75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 489
House Bill 2197
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Governor Theodore R.
Kulongoski for Department of Consumer and Business Services)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Eliminates certain statutory conflicts and redundancies.
Removes requirement that parties must submit medical services
dispute in workers' compensation claim to Director of Department
of Consumer and Business Services. Limits exemption from
insurance premiums and assessments for employer to three years
after preferred worker is hired.
A BILL FOR AN ACT
Relating to workers' compensation; amending ORS 656.245, 656.248
and 656.622; and repealing ORS 656.270.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 656.245 is amended to read:
656.245. (1)(a) For every compensable injury, the insurer or
the self-insured employer shall cause to be provided medical
services for conditions caused in material part by the injury for
such period as the nature of the injury or the process of the
recovery requires, subject to the limitations in ORS 656.225,
including such medical services as may be required after a
determination of permanent disability. In addition, for
consequential and combined conditions described in ORS 656.005
(7), the insurer or the self-insured employer shall cause to be
provided only those medical services directed to medical
conditions caused in major part by the injury.
(b) Compensable medical services shall include medical,
surgical, hospital, nursing, ambulances and other related
services, and drugs, medicine, crutches and prosthetic
appliances, braces and supports and where necessary, physical
restorative services. A pharmacist or dispensing physician shall
dispense generic drugs to the worker in accordance with ORS
689.515. The duty to provide such medical services continues for
the life of the worker.
(c) Notwithstanding any other provision of this chapter,
medical services after the worker's condition is medically
stationary are not compensable except for the following:
(A) Services provided to a worker who has been determined to be
permanently and totally disabled.
(B) Prescription medications.
(C) Services necessary to administer prescription medication or
monitor the administration of prescription medication.
(D) Prosthetic devices, braces and supports.
(E) Services necessary to monitor the status, replacement or
repair of prosthetic devices, braces and supports.
(F) Services provided pursuant to an accepted claim for
aggravation under ORS 656.273.
(G) Services provided pursuant to an order issued under ORS
656.278.
(H) Services that are necessary to diagnose the worker's
condition.
(I) Life-preserving modalities similar to insulin therapy,
dialysis and transfusions.
(J) With the approval of the insurer or self-insured employer,
palliative care that the worker's attending physician referred to
in ORS 656.005 (12)(b)(A) prescribes and that is necessary to
enable the worker to continue current employment or a vocational
training program. If the insurer or self-insured employer does
not approve, the attending physician or the worker may request
approval from the Director of the Department of Consumer and
Business Services for such treatment. The director may order a
medical review by a physician or panel of physicians pursuant to
ORS 656.327 (3) to aid in the review of such treatment. The
decision of the director is subject to review under ORS 656.704.
(K) With the approval of the director, curative care arising
from a generally recognized, nonexperimental advance in medical
science since the worker's claim was closed that is highly likely
to improve the worker's condition and that is otherwise justified
by the circumstances of the claim. The decision of the director
is subject to review under ORS 656.704.
(L) Curative care provided to a worker to stabilize a temporary
and acute waxing and waning of symptoms of the worker's
condition.
(d) When the medically stationary date in a disabling claim is
established by the insurer or self-insured employer and is not
based on the findings of the attending physician, the insurer or
self-insured employer is responsible for reimbursement to
affected medical service providers for otherwise compensable
services rendered until the insurer or self-insured employer
provides written notice to the attending physician of the
worker's medically stationary status.
(e) Except for services provided under a managed care contract,
out-of-pocket expense reimbursement to receive care from the
attending physician or nurse practitioner authorized to provide
compensable medical services under this section shall not exceed
the amount required to seek care from an appropriate nurse
practitioner or attending physician of the same specialty who is
in a medical community geographically closer to the worker's
home. For the purposes of this paragraph, all physicians and
nurse practitioners within a metropolitan area are considered to
be part of the same medical community.
(2)(a) The worker may choose an attending doctor, physician or
nurse practitioner within the State of Oregon. The worker may
choose the initial attending physician or nurse practitioner and
may subsequently change attending physician or nurse practitioner
two times without approval from the director. If the worker
thereafter selects another attending physician or nurse
practitioner, the insurer or self-insured employer may require
the director's approval of the selection. The decision of the
director is subject to review under ORS 656.704. The worker also
may choose an attending doctor or physician in another country or
in any state or territory or possession of the United States with
the prior approval of the insurer or self-insured employer.
(b) A medical service provider who is not a member of a managed
care organization is subject to the following provisions:
(A) A medical service provider who is not qualified to be an
attending physician may provide compensable medical service to an
injured worker for a period of 30 days from the date of
{ - injury or occupational disease - } { + the first visit on
the initial claim + } or for 12 visits, whichever first occurs,
without the authorization of an attending physician. Thereafter,
medical service provided to an injured worker without the written
authorization of an attending physician is not compensable.
