acceptable to

the Department of Financial Services; providing that a

contract or policy of insurance issued by a carrier may

not expire or be cancelled until a specified period after

a notice of cancellation has been sent to the employees,

the department, and the employee leasing company;

authorizing the Department of Business and Professional

Regulation to prescribe the content of the notice of

cancellation and the time, place, and manner in which the

notice is served; providing an effective date.

Be It Enacted by the Legislature of the State of Florida:

Section 1. Paragraph (j) of subsection (1), paragraph (f)

of subsection (2), paragraph (c) of subsection (4), paragraphs

(a) and (e) of subsection (5), paragraph (b) of subsection (8),

and subsections (9) through (17) of section 440.13, Florida

Statutes, are amended to read:

440.13 Medical services and supplies; penalty for

violations; limitations.--

(1) DEFINITIONS.--As used in this section, the term:

(j) "Independent medical examination" means an objective

evaluation of the injured employee's medical condition,

including, but not limited to, impairment or work status,

performed by a physician or an expert medical advisor at the

request of a party, a judge of compensation claims, or the agency

to assist in the resolution of a dispute arising under this

chapter.

(2) MEDICAL TREATMENT; DUTY OF EMPLOYER TO FURNISH.--

(f) Upon the written request of the employee, the carrier

shall give the employee the opportunity to for one change

physicians of physician during the course of treatment for any

one accident. Upon the granting of a change of physician, the

originally authorized physician in the same specialty as the

changed physician shall become deauthorized upon written

notification by the employer or carrier. The employee may select

the change of physician and may select any physician licensed to

practice in this state who is a certified health care provider

unless the medical care is being provided through a managed care

arrangement. If the medical care is being provided through a

managed care arrangement, the employee may select any physician

in the managed care network as the change of physician. The

carrier shall authorize the an alternative physician who shall

100

not be professionally affiliated with the previous physician

101

within 5 days after receipt of the request. If the carrier fails

102

to timely authorize the alternative physician provide a change of

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physician as requested by the employee, the employee may select

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the physician and such physician shall be deemed considered

105

authorized and remain authorized if the treatment being sought

106

provided is compensable and medically necessary.

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108

Failure of the carrier to timely comply with this subsection

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shall be a violation of this chapter and the carrier shall be

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subject to penalties as provided for in s. 440.525.

111

(4) NOTICE OF TREATMENT TO CARRIER; FILING WITH

112

DEPARTMENT.--

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compensation system that there shall be reasonable access to

115

medical information from an authorized health care provider to by

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all parties to facilitate the self-executing features of the law.

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An employee who reports an injury or illness alleged to be work-

118

related waives any physician-patient privilege with respect to

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any condition or complaint reasonably related to the condition

120

for which the employee claims compensation. Notwithstanding the

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limitations in s. 456.057 and subject to the limitations in s.

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381.004, upon the request of the employer, the carrier, an

123

authorized qualified rehabilitation provider, or the attorney for

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the employer or carrier, the medical records, reports, and

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information of an injured employee relevant to the particular

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injury or illness for which compensation is sought must be

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furnished to those persons and the medical condition of the

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injured employee must be discussed with those persons, if the

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records and the discussions are restricted to conditions relating

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to the workplace injury. Release of medical information by the

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authorized health care provider or other physician does not

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require the authorization of the injured employee. If medical

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records, reports, and information of an injured employee are

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sought from health care providers who are not subject to the

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jurisdiction of the state, the injured employee shall sign an

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authorization allowing for the employer or carrier to obtain the

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medical records, reports, or information. Any such discussions or

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release of information may be held before or after the filing of

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a claim or petition for benefits without the knowledge, consent,

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or presence of any other party or his or her agent or

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representative. An authorized A health care provider who

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willfully refuses to provide medical records or to discuss the

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medical condition of the injured employee, after a reasonable

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request is made for such information pursuant to this subsection,

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shall be subject by the department to one or more of the

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penalties set forth in paragraph (8)(b). The department may adopt

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rules to carry out this subsection.

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(5) INDEPENDENT MEDICAL EXAMINATIONS.--

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(a) In any dispute concerning overutilization, medical

150

benefits, compensability, or disability under this chapter, the

151

carrier or the employee may select an independent medical

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examiner. If the parties agree, the examiner may be a health care

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provider treating or providing other care to the employee. An

154

independent medical examiner may not render an opinion outside

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his or her area of expertise, as demonstrated by licensure and

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applicable practice parameters. The employer and employee shall

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be entitled to only one independent medical examination payable

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by the employer or carrier per accident and not one independent

159

medical examination per medical specialty. The party requesting

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and selecting the independent medical examination shall be

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responsible for all expenses associated with said examination,

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including, but not limited to, medically necessary diagnostic

163

testing performed and physician or medical care provider fees for

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the evaluation. The party selecting the independent medical

165

examination shall identify the choice of the independent medical

166

examiner to all other parties within 15 days after the date the

167

independent medical examination is to take place. Failure to

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timely provide such notification shall preclude the requesting

169

party from submitting the findings of such independent medical

170

examiner in a proceeding before a judge of compensation claims.

171

The independent medical examiner may not provide followup care if

172

such recommendation for care is found to be medically necessary.

