H. B. 3098
(By Delegate Guthrie)
[Introduced March 12, 2009; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §23-1-1a of the Code of West Virginia,
1931, as amended; and to amend and reenact §23-4-8 of said
code, all relating to requiring the Workers' Compensation
Board of Managers to conduct a yearly review of available
medical technologies, procedures and services; requiring the
revision of payment rates for approved medical technologies,
procedures and services to be the same as the prevailing rate
in the area; and providing for the payment of travel expenses
of workers' compensation claimants.
Be it enacted by the Legislature of West Virginia:
That §23-1-1a of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §23-4-8 of said code be amended
and reenacted, all to read as follows:
ARTICLE 1. GENERAL ADMINISTRATIVE PROVISIONS.
§23-1-1a. Workers' Compensation Board of Managers; appointment; composition; qualifications; terms; chairperson;
meetings and quorum; compensation and travel
expenses; powers and duties.
(a) On October 1, 2003, the compensation programs performance
council heretofore established in article three, chapter
twenty-one-a of this code is hereby abolished and there is hereby
created the "Workers' Compensation Board of Managers", which may
also be referred to as "the board of managers" or "the board".
(b) (1) The board shall consist of eleven voting members as
follows:
(A) The Governor or his or her designee;
(B) The Chief Executive Officer of the West Virginia
Investment Management Board; if required to attend more than one
meeting per month, he or she may send a designee to the additional
meetings;
(C) The Executive Director of the West Virginia Development
Office; if required to attend more than one meeting per month, he
or she may send a designee to the additional meetings; and
(D) Eight members appointed by the Governor with the advice
and consent of the Senate who meet the requirements and
qualifications prescribed in subsections (c) and (d) of this
section:
Provided, That the members serving on the compensation
programs performance council heretofore established in article
three, chapter twenty-one-a of this code on the effective date of the enactment of this section in 2003 are hereby appointed as
members of the board of managers subject to the provisions of
subdivision (1), subsection (c) of this section.
(2) Two members of the West Virginia Senate and two members of
the West Virginia House of Delegates shall serve as advisory
members of the board and are not voting members. The Governor
shall appoint the legislative members to the board. No more than
three of the legislative members may be of the same political
party.
(c) (1) The initial eight appointed voting members of the
board of managers shall consist of the members appointed under the
provisions of paragraph (D), subdivision (1), subsection (a) of
this section and the remaining members appointed pursuant to the
provisions of subsection (d) of this section. The term of each of
the initial appointed members shall expire on December 31, 2005.
(2) Effective January 1, 2006, if the commission continues,
eight members shall be appointed by the Governor with the advice
and consent of the Senate for terms that begin January 1, 2006, and
expire as follows:
Two members shall be appointed for a term ending June 30,
2007;
Three members shall be appointed for a term ending June 30,
2008; and
Three members shall be appointed for a term ending June 30, 2009.
(3) Except for appointments to fill vacancies, each subsequent
appointment shall be for a term ending June 30 of the fourth year
following the year the preceding term expired. In the event a
vacancy occurs, it shall be filled by appointment for the unexpired
term. A member whose term has expired shall continue in office
until a successor has been duly appointed and qualified. No member
of the board may be removed from office by the Governor except for
official misconduct, incompetency, neglect of duty or gross
immorality.
(4) No appointed member may be a candidate for or hold elected
office. Members may be reappointed for no more than two full
terms.
(d) Except for those initially appointed under the provisions
of paragraph (D), subdivision (1), subsection (b) of this section,
each of the appointed voting members of the board shall be
appointed based upon his or her demonstrated knowledge and
experience to effectively accomplish the purposes of this chapter.
They shall meet the minimum qualifications as follows:
(1) Each shall hold a baccalaureate degree from an accredited
college or university:
Provided, That no more than three of the
appointed voting members may serve without a baccalaureate degree
from an accredited college or university if the member has a
minimum of 15 years' experience in his or her field of expertise as required in subdivision (2) of this subsection;
(2) Each shall have a minimum of 10 years' experience in his
or her field of expertise. The Governor shall consider the
following guidelines when determining whether potential candidates
meet the qualifications of this subsection: Expertise in insurance
claims management; expertise in insurance underwriting; expertise
in the financial management of pensions or insurance plans;
expertise as a trustee of pension or trust funds of more than two
hundred beneficiaries or $300 million; expertise in Workers'
Compensation management; expertise in loss prevention and
rehabilitation; expertise in occupational medicine demonstrated by
licensure as a medical doctor in West Virginia and experience,
board certification or university affiliation; or expertise in
similar areas of endeavor;
(3) At least one shall be a certified public accountant with
financial management or pension or insurance audit expertise; at
least one shall be an attorney with financial management
experience; and one shall be an academician holding an advanced
degree from an accredited college or university in business,
finance, insurance or economics.