(B) A medical service provider who is not an attending
physician cannot authorize the payment of temporary disability
compensation. However, an emergency room physician who is not
authorized to serve as an attending physician under ORS 656.005
(12)(c) may authorize temporary disability benefits for a maximum
of 14 days. A medical service provider qualified to serve as an
attending physician under ORS 656.005 (12)(b)(B) may authorize
the payment of temporary disability compensation for a period not
to exceed 30 days from the date of the first visit on the initial
claim.
(C) Except as otherwise provided in this chapter, only a
physician qualified to serve as an attending physician under ORS
656.005 (12)(b)(A) who is serving as the attending physician at
the time of claim closure may make findings regarding the
worker's impairment for the purpose of evaluating the worker's
disability.
(D) Notwithstanding subparagraphs (A) and (B) of this
paragraph, a nurse practitioner licensed under ORS 678.375 to
678.390:
(i) May provide compensable medical services for 90 days from
the date of the first visit on the claim;
(ii) May authorize the payment of temporary disability benefits
for a period not to exceed 60 days from the date of the first
visit on the initial claim; and
(iii) When an injured worker treating with a nurse practitioner
authorized to provide compensable services under this section
becomes medically stationary within the 90-day period in which
the nurse practitioner is authorized to treat the injured worker,
shall refer the injured worker to a physician qualified to be an
attending physician as defined in ORS 656.005 for the purpose of
making findings regarding the worker's impairment for the purpose
of evaluating the worker's disability. If a worker returns to the
nurse practitioner after initial claim closure for evaluation of
a possible worsening of the worker's condition, the nurse
practitioner shall refer the worker to an attending physician and
the insurer shall compensate the nurse practitioner for the
examination performed.
(3) Notwithstanding any other provision of this chapter, the
director, by rule, upon the advice of the committee created by
ORS 656.794 and upon the advice of the professional licensing
boards of practitioners affected by the rule, may exclude from
compensability any medical treatment the director finds to be
unscientific, unproven, outmoded or experimental. The decision of
the director is subject to review under ORS 656.704.
(4) Notwithstanding subsection (2)(a) of this section, when a
self-insured employer or the insurer of an employer contracts
with a managed care organization certified pursuant to ORS
656.260 for medical services required by this chapter to be
provided to injured workers:
(a) Those workers who are subject to the contract shall receive
medical services in the manner prescribed in the contract.
Workers subject to the contract include those who are receiving
medical treatment for an accepted compensable injury or
occupational disease, regardless of the date of injury or
medically stationary status, on or after the effective date of
the contract. If the managed care organization determines that
the change in provider would be medically detrimental to the
worker, the worker shall not become subject to the contract until
the worker is found to be medically stationary, the worker
changes physicians or nurse practitioners, or the managed care
organization determines that the change in provider is no longer
medically detrimental, whichever event first occurs. A worker
becomes subject to the contract upon the worker's receipt of
actual notice of the worker's enrollment in the managed care
organization, or upon the third day after the notice was sent by
regular mail by the insurer or self-insured employer, whichever
event first occurs. A worker shall not be subject to a contract
after it expires or terminates without renewal. A worker may
continue to treat with the attending physician or nurse
practitioner authorized to provide compensable medical services
under this section under an expired or terminated managed care
organization contract if the physician or nurse practitioner
agrees to comply with the rules, terms and conditions regarding
services performed under any subsequent managed care organization
contract to which the worker is subject. A worker shall not be
subject to a contract if the worker's primary residence is more
than 100 miles outside the managed care organization's certified
geographical area. Each such contract must comply with the
certification standards provided in ORS 656.260. However, a
worker may receive immediate emergency medical treatment that is
compensable from a medical service provider who is not a member
of the managed care organization. Insurers or self-insured
employers who contract with a managed care organization for
medical services shall give notice to the workers of eligible
medical service providers and such other information regarding
the contract and manner of receiving medical services as the
director may prescribe. Notwithstanding any provision of law or
rule to the contrary, a worker of a noncomplying employer is
considered to be subject to a contract between the State Accident
Insurance Fund Corporation as a processing agent or the assigned
claims agent and a managed care organization.
(b)(A) For initial or aggravation claims filed after June 7,
1995, the insurer or self-insured employer may require an injured
worker, on a case-by-case basis, immediately to receive medical
services from the managed care organization.