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If the employee prevails in a medical dispute as determined in an

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order by a judge of compensation claims or if benefits are paid

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or treatment provided after the employee has obtained an

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independent medical examination based upon the examiner's

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findings, the costs of such examination shall be paid by the

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employer or carrier.

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(e) A No medical opinion other than the opinion of a

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medical advisor appointed by the judge of compensation claims or

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the department, an independent medical examiner, or an authorized

182

treating provider is not admissible in proceedings before the

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judges of compensation claims.

184

(8) PATTERN OR PRACTICE OF OVERUTILIZATION.--

185

(b) If the agency determines that a health care provider

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has engaged in a pattern or practice of overutilization or a

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violation of this chapter or rules adopted by the agency,

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including a pattern or practice of providing treatment in excess

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of the practice parameters or protocols of treatment, it may

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impose one or more of the following penalties:

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1. An order of the agency barring the provider from payment

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under this chapter;

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2. Deauthorization of care under review;

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3. Denial of payment for care rendered in the future;

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4. Decertification of a health care provider certified as

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an expert medical advisor under subsection (9) or of a

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rehabilitation provider certified under s. 440.49;

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5. An administrative fine assessed by the agency in an

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amount not to exceed $5,000 per instance of overutilization or

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violation; and

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6. Notification of and review by the appropriate licensing

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authority pursuant to s. 440.106(3).

203

(9) EXPERT MEDICAL ADVISORS.--

204

(a) The agency shall certify expert medical advisors in

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each specialty to assist the agency and the judges of

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compensation claims within the advisor's area of expertise as

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provided in this section. The agency shall, in a manner

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prescribed by rule, in certifying, recertifying, or decertifying

209

an expert medical advisor, consider the qualifications, training,

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impartiality, and commitment of the health care provider to the

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provision of quality medical care at a reasonable cost. As a

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prerequisite for certification or recertification, the agency

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shall require, at a minimum, that an expert medical advisor have

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specialized workers' compensation training or experience under

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the workers' compensation system of this state and board

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certification or board eligibility.

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(b) The agency shall contract with one or more entities

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that employ, contract with, or otherwise secure expert medical

219

advisors to provide peer review or expert medical consultation,

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opinions, and testimony to the agency or to a judge of

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compensation claims in connection with resolving disputes

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relating to reimbursement, differing opinions of health care

223

providers, and health care and physician services rendered under

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this chapter, including utilization issues. The agency shall by

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rule establish the qualifications of expert medical advisors,

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including training and experience in the workers' compensation

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system in the state and the expert medical advisor's knowledge of

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and commitment to the standards of care, practice parameters, and

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protocols established pursuant to this chapter. Expert medical

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advisors contracting with the agency shall, as a term of such

231

contract, agree to provide consultation or services in accordance

232

with the timetables set forth in this chapter and to abide by

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rules adopted by the agency, including, but not limited to, rules

234

pertaining to procedures for review of the services rendered by

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health care providers and preparation of reports and testimony or

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recommendations for submission to the agency or the judge of

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compensation claims.

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care providers, if two health care providers disagree on medical

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evidence supporting the employee's complaints or the need for

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additional medical treatment, or if two health care providers

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disagree that the employee is able to return to work, the agency

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may, and the judge of compensation claims shall, upon his or her

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own motion or within 15 days after receipt of a written request

245

by either the injured employee, the employer, or the carrier,

246

order the injured employee to be evaluated by an expert medical

247

advisor. The opinion of the expert medical advisor is presumed to

248

be correct unless there is clear and convincing evidence to the

249

contrary as determined by the judge of compensation claims. The

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expert medical advisor appointed to conduct the evaluation shall

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have free and complete access to the medical records of the

252

employee. An employee who fails to report to and cooperate with

253

such evaluation forfeits entitlement to compensation during the

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period of failure to report or cooperate.

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(d) The expert medical advisor must complete his or her

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evaluation and issue his or her report to the agency or to the

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judge of compensation claims within 15 days after receipt of all

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medical records. The expert medical advisor must furnish a copy

259

of the report to the carrier and to the employee.

260

(e) An expert medical advisor is not liable under any

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theory of recovery for evaluations performed under this section

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without a showing of fraud or malice. The protections of s.

263

766.101 apply to any officer, employee, or agent of the agency

264

and to any officer, employee, or agent of any entity with which

265

the agency has contracted under this subsection.

266

(f) If the agency or a judge of compensation claims orders

267

the services of a certified expert medical advisor to resolve a

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dispute under this section, the party requesting such examination

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must compensate the advisor for his or her time in accordance

270

with a schedule adopted by the agency. If the employee prevails

271

in a dispute as determined in an order by a judge of compensation

272

claims based upon the expert medical advisor's findings, the

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employer or carrier shall pay for the costs of such expert

274

medical advisor. If a judge of compensation claims, upon his or

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her motion, finds that an expert medical advisor is needed to

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resolve the dispute, the carrier must compensate the advisor for

277

his or her time in accordance with a schedule adopted by the

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agency. The agency may assess a penalty not to exceed $500

279

against any carrier that fails to timely compensate an advisor in

280

accordance with this section.

281

(9)(10) WITNESS FEES.--Any health care provider who gives a

282

deposition shall be allowed a witness fee. The amount charged by

283

the witness may not exceed $200 per hour. An expert witness who

284

has never provided direct professional services to a party but

285

has merely reviewed medical records and provided an expert

286

opinion or has provided only direct professional services that

287

were unrelated to the workers' compensation case may not be

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allowed a witness fee in excess of $200 per day.