(e) Each member of the board shall have a fiduciary
responsibility to the commission and all workers' compensation
funds and shall assure the proper administration of the funds in a
fiscally responsible manner.
(f) The board shall elect one member to serve as chairperson.
The chairperson shall serve for a one-year term and may serve more
than one consecutive term. The board shall hold meetings at the
request of the chairperson or at the request of at least three of
the members of the board, but no less frequently than once every
three months. The chairperson shall determine the date and time of
each meeting. Six members of the board constitute a quorum for the
conduct of the business of the board. No vacancy in the membership
of the board shall impair the right of a quorum to exercise all the
rights and perform all the duties of the board. No action shall be
taken by the board except upon the affirmative vote of six members
of the board.
(g) Notwithstanding any provision of article seven, chapter
six of this code to the contrary, the board shall establish the
salary of the executive director. The board shall establish a set
of performance measurements to evaluate the performance of the
executive director in fulfilling his or her duties as prescribed in
this chapter and shall annually rate the executive director's
performance according to the established measurements and may
adjust his or her annual salary in accordance with that performance
rating.
(h) (1) Each voting appointed member of the board shall
receive compensation of not more than $350 per day for each day
during which he or she is required to and does attend a meeting of the board.
(2) Each voting appointed member of the board is entitled to
be reimbursed for actual and necessary expenses incurred for each
day or portion thereof engaged in the discharge of official duties
in a manner consistent with guidelines of the travel management
office of the Department of Administration.
(i) Each member of the board shall be provided appropriate
liability insurance, including, but not limited to, errors and
omissions coverage, without additional premium, by the State Board
of Risk and Insurance Management established pursuant to article
twelve, chapter twenty-nine of this code.
(j) The board of managers shall:
(1) Review and approve, reject or modify recommendations from
the executive director for the development of overall policy for
the administration of this chapter;
(2) In consultation with the executive director, propose
legislation and establish operating guidelines and policies
designed to ensure the effective administration and financial
viability of the Workers' Compensation system of West Virginia;
(3) Review and approve, reject or modify rules that are
proposed by the executive director for operation of the Workers'
Compensation system before the rules are filed with the Secretary
of State. The rules adopted by the board are not subject to
sections nine through sixteen, inclusive, article three, chapter twenty-nine-a of this code. The board shall follow the remaining
provisions of said chapter for giving notice to the public of its
actions and for holding hearings and receiving public comments on
the rules;
(4) In accordance with the laws, rules and regulations of West
Virginia and the United States government, establish and monitor
performance standards and measurements to ensure the timeliness and
accuracy of activities performed under the Workers' Compensation
laws and rules;
(5) Review and approve, reject or modify all classifications
of occupations or industries, premium rates and taxes,
administrative charges, rules and systems of rating, rating plans,
rate revisions, deficit management and deficit reduction
assessments and merit rating for employers covered by this chapter.
The executive director shall provide all information required for
the board's review;
(6) In conjunction with the executive director initiate,
oversee and review all independent financial and actuarial reviews
of the commission. The board shall employ an internal auditor for
the purpose of examining internal compliance with the provisions of
this chapter. The internal auditor shall be employed directly by
the board. The internal auditor shall submit copies of all reports
prepared by the internal auditor for the board to the Joint
Committee on Government and Finance within five days of submitting or making the report to the board, by filing the report with the
legislative librarian;
(7) Approve the allocation of sufficient administrative
resources and funding to efficiently operate the Workers'
Compensation system of West Virginia. To assure efficient
operation, the board shall direct the development of a plan for the
collections performed under section five-a, article two of this
chapter. The plan for collections shall maximize ratio of dollars
potentially realized by the collection proceeding to the dollars
invested in collection activity;
(8) Review and approve, reject or modify the budget prepared
by the executive director for the operation of the commission. The
budget shall include estimates of the costs and necessary
expenditures of the commission in the discharge of all duties
imposed by this chapter as well as the cost of providing offices,
furniture, equipment and supplies to all commission officers and
employees;
(9) In consultation with the executive director, approve the
designation of health care providers to make decisions for the
commission regarding appropriateness of medical services;
(10) Require the Workers' Compensation Commission to develop,
maintain and use an effective program of return-to-work services
for employers and workers;
(11) Require the Workers' Compensation Commission to develop, maintain and use thorough and efficient claims management
procedures and processes and fund management in accordance with the
generally accepted practices of the Workers' Compensation insurance
industry;
(12) Consider such other matters regarding the Workers'
Compensation system as the Governor, executive director or any
member of the board may desire;
(13) Review and approve, reject or modify standards
recommended by the executive director to be considered by the
commission in making decisions on all levels of disability awards.