(B) If the insurer or self-insured employer gives notice that
the worker is required to receive treatment from the managed care
organization, the insurer or self-insured employer must guarantee
that any reasonable and necessary services so received, that are
not otherwise covered by health insurance, will be paid as
provided in ORS 656.248, even if the claim is denied, until the
worker receives actual notice of the denial or until three days
after the denial is mailed, whichever event first occurs. The
worker may elect to receive care from a primary care physician or
nurse practitioner authorized to provide compensable medical
services under this section who agrees to the conditions of ORS
656.260 (4)(g). However, guarantee of payment is not required by
the insurer or self-insured employer if this election is made.
(C) If the insurer or self-insured employer does not give
notice that the worker is required to receive treatment from the
managed care organization, the insurer or self-insured employer
is under no obligation to pay for services received by the worker
unless the claim is later accepted.
(D) If the claim is denied, the worker may receive medical
services after the date of denial from sources other than the
managed care organization until the denial is reversed.
Reasonable and necessary medical services received from sources
other than the managed care organization after the date of claim
denial must be paid as provided in ORS 656.248 by the insurer or
self-insured employer if the claim is finally determined to be
compensable.
(5) A nurse practitioner licensed under ORS 678.375 to 678.390
who is not a member of the managed care organization, is
authorized to provide the same level of services as a primary
care physician as established by ORS 656.260 (4), if at the time
the worker is enrolled in the managed care organization, the
nurse practitioner maintains the worker's medical records and
with whom the worker has a documented history of treatment, if
that nurse practitioner agrees to refer the worker to the managed
care organization for any specialized treatment, including
physical therapy, to be furnished by another provider that the
worker may require and if that nurse practitioner agrees to
comply with all the rules, terms and conditions regarding
services performed by the managed care organization.
(6) Subject to the provisions of ORS 656.704, if a claim for
medical services is disapproved, the injured worker, insurer or
self-insured employer may request administrative review by the
director pursuant to ORS 656.260 or 656.327.
SECTION 2. ORS 656.248 is amended to read:
656.248. (1) The Director of the Department of Consumer and
Business Services, in compliance with ORS 656.794 and ORS chapter
183, shall promulgate rules for developing and publishing fee
schedules for medical services provided under this chapter. These
schedules shall represent the reimbursement generally received
for the services provided. Where applicable, and to the extent
the director determines practicable, these fee schedules shall be
based upon any one or all of the following:
(a) The current procedural codes and relative value units of
the Department of Health and Human Services Medicare Fee
Schedules for all medical service provider services included
therein;
(b) The average rates of fee schedules of the Oregon health
insurance industry;
(c) A reasonable rate of markup for the sale of medical devices
or other medical services;
(d) A commonly used and accepted medical service fee schedule;
or
(e) The actual cost of providing medical services.
(2) Medical fees equal to or less than the fee schedules
published under this section shall be paid when the vendor
submits a billing for medical services. In no event shall that
portion of a medical fee be paid that exceeds the schedules.
(3) In no event shall a provider charge more than the provider
charges to the general public.
(4) If no fee has been established for a given service or
procedure the director may, in compliance with ORS 656.794 and
ORS chapter 183, promulgate a reasonable rate, which shall be the
same within any given area for all primary health care providers
to be paid for that service or procedure.
(5) At the request of the director and in the method and manner
prescribed by rule, all providers of health insurance, as defined
by ORS 731.162, shall cooperate and consult with the director in
providing information reasonably necessary and available to
develop the fee schedules prescribed under subsection (1) of this
section. A provider shall not be required to provide information
or data that the provider deems proprietary or confidential.
However, the information provided shall be considered proprietary
and shall not be released by the director. The director shall
not require such information from a health insurance provider
more than once per year and shall reimburse the provider's costs
for providing the required information.
(6) Notwithstanding subsection (1) or (2) of this section, such
rates or fees provided in subsections (1) and (2) of this section
shall be adequate to insure at all times to the injured workers
the standard of services and care intended by this chapter.
(7) The director shall update the schedule required by
subsection (1) of this section annually. As appropriate and
applicable, the update shall be based upon:
(a) A statistically valid survey by the director of medical
service fees or markups;
(b) That information provided to the director by any person or
state agency having access to medical service fee information;
(c) That information provided to the director pursuant to
subsection (5) of this section; or
(d) The annual percentage increase or decrease in the
physician's services component of the national Consumer Price
Index published by the Bureau of Labor Statistics of the United
States Department of Labor.
(8) The director is prohibited from adopting or administering
rules which treat manipulation, when performed by an osteopathic
physician, as anything other than a separate therapeutic
procedure which is paid in addition to other services or office
visits.