289

(10)(11) AUDITS.--

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(a) The Agency for Health Care Administration may

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investigate health care providers to determine whether providers

292

are complying with this chapter and with rules adopted by the

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agency, whether the providers are engaging in overutilization,

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whether providers are engaging in improper billing practices, and

295

whether providers are adhering to practice parameters and

296

protocols established in accordance with this chapter. If the

297

agency finds that a health care provider has improperly billed,

298

overutilized, or failed to comply with agency rules or the

299

requirements of this chapter, including, but not limited to,

300

practice parameters and protocols established in accordance with

301

this chapter, it must notify the provider of its findings and may

302

determine that the health care provider may not receive payment

303

from the carrier or may impose penalties as set forth in

304

subsection (8) or other sections of this chapter. If the health

305

care provider has received payment from a carrier for services

306

that were improperly billed, that constitute overutilization, or

307

that were outside practice parameters or protocols established in

308

accordance with this chapter, it must return those payments to

309

the carrier. The agency may assess a penalty not to exceed $500

310

for each overpayment that is not refunded within 30 days after

311

notification of overpayment by the agency or carrier.

312

(b) The department shall monitor carriers as provided in

313

this chapter and the Office of Insurance Regulation shall audit

314

insurers and group self-insurance funds as provided in s.

315

624.3161, to determine if medical bills are paid in accordance

316

with this section and rules of the department and Financial

317

Services Commission, respectively. Any employer, if self-insured,

318

or carrier found by the department or Office of Insurance

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Regulation not to be within 90 percent compliance as to the

320

payment of medical bills after July 1, 1994, must be assessed a

321

fine not to exceed 1 percent of the prior year's assessment

322

levied against such entity under s. 440.51 for every quarter in

323

which the entity fails to attain 90-percent compliance. The

324

department shall fine or otherwise discipline an employer or

325

carrier, pursuant to this chapter or rules adopted by the

326

department, and the Office of Insurance Regulation shall fine or

327

otherwise discipline an insurer or group self-insurance fund

328

pursuant to the insurance code or rules adopted by the Financial

329

Services Commission, for each late payment of compensation that

330

is below the minimum 95-percent performance standard. Any carrier

331

that is found to be not in compliance in subsequent consecutive

332

quarters must implement a medical-bill review program approved by

333

the department or office, and an insurer or group self-insurance

334

fund is subject to disciplinary action by the Office of Insurance

335

Regulation.

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matters concerning reimbursement, to resolve any overutilization

338

dispute under subsection (7), and to decide any question

339

concerning overutilization under subsection (8), which question

340

or dispute arises after January 1, 1994.

341

(d) The following agency actions do not constitute agency

342

action subject to review under ss. 120.569 and 120.57 and do not

343

constitute actions subject to s. 120.56: referral by the entity

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responsible for utilization review; a decision by the agency to

345

refer a matter to a peer review committee; establishment by a

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health care provider or entity of procedures by which a peer

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review committee reviews the rendering of health care services;

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and the review proceedings, report, and recommendation of the

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peer review committee.

350

(11)(12) CREATION OF THREE-MEMBER PANEL; GUIDES OF MAXIMUM

351

REIMBURSEMENT ALLOWANCES.--

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(a) A three-member panel is created, consisting of the

353

Chief Financial Officer, or the Chief Financial Officer's

354

designee, and two members to be appointed by the Governor,

355

subject to confirmation by the Senate, one member who, on account

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of present or previous vocation, employment, or affiliation,

357

shall be classified as a representative of employers, the other

358

member who, on account of previous vocation, employment, or

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affiliation, shall be classified as a representative of

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employees. The panel shall determine statewide schedules of

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maximum reimbursement allowances for medically necessary

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treatment, care, and attendance provided by physicians,

363

hospitals, ambulatory surgical centers, work-hardening programs,

364

pain programs, and durable medical equipment. The maximum

365

reimbursement allowances for inpatient hospital care shall be

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based on a schedule of per diem rates, to be approved by the

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three-member panel no later than March 1, 1994, to be used in

368

conjunction with a precertification manual as determined by the

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department, including maximum hours in which an outpatient may

370

remain in observation status, which shall not exceed 23 hours.

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All compensable charges for hospital outpatient care shall be

372

reimbursed at 75 percent of usual and customary charges, except

373

as otherwise provided by this subsection. Annually, the three-

374

member panel shall adopt schedules of maximum reimbursement

375

allowances for physicians, hospital inpatient care, hospital

376

outpatient care, ambulatory surgical centers, work-hardening

377

programs, and pain programs. An individual physician, hospital,

378

ambulatory surgical center, pain program, or work-hardening

379

program shall be reimbursed either the agreed-upon contract price

380

or the maximum reimbursement allowance in the appropriate

381

schedule.

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(b) It is the intent of the Legislature to increase the

383

schedule of maximum reimbursement allowances for selected

384

physicians effective January 1, 2004, and to pay for the

385

increases through reductions in payments to hospitals. Revisions

386

developed pursuant to this subsection are limited to the

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following:

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1. Payments for outpatient physical, occupational, and

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speech therapy provided by hospitals shall be reduced to the

390

schedule of maximum reimbursement allowances for these services

391

which applies to nonhospital providers.