The standards should be established as an effective means to make
prompt, appropriate decisions relating to medical care and methods
to assist employees to return to work as quickly as possible;
(14) Appoint, if necessary, a temporary executive director;
(15) Employ sufficient professional and clerical staff to
carry out the duties of the board. Employees of the board shall
serve at the will and pleasure of the board. The board's employees
are exempt from the salary schedule or pay plan adopted by the
Division of Personnel;
(16) Study the feasibility of, provide a plan for and provide
a proposal for a request for proposals from the private sector for
privatizing the Workers' Compensation system of this state,
including, but not limited to, a plan for privatizing the
administration of the Workers' Compensation system of this state and a plan for allowing employers to obtain private insurance to
insure their obligations under the Workers' Compensation system of
this state; study the effect, if any, of attorneys fees on the cost
of administering the Workers' Compensation system; study the extent
to which fraud or abuse on the part of employees, providers and
others have an effect on the cost of administering the Workers'
Compensation system; study the extent, if any, that the rates and
amounts of disability awards exceed the rates and amounts of such
awards in other states; study the comparative desirability of
alternative permanent disability administration in those other
states, and alternative deficit management strategies, including
nontraditional funding; study the feasibility of authorizing a plan
of multiple rate classifications by individual employers for
employers who have different or seasonally diverse job
classifications and duties:
Provided, That no such plan may be
implemented until adopted by the Legislature; and, in consultation
with the director of the Division of Personnel, study the
feasibility of establishing a work incentive program to place
unemployed qualified recipients of Workers' Compensation benefits
in state or local government employment. On or before January 1,
2006, the commission shall report the findings and conclusions of
each study, the plans and proposals, and any recommendations the
commission may have as a result of the study to the Joint Committee
on Government and Finance;
and
(17) Perform a yearly review of available medical
technologies, procedures and services and accordingly update the
approved listings of medical technologies, procedures and services.
The yearly review also includes revising, if necessary, the rates
for approved medical technologies, procedures and services to be
the same as the prevailing rates in the area for such technologies,
procedures and services; and
(17) (18) Complete all duties set forth in article two-c of
this chapter.
(k) The board of managers shall continue to exist pursuant to
this article until the commission is terminated pursuant to the
provisions of this chapter.
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-8. Physical examination of claimant.
The commission, successor to the commission, other private
carrier or self-insured employer, whichever is applicable, may,
after due notice to the employer and claimant, whenever in its
opinion it is necessary, order a claimant of compensation for a
personal injury other than occupational pneumoconiosis to appear
for examination before a medical examiner or examiners selected by
the commission, successor to the commission, other private carrier
or self-insured employer, whichever is applicable; and the claimant
and employer, respectively, each have the right to select a
physician of the claimant's or the employer's own choosing and at the claimant's or the employer's own expense to participate in the
examination. All examinations shall be performed in accordance
with the protocols and procedures established by the health care
advisory panel pursuant to section three-b of this article
:
Provided, That the physician may exceed these protocols when
additional evaluation is medically necessary. The claimant and
employer shall, respectively, be furnished with a copy of the
report of examination made by the medical examiner or examiners
selected by the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable.
The respective physicians selected by the claimant and employer
have the right to concur in any report made by the medical examiner
or examiners selected by the commission, or each may file with the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, a separate report,
which separate report shall be considered by the commission in
passing upon the claim. If the compensation claimed is for
occupational pneumoconiosis, the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, may, after due notice to the employer, and
whenever in the commission's opinion it is necessary, order a
claimant to appear for examination before the Occupational
Pneumoconiosis Board provided for in section eight-a of this
article. In any case the claimant is entitled to reimbursement for loss of wages, and to reasonable traveling and other expenses
necessarily incurred by him or her in obeying the order.
Such
traveling expenses include, at a minimum, reimbursement for each
mile traveled in a personal motor vehicle at a rate authorized by
the travel management rule of the Department of Administration:
Provided, That this mileage provision does not apply to trips of
ten miles or less: Provided, however, That trips of one hundred
fifty miles or more require preapproval and such preapproval will
not be unreasonably withheld.
Where the claimant is required to undergo a medical
examination or examinations by a physician or physicians selected
by the employer, as aforesaid or in connection with any claim which
is in litigation, the employer shall reimburse the claimant for
loss of wages, and reasonable traveling and other expenses in
connection with the examination or examinations, not to exceed the
expenses paid when a claimant is examined by a physician or
physicians selected by the commission, successor to the commission,
other private carrier or self-insured employer, whichever is
applicable.
Such traveling expenses includes, at a minimum,
reimbursement for each mile traveled in a personal motor vehicle at
a rate authorized by the travel management rule of the Department
of Administration: Provided, That this mileage provision will not
apply to trips ten miles or less: Provided, however, That trips of
one hundred fifty miles or more will require preapproval and such preapproval
will not be unreasonably withheld.
NOTE: The purpose of this bill is to require the Workers'
Compensation Board of Managers to conduct a yearly review of
available medical technologies, services and procedures and to
revise the payment rate for approved medical technologies, services
and procedures; and the payment of travel expenses of workers'
compensation claimants.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.