(9) The director may, by rule, establish a fee schedule for
reimbursement for specific hospital services based upon the
actual cost of providing the services.
(10) A medical service provider is not authorized to charge a
fee for preparing or submitting a medical report form required by
the director under this chapter.
(11) Notwithstanding any other provision of this section, fee
schedules for medical services and hospital services shall apply
to those services performed by a managed care organization
certified pursuant to ORS 656.260, unless otherwise provided in
the managed care contract.
(12) When a dispute exists between an injured worker, insurer
or self-insured employer and a medical service provider regarding
either the amount of the fee or nonpayment of bills for
compensable medical services, notwithstanding any other provision
of this chapter, the injured worker, insurer, self-insured
employer or medical service provider { - shall - }
{ + may + } request administrative review by the director. The
decision of the director is subject to review under ORS 656.704.
(13) The director may exclude hospitals defined in ORS 442.470
from imposition of a fee schedule authorized by this section upon
a determination of economic necessity.
SECTION 3. ORS 656.622 is amended to read:
656.622. (1) There is established a Reemployment Assistance
Program for the benefit of employers and workers and for the
purpose of:
(a) Giving employers and workers the benefits provided in this
section.
(b) Providing reimbursement of reasonable program
administration costs of self-insured employers and of insurers of
employers who participate in any program funded through the
Reemployment Assistance Program.
(2) In order to preclude or reduce nondisabling claims from
becoming disabling claims, preclude on-the-job injuries from
recurring, reduce disability by returning injured workers to work
sooner and to help injured workers remain employed, the Director
of the Department of Consumer and Business Services may provide
assistance to employers from the Reemployment Assistance Program
in such manner and amount as the director considers appropriate.
Assistance may include, but need not be limited to, modification
of work sites. For purposes of this subsection, work site
modification may include engineering design work and occupational
health consulting services. Factors to be considered by the
director in determining the extent of assistance must include but
need not be limited to { - the financial stability and solvency
of employers, - } the employer's record of returning injured
workers to the workplace and the cost-effectiveness of
modifications. Assistance may be provided in the form of grants
and matching contributions from employers for funds.
(3) In order to encourage the employment of individuals who
have incurred compensable injuries that result in disability
which may be a substantial obstacle to employment, the director
may provide, to eligible injured workers and to employers who
employ them, assistance from the Workers' Benefit Fund in such
manner and amount as the director considers appropriate.
(4)(a) In addition to such assistance as the director may
provide under this section, the director shall provide
reimbursement to self-insured employers or to the insurers of
employers who hire preferred workers for the claim costs incurred
for injuries to those workers during the first three years from
the date of hire, as follows:
(A) The claim costs of injuries incurred by those workers.
(B) Reasonable claims administration costs.
(b) A worker may not waive eligibility for preferred worker
status in the claim by agreement pursuant to ORS 656.236.
(5)(a) In addition to such assistance as the Director of the
Department of Consumer and Business Services may provide under
subsection (3) of this section, the director shall provide to
participating self-insured employers and the insurers of
participating employers reimbursement of reasonable program
administration costs.
(b) As used in this subsection, 'participating employer' or '
participating self-insured employer' means an employer
participating in any program funded through the Reemployment
Assistance Program.
(6) Notwithstanding any other provision of law, determinations
by the director regarding assistance pursuant to this section are
not subject to review by any court or other administrative body.
(7) The Reemployment Assistance Program shall be funded with
moneys collected as provided in ORS 656.506.
(8) Any assistance from the Reemployment Assistance Program
shall be to the extent of the moneys available in the Workers'
Benefit Fund, for the purpose of the program as determined by the
director.
(9) The director may make such rules as may be required to
establish, regulate, manage and disburse moneys in the Workers'
Benefit Fund in accordance with the intent of this section. Such
rules shall include, but are not limited to, the eligibility
criteria to receive assistance under this section and the
issuance of identity cards to preferred workers to assist
employers in the administration of the program.
(10) { + If claim cost reimbursement is requested under
subsection (4) of this section, + } claims costs incurred as a
result of an injury sustained by a preferred worker during the
three years after that worker is hired shall not be included in
any data used for ratemaking or individual employer rating or
dividend calculations by a guaranty contract insurer, a rating
organization licensed pursuant to ORS chapter 737, the State
Accident Insurance Fund Corporation or the Department of Consumer
and Business Services. Neither insurance premiums nor premium
assessments under this chapter are payable for preferred
workers { + during the first three years from the date of
hire + }.