392

2. Payments for scheduled outpatient nonemergency

393

radiological and clinical laboratory services that are not

394

provided in conjunction with a surgical procedure shall be

395

reduced to the schedule of maximum reimbursement allowances for

396

these services which applies to nonhospital providers.

397

3. Outpatient reimbursement for scheduled surgeries shall

398

be reduced from 75 percent of charges to 60 percent of charges.

399

4. Maximum reimbursement for a physician licensed under

400

chapter 458 or chapter 459 shall be increased to 110 percent of

401

the reimbursement allowed by Medicare, using appropriate codes

402

and modifiers or the medical reimbursement level adopted by the

403

three-member panel as of January 1, 2003, whichever is greater.

404

5. Maximum reimbursement for surgical procedures shall be

405

increased to 140 percent of the reimbursement allowed by Medicare

406

or the medical reimbursement level adopted by the three-member

407

panel as of January 1, 2003, whichever is greater.

408

409

reimbursement amount for a prescription shall be the average

410

wholesale price plus $4.18 for the dispensing fee, except where

411

the carrier has contracted for a lower amount. Fees for

412

pharmaceuticals and pharmaceutical services shall be reimbursable

413

at the applicable fee schedule amount. Where the employer or

414

carrier has contracted for such services and the employee elects

415

to obtain them through a provider not a party to the contract,

416

the carrier shall reimburse at the schedule, negotiated, or

417

contract price, whichever is lower. No such contract shall rely

418

on a provider that is not reasonably accessible to the employee.

419

(d) Reimbursement for all fees and other charges for such

420

treatment, care, and attendance, including treatment, care, and

421

attendance provided by any hospital or other health care

422

provider, ambulatory surgical center, work-hardening program, or

423

pain program, must not exceed the amounts provided by the uniform

424

schedule of maximum reimbursement allowances as determined by the

425

panel or as otherwise provided in this section. This subsection

426

also applies to independent medical examinations performed by

427

health care providers under this chapter. In determining the

428

uniform schedule, the panel shall first approve the data which it

429

finds representative of prevailing charges in the state for

430

similar treatment, care, and attendance of injured persons. Each

431

health care provider, health care facility, ambulatory surgical

432

center, work-hardening program, or pain program receiving

433

workers' compensation payments shall maintain records verifying

434

their usual charges. In establishing the uniform schedule of

435

maximum reimbursement allowances, the panel must consider:

436

1. The levels of reimbursement for similar treatment, care,

437

and attendance made by other health care programs or third-party

438

providers;

439

2. The impact upon cost to employers for providing a level

440

of reimbursement for treatment, care, and attendance which will

441

ensure the availability of treatment, care, and attendance

442

required by injured workers;

443

3. The financial impact of the reimbursement allowances

444

upon health care providers and health care facilities, including

445

trauma centers as defined in s. 395.4001, and its effect upon

446

their ability to make available to injured workers such medically

447

necessary remedial treatment, care, and attendance. The uniform

448

schedule of maximum reimbursement allowances must be reasonable,

449

must promote health care cost containment and efficiency with

450

respect to the workers' compensation health care delivery system,

451

and must be sufficient to ensure availability of such medically

452

necessary remedial treatment, care, and attendance to injured

453

workers; and

454

4. The most recent average maximum allowable rate of

455

increase for hospitals determined by the Health Care Board under

456

chapter 408.

457

(e) In addition to establishing the uniform schedule of

458

maximum reimbursement allowances, the panel shall:

459

1. Take testimony, receive records, and collect data to

460

evaluate the adequacy of the workers' compensation fee schedule,

461

nationally recognized fee schedules and alternative methods of

462

reimbursement to certified health care providers and health care

463

facilities for inpatient and outpatient treatment and care.

464

2. Survey certified health care providers and health care

465

facilities to determine the availability and accessibility of

466

workers' compensation health care delivery systems for injured

467

workers.

468

3. Survey carriers to determine the estimated impact on

469

carrier costs and workers' compensation premium rates by

470

implementing changes to the carrier reimbursement schedule or

471

implementing alternative reimbursement methods.

472

4. Submit recommendations on or before January 1, 2003, and

473

biennially thereafter, to the President of the Senate and the

474

Speaker of the House of Representatives on methods to improve the

475

workers' compensation health care delivery system.

476

477

The agency and the department, as requested, shall provide data

478

to the panel, including but not limited to, utilization trends in

479

the workers' compensation health care delivery system. The agency

480

shall provide the panel with an annual report regarding the

481

resolution of medical reimbursement disputes and any actions

482

pursuant to s. 440.13(8). The department shall provide

483

administrative support and service to the panel to the extent

484

requested by the panel.

485

(12)(13) REMOVAL OF PHYSICIANS FROM LISTS OF THOSE

486

AUTHORIZED TO RENDER MEDICAL CARE.--The agency shall remove from

487

the list of physicians or facilities authorized to provide

488

remedial treatment, care, and attendance under this chapter the

489

name of any physician or facility found after reasonable

490

investigation to have:

491

(a) Engaged in professional or other misconduct or

492

incompetency in connection with medical services rendered under

493

this chapter;

494

(b) Exceeded the limits of his or her or its professional

495

competence in rendering medical care under this chapter, or to

496

have made materially false statements regarding his or her or its

497

qualifications in his or her application;

498

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employer or carrier, or failed to submit full and truthful

500

medical reports of all his or her or its findings to the employer

501

or carrier as required under this chapter;

502

(d) Solicited, or employed another to solicit for himself

503

or herself or itself or for another, professional treatment,

504

examination, or care of an injured employee in connection with

505

any claim under this chapter;

506

(e) Refused to appear before, or to answer upon request of,

507

the agency or any duly authorized officer of the state, any legal

508

question, or to produce any relevant book or paper concerning his

509

or her conduct under any authorization granted to him or her

510

under this chapter;

511

(f) Self-referred in violation of this chapter or other

512

laws of this state; or

513

(g) Engaged in a pattern of practice of overutilization or

514

a violation of this chapter or rules adopted by the agency,

515

including failure to adhere to practice parameters and protocols

516

established in accordance with this chapter.

517

(13)(14) PAYMENT OF MEDICAL FEES.--

518

(a) Except for emergency care treatment, fees for medical

519

services are payable only to a health care provider certified and

520

authorized to render remedial treatment, care, or attendance

521

under this chapter. Carriers shall pay, disallow, or deny payment

522

to health care providers in the manner and at times set forth in

523

this chapter. A health care provider may not collect or receive a

524

fee from an injured employee within this state, except as

525

otherwise provided by this chapter. Such providers have recourse

526

against the employer or carrier for payment for services rendered

527

in accordance with this chapter. Payment to health care providers

528

or physicians shall be subject to the medical fee schedule and

529

applicable practice parameters and protocols, regardless of

530

whether the health care provider or claimant is asserting that

531

the payment should be made.

532

(b) Fees charged for remedial treatment, care, and

533

attendance, except for independent medical examinations and

534

consensus independent medical examinations, may not exceed the

535

applicable fee schedules adopted under this chapter and

536

department rule. Notwithstanding any other provision in this

537

chapter, if a physician or health care provider specifically

538

agrees in writing to follow identified procedures aimed at

539

providing quality medical care to injured workers at reasonable

540

costs, deviations from established fee schedules shall be

541

permitted. Written agreements warranting deviations may include,

542

but are not limited to, the timely scheduling of appointments for

543

injured workers, participating in return-to-work programs with

544

injured workers' employers, expediting the reporting of

545

treatments provided to injured workers, and agreeing to

546

continuing education, utilization review, quality assurance,

547

precertification, and case management systems that are designed

548

to provide needed treatment for injured workers.

549

550

following overall maximum medical improvement from an injury

551

compensable under this chapter, the employee is obligated to pay

552

a copayment of $10 per visit for medical services. The copayment

553

shall not apply to emergency care provided to the employee.

554

(14)(15) PRACTICE PARAMETERS.--The practice parameters and

555

protocols mandated under this chapter shall be the practice

556

parameters and protocols adopted by the United States Agency for

557

Healthcare Research and Quality in effect on January 1, 2003.

558

(15)(16) STANDARDS OF CARE.--The following standards of

559

care shall be followed in providing medical care under this

560

chapter:

561

(a) Abnormal anatomical findings alone, in the absence of

562

objective relevant medical findings, shall not be an indicator of

563

injury or illness, a justification for the provision of remedial

564

medical care or the assignment of restrictions, or a foundation

565

for limitations.

566

(b) At all times during evaluation and treatment, the

567

provider shall act on the premise that returning to work is an

568

integral part of the treatment plan. The goal of removing all

569

restrictions and limitations as early as appropriate shall be

570

part of the treatment plan on a continuous basis. The assignment

571

of restrictions and limitations shall be reviewed with each

572

patient exam and upon receipt of new information, such as

573

progress reports from physical therapists and other providers.

574

Consideration shall be given to upgrading or removing the

575

restrictions and limitations with each patient exam, based upon

576

the presence or absence of objective relevant medical findings.

577

578

shall in all situations:

579

1. Utilize a high intensity, short duration treatment

580

approach that focuses on early activation and restoration of

581

function whenever possible.

582

2. Include reassessment of the treatment plans, regimes,

583

therapies, prescriptions, and functional limitations or

584

restrictions prescribed by the provider every 30 days.

585

3. Be focused on treatment of the individual employee's

586

specific clinical dysfunction or status and shall not be based

587

upon nondescript diagnostic labels.

588

589

All treatment shall be inherently scientifically logical, and the

590

evaluation or treatment procedure must match the documented

591

physiologic and clinical problem. Treatment shall match the type,

592

intensity, and duration of service required by the problem

593

identified.

594

(16)(17) Failure to comply with this section shall be

595

considered a violation of this chapter and is subject to

596

penalties as provided for in s. 440.525.