(11) Any moneys from the Workers' Benefit Fund reimbursed to an
agency for costs incurred in reemploying injured state workers in
the manner described in ORS 659A.052 or in providing wage
subsidies for the reemployment of injured state workers shall be
outside the biennial expenditure limitation imposed on the agency
by the Legislative Assembly and shall be available for
expenditure by the agency as a continuous appropriation.
(12) As used in this section, 'preferred worker' means a worker
who, because of a permanent disability resulting from a
compensable injury or occupational disease, is unable to return
to the worker's regular employment, whether or not an order has
been issued awarding permanent disability.
SECTION 4. ORS 656.622, as amended by section 16, chapter 241,
Oregon Laws 2007, is amended to read:
656.622. (1) There is established a Reemployment Assistance
Program for the benefit of employers and workers and for the
purpose of:
(a) Giving employers and workers the benefits provided in this
section.
(b) Providing reimbursement of reasonable program
administration costs of self-insured employers and of insurers of
employers who participate in any program funded through the
Reemployment Assistance Program.
(2) In order to preclude or reduce nondisabling claims from
becoming disabling claims, preclude on-the-job injuries from
recurring, reduce disability by returning injured workers to work
sooner and to help injured workers remain employed, the Director
of the Department of Consumer and Business Services may provide
assistance to employers from the Reemployment Assistance Program
in such manner and amount as the director considers appropriate.
Assistance may include, but need not be limited to, modification
of work sites. For purposes of this subsection, work site
modification may include engineering design work and occupational
health consulting services. Factors to be considered by the
director in determining the extent of assistance must include but
need not be limited to { - the financial stability and solvency
of employers, - } the employer's record of returning injured
workers to the workplace and the cost-effectiveness of
modifications. Assistance may be provided in the form of grants
and matching contributions from employers for funds.
(3) In order to encourage the employment of individuals who
have incurred compensable injuries that result in disability
which may be a substantial obstacle to employment, the director
may provide, to eligible injured workers and to employers who
employ them, assistance from the Workers' Benefit Fund in such
manner and amount as the director considers appropriate.
(4)(a) In addition to such assistance as the director may
provide under this section, the director shall provide
reimbursement to self-insured employers or to the insurers of
employers who hire preferred workers for the claim costs incurred
for injuries to those workers during the first three years from
the date of hire, as follows:
(A) The claim costs of injuries incurred by those workers.
(B) Reasonable claims administration costs.
(b) A worker may not waive eligibility for preferred worker
status in the claim by agreement pursuant to ORS 656.236.
(5)(a) In addition to such assistance as the Director of the
Department of Consumer and Business Services may provide under
subsection (3) of this section, the director shall provide to
participating self-insured employers and the insurers of
participating employers reimbursement of reasonable program
administration costs.
(b) As used in this subsection, 'participating employer' or '
participating self-insured employer' means an employer
participating in any program funded through the Reemployment
Assistance Program.
(6) Notwithstanding any other provision of law, determinations
by the director regarding assistance pursuant to this section are
not subject to review by any court or other administrative body.
(7) The Reemployment Assistance Program shall be funded with
moneys collected as provided in ORS 656.506.
(8) Any assistance from the Reemployment Assistance Program
shall be to the extent of the moneys available in the Workers'
Benefit Fund, for the purpose of the program as determined by the
director.
(9) The director may make such rules as may be required to
establish, regulate, manage and disburse moneys in the Workers'
Benefit Fund in accordance with the intent of this section. Such
rules shall include, but are not limited to, the eligibility
criteria to receive assistance under this section and the
issuance of identity cards to preferred workers to assist
employers in the administration of the program.
(10) { + If claim cost reimbursement is requested under
subsection (4) of this section, + } claims costs incurred as a
result of an injury sustained by a preferred worker during the
three years after that worker is hired shall not be included in
any data used for ratemaking or individual employer rating or
dividend calculations by an insurer, a rating organization
licensed pursuant to ORS chapter 737, the State Accident
Insurance Fund Corporation or the Department of Consumer and
Business Services. Neither insurance premiums nor premium
assessments under this chapter are payable for preferred
workers { + during the first three years from the date of
hire + }.
(11) Any moneys from the Workers' Benefit Fund reimbursed to an
agency for costs incurred in reemploying injured state workers in
the manner described in ORS 659A.052 or in providing wage
subsidies for the reemployment of injured state workers shall be
outside the biennial expenditure limitation imposed on the agency
by the Legislative Assembly and shall be available for
expenditure by the agency as a continuous appropriation.
(12) As used in this section, 'preferred worker' means a worker
who, because of a permanent disability resulting from a
compensable injury or occupational disease, is unable to return
to the worker's regular employment, whether or not an order has
been issued awarding permanent disability.
SECTION 5. { + ORS 656.270 is repealed. + }
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