597

Section 2. Paragraph (c) of subsection (3) and subsection

598

(5) of section 440.15, Florida Statutes, are amended, present

599

paragraph (g) of subsection (3) is redesignated as paragraph (h),

600

and a new paragraph (g) is added to that subsection, to read:

601

440.15 Compensation for disability.--Compensation for

602

disability shall be paid to the employee, subject to the limits

603

provided in s. 440.12(2), as follows:

604

(3) PERMANENT IMPAIRMENT BENEFITS.--

605

606

impairment rating using the impairment schedule referred to in

607

paragraph (b). Impairment income benefits are paid biweekly at

608

the rate of 75 percent of the employee's average weekly temporary

609

total disability benefit not to exceed the maximum weekly benefit

610

under s. 440.12; provided, however, that such benefits shall be

611

reduced by 50 percent for each week in which the employee has

612

earned income equal to or in excess of the employee's average

613

weekly wage. An employee's entitlement to impairment income

614

benefits begins the day after the employee reaches maximum

615

medical improvement or the expiration of temporary benefits,

616

whichever occurs earlier, and continues until the earlier of:

617

1. The expiration of a period computed at the rate of 3

618

weeks for each percentage point of impairment; or

619

2. The death of the employee.

620

621

Impairment income benefits as defined by this subsection are

622

payable only for impairment ratings for physical impairments. If

623

objective medical findings can substantiate a permanent

624

psychiatric impairment resulting from the accident, permanent

625

impairment benefits shall be payable for permanent psychiatric

626

impairment in accordance with the Florida Impairment Rating

627

Guide, 1996 Edition are limited for the permanent psychiatric

628

impairment to 1-percent permanent impairment.

629

(g)1. All supplemental benefits must be paid in accordance

630

with this paragraph. An employee is entitled to supplemental

631

benefits as provided in this paragraph as of the expiration of

632

the impairment period if:

633

a. The employee has an impairment rating from the

634

compensable injury of 15 percent or more as determined pursuant

635

to this chapter;

636

b. The employee has not returned to work or has returned to

637

work earning less than 80 percent of the employee's average

638

weekly wage as a direct result of the employee's impairment; and

639

c. The employee has in good faith attempted to obtain

640

employment commensurate with the employee's ability to work.

641

2. If an employee is not entitled to supplemental benefits

642

at the time of payment of the final weekly impairment income

643

benefit because the employee is earning at least 80 percent of

644

the employee's average weekly wage, the employee may become

645

entitled to supplemental benefits at any time within 1 year after

646

the impairment income benefit period ends if:

647

a. The employee earns wages that are less than 80 percent

648

of the employee's average weekly wage for a period of at least 90

649

days;

650

b. The employee meets the other requirements of

651

subparagraph 1.; and

652

c. The employee's decrease in earnings is a direct result

653

of the employee's impairment from the compensable injury.

654

3. If an employee earns wages that are at least 80 percent

655

of the employee's average weekly wage for a period of at least 90

656

days during which the employee is receiving supplemental

657

benefits, the employee ceases to be entitled to supplemental

658

benefits for the filing period. Supplemental benefits that have

659

been terminated shall be reinstated when the employee satisfies

660

the conditions enumerated in subparagraph 2. and files the

661

statement required under subparagraph 4. Notwithstanding any

662

other provision, if an employee is not entitled to supplemental

663

benefits for 12 consecutive months, the employee ceases to be

664

entitled to any additional income benefits for the compensable

665

injury. If the employee is discharged within 12 months after

666

losing entitlement under this paragraph, benefits may be

667

reinstated if the employee was discharged at that time with the

668

intent to deprive the employee of supplemental benefits.

669

4. After the initial determination of supplemental

670

benefits, the employee must file a statement with the carrier

671

stating that the employee has earned less than 80 percent of the

672

employee's average weekly wage as a direct result of the

673

employee's impairment, stating the amount of wages that the

674

employee earned in the filing period, and stating that the

675

employee has in good faith sought employment commensurate with

676

the employee's ability to work. The statement must be filed

677

quarterly on a form and in the manner prescribed by the

678

department. The department may modify the filing period as

679

appropriate to an individual case. Failure to file a statement

680

relieves the carrier of liability for supplemental benefits for

681

the period during which a statement is not filed.

682

5. The carrier shall begin payment of supplemental benefits

683

no later than 7 days after the expiration date of the impairment

684

income benefit period and shall continue to timely pay those

685

benefits. The carrier may request a mediation conference for the

686

purpose of contesting the employee's entitlement to or the amount

687

of supplemental income benefits.

688

6. Supplemental benefits shall be calculated quarterly and

689

paid monthly. For purposes of calculating supplemental benefits,

690

80 percent of the employee's average weekly wage and the average

691

wages the employee has earned per week shall be compared

692

quarterly. For purposes of this paragraph, if the employee is

693

offered a bona fide position of employment that the employee is

694

capable of performing, given the physical condition of the

695

employee and the geographic accessibility of the position, the

696

employee's weekly wages are considered equivalent to the weekly

697

wages for the position offered to the employee.

698

7. Supplemental benefits are payable at the rate of 80

699

percent of the difference between 80 percent of the employee's

700

average weekly wage determined pursuant to s. 440.14 and the

701

weekly wages the employee has earned during the reporting period,

702

not to exceed the maximum weekly income benefit under s. 440.12.

703

8. The department may by rule define terms that are

704

necessary to administer this section and forms and procedures

705

governing the method of payment of supplemental benefits for

706

dates of accidents before January 1, 1994, and for dates of

707

accidents on or after January 1, 1994.

708

9. The employee's eligibility for temporary benefits,

709

impairment income benefits, and supplemental benefits terminates

710

on the expiration of 401 weeks after the date of injury.

711

(5) SUBSEQUENT INJURY.--

712

(a) The fact that an employee has suffered previous

713

disability, impairment, anomaly, or disease, or received

714

compensation therefor, shall not preclude her or him from

715

benefits, as specified in paragraph (b), for a subsequent

716

aggravation or acceleration of the preexisting condition or

717

preclude benefits for death resulting therefrom, except that no

718

benefits shall be payable if the employee, at the time of

719

entering into the employment of the employer by whom the benefits

720

would otherwise be payable, falsely represents herself or himself

721

in writing as not having previously been disabled or compensated

722

because of such previous disability, impairment, anomaly, or

723

disease and the employer detrimentally relies on the

724

misrepresentation. Compensation for temporary disability and

725

medical benefits is not subject to apportionment.

726

(b) If a compensable permanent impairment injury,

727

disability, or need for medical care, or any portion thereof, is

728

a result of aggravation or acceleration of a preexisting

729

condition, or is the result of merger with a preexisting

730

condition, or is the result of merger with a preexisting

731

impairment, an employee eligible to receive impairment benefits

732

under subsection(3) shall receive such benefits for the total

733

impairment found to result, excluding the degree of impairment

734

existing at the time of the subject accident or injury only the

735

disabilities and medical treatment associated with such

736

compensable injury shall be payable under this chapter, excluding

737

the degree of disability or medical conditions existing at the

738

time of the impairment rating or at the time of the accident,

739

regardless of whether the preexisting condition was disabling at

740

the time of the accident or at the time of the impairment rating

741

and without considering whether the preexisting condition would

742

be disabling without the compensable accident. The degree of

743

permanent impairment or disability attributable to the accident

744

or injury shall be compensated in accordance with this section,

745

apportioning out the preexisting condition based on the

746

anatomical impairment rating attributable to the preexisting

747

condition. Medical benefits shall be paid apportioning out the

748

percentage of the need for such care attributable to the

749

preexisting condition. As used in this paragraph, "merger" means

750

the combining of a preexisting permanent impairment or disability

751

with a subsequent compensable permanent impairment or disability

752

which, when the effects of both are considered together, result

753

in a permanent impairment or disability rating which is greater

754

than the sum of the two permanent impairment or disability

755

ratings when each impairment or disability is considered

756

individually.

757

Section 3. Paragraph (d) of subsection (4) of section

758

440.25, Florida Statutes, is amended to read:

759

440.25 Procedures for mediation and hearings.--

760

(4)

761

(d) The final hearing shall be held within 210 days after

762

receipt of the petition for benefits in the county where the

763

injury occurred, if the injury occurred in this state, unless

764

otherwise agreed to between the parties and authorized by the

765

judge of compensation claims in the county where the injury

766

occurred. However, the claimant may waive the timeframes within

767

this section for good cause shown. If the injury occurred outside

768

the state and is one for which compensation is payable under this

769

chapter, then the final hearing may be held in the county of the

770

employer's residence or place of business, or in any other county

771

of the state that will, in the discretion of the Deputy Chief

772

Judge, be the most convenient for a hearing. The final hearing

773

shall be conducted by a judge of compensation claims, who shall,

774

within 30 days after final hearing or closure of the hearing

775

record, unless otherwise agreed by the parties, enter a final

776

order on the merits of the disputed issues. The judge of

777

compensation claims may enter an abbreviated final order in cases

778

in which compensability is not disputed. Either party may request

779

separate findings of fact and conclusions of law. At the final

780

hearing, the claimant and employer may each present evidence with

781

respect to the claims presented by the petition for benefits and

782

may be represented by any attorney authorized in writing for such

783

purpose. When there is a conflict in the medical evidence

784

submitted at the hearing, the provisions of s. 440.13 shall

785

apply. A The report or testimony of the expert medical advisor

786

shall be admitted into evidence in a proceeding and all costs

787

incurred in connection with such examination and testimony may be

788

assessed as costs in the proceeding, subject to the provisions of

789

s. 440.13. No judge of compensation claims may not make a finding

790

of a degree of permanent impairment that is greater than the

791

greatest permanent impairment rating given the claimant by any

792

examining or treating physician, except upon stipulation of the

793

parties. Any benefit due but not raised at the final hearing

794

which was ripe, due, or owing at the time of the final hearing is

795

waived.

796

Section 4. Subsection (2) of section 440.32, Florida

797

Statutes, is amended to read:

798

440.32 Cost in proceedings brought without reasonable

799

ground.--

800

(2) If the judge of compensation claims or any court having

801

jurisdiction of proceedings in respect to any claims or defense

802

under this section determines that the proceedings were

803

maintained or continued frivolously, the cost of the proceedings,

804

including reasonable attorney's fees, shall be assessed against

805

the offending party or attorney. If a penalty is assessed under

806

this subsection, a copy of the order assessing the penalty must

807

be forwarded to the appropriate grievance committee acting under

808

the jurisdiction of the Supreme Court. Penalties, fees, and costs

809

awarded under this provision may not be recouped from the party.

810

Section 5. Subsection (3) of section 440.34, Florida

811

Statutes, is amended to read:

812

440.34 Attorney's fees; costs.--

813

(3) If any party should prevail in any proceedings before a

814

judge of compensation claims or court, there shall be taxed

815

against the nonprevailing party the reasonable costs of such

816

proceedings, not to include attorney's fees. A claimant shall be

817

responsible for the payment of her or his own attorney's fees,

818

except that a claimant shall be entitled to recover a reasonable

819

attorney's fee from a carrier or employer:

820

(a) Against whom she or he successfully asserts a petition

821

for medical benefits only, if the claimant has not filed or is

822

not entitled to file at such time a claim for disability,

823

permanent impairment, wage-loss, or death benefits, arising out

824

of the same accident;

825

(b) In any case in which the employer or carrier files a

826

response to petition denying benefits with the Office of the

827

Judges of Compensation Claims and the injured person has employed

828

an attorney in the successful prosecution of the petition;

829

830

that an accident occurred for which compensation benefits are

831

payable, and the claimant prevails on the issue of

832

compensability; or

833

(d) In cases where the claimant successfully prevails in

834

proceedings filed under s. 440.24 or s. 440.28.

835

836

If the guideline fee payable by the employer or carrier pursuant

837

to this subsection is less than the fees paid to the attorney or

838

law firm employed by the employer or carrier to defend against

839

the benefits secured, the fee limitations as set forth in this

840

section do not apply, and the fee due the claimant's attorney

841

shall be equal to the fee paid to the attorney for the employer

842

or carrier or, in the alternative, a reasonable fee as determined

843

by the Judge of Compensation Claims. Regardless of the date

844

benefits were initially requested, attorney's fees may shall not

845

attach under this subsection until 30 days after the date the

846

carrier or employer, if self-insured, receives the petition.

847

Section 6. Paragraph (b) of subsection (6) of section

848

440.491, Florida Statutes, is amended to read:

849

440.491 Reemployment of injured workers; rehabilitation.--

850

(6) TRAINING AND EDUCATION.--

851

(b) When an employee who has attained maximum medical

852

improvement is unable to earn at least 80 percent of the

853

compensation rate and requires training and education to obtain

854

suitable gainful employment, the employer or carrier shall pay

855

the employee additional training and education temporary total

856

compensation benefits while the employee receives such training

857

and education for a period not to exceed 26 weeks, which period

858

may be extended for an additional 26 weeks or less, if such

859

extended period is determined to be necessary and proper by a

860

judge of compensation claims. The benefits provided under this

861

paragraph shall not be in addition to the 104 weeks as specified

862

in s. 440.15(2). However, a carrier or employer is not precluded

863

from voluntarily paying additional temporary total disability

864

compensation beyond that period. If an employee requires

865

temporary residence at or near a facility or an institution

866

providing training and education which is located more than 50

867

miles away from the employee's customary residence, the

868

reasonable cost of board, lodging, or travel must be borne by the

869

department from the Workers' Compensation Administration Trust

870

Fund established by s. 440.50. An employee who refuses to accept

871

training and education that is recommended by the vocational

872

evaluator and considered necessary by the department will forfeit

873

any additional training and education benefits and any additional

874

payment for lost wages under this chapter. The department shall

875

adopt rules to implement this section, which shall include

876

requirements placed upon the carrier to notify the injured

877

employee of the availability of training and education benefits

878

as specified in this chapter. The department shall also include

879

information regarding the eligibility for training and education

880

benefits in informational materials specified in ss. 440.207 and

881

440.40.

882

Section 7. Paragraph (a) of subsection (3) of section

883

468.525, Florida Statutes, is amended to read:

884

468.525 License requirements.--

885

(3) Each employee leasing company licensed by the

886

department shall have a registered agent for service of process

887

in this state and at least one licensed controlling person. In

888

addition, each licensed employee leasing company shall comply

889

with the following requirements:

890

(a) The employment relationship with workers provided by

891

the employee leasing company to a client company shall be

892

established by written agreement between the leasing company and

893

the client, and written notice of that relationship shall be

894

given by the employee leasing company to each worker who is

895

assigned to perform services at the client company's worksite.

896

The employee leasing company shall also provide written notice to

897

each worker that the employee leasing company shall obtain

898

workers' compensation coverage for each worker and that such

899

coverage will not expire or be terminated until at least 30 days

900

have elapsed after a notice of cancellation has been sent to the

901

worker.

902

Section 8. Subsection (3) of section 468.529, Florida

903

Statutes, is amended to read:

904

468.529 Licensee's insurance; employment tax; benefit

905

plans.--

906

(3) A licensed employee leasing company shall within 30

907

days after initiation of an employee leasing company contract

908

with a client company or termination notify, in a format

909

acceptable to the Department of Financial Services, its workers'

910

compensation insurance carrier, the Division of Workers'

911

Compensation of the Department of Financial Services, and the

912

state agency providing unemployment tax collection services under

913

contract with the Agency for Workforce Innovation through an

914

interagency agreement pursuant to s. 443.1316 of both the

915

initiation or the termination of the employee leasing company's

916

relationship with the any client company. A contract or policy of

917

insurance issued by a carrier to an employee leasing company may

918

not expire or be cancelled until at least 30 days have elapsed

919

after a notice of cancellation has been sent to the employee, the

920

department, and the employee leasing company. The department may

921

by rule prescribe the content of the notice of cancellation and

922

specify the time, place, and manner in which the notice of

923

cancellation is to be served.

924

Section 9. This act shall take effect July 1, 2008.

CODING: Words stricken are deletions; words underlined are additions.