H. B. 2253

(By Delegates Linch, Claypole, Caputo,
Butcher and Tillis)

[Introduced February 27, 1997; referred to the
Committee on Finance then the Judiciary.]

A BILL to amend and reenact section three, article four, chapter

twenty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to workers' compensation; disability and death benefits; and returning the schedule of maximum disbursements to the language it contained prior to the amendments in the year one thousand nine hundred ninety-five.

Be it enacted by the Legislature of West Virginia:
That section three, article four, chapter twenty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-3. Schedule of maximum disbursements for medical, surgical, dental and hospital treatment;legislative approval; guidelines; preferred provider agreements; charges in excess of scheduled amounts not to be made; required disclosure of financial interest in sale or rental of medically related mechanical appliances or devices; promulgation of rules to enforce requirement; consequences of failure to disclose; contract by employer with hospital, physician, etc., prohibited; criminal penalties for violation; payments to certain providers prohibited; medical cost and care programs; payments; interlocutory orders.
(a) The commissioner shall establish and alter from time to time as he or she may determine to be appropriate a schedule of the maximum reasonable amounts to be paid to chiropractic physicians, medical physicians, osteopathic physicians, podiatrists, optometrists, vocational rehabilitation specialists, pharmacists, ophthalmologists and others practicing medicine and surgery, surgeons, hospitals or other persons, firms or corporations for the rendering of treatment or services to injured employees under this chapter. The commissioner also, on the first day of each regular session and also from time to time, as the commissioner may consider appropriate, shall submit the schedule, with any changes thereto, to the Legislature. The promulgation of the schedule is not subject to the legislative rule-making review procedures established in sections nine through sixteen, article three, chapter twenty-nine-a of this code.
The commissioner shall disburse and pay from the fund for personal injuries to employees as may be entitled thereto hereunder as follows:
(1) Any sums for medicines, medical, surgical, dental and hospital treatment or services, crutches, artificial limbs and such other and additional approved mechanical appliances and devices as may be reasonably required. The commissioner shall determine that which is reasonably required within the meaning of this section in accordance with the guidelines developed by the health care advisory panel pursuant to section three-b of this article: Provided, That nothing herein shall prevent the implementation of guidelines applicable to a particular type of treatment or service or to a particular type of injury before guidelines have been developed for other types of treatment or services or injuries: Provided, however, That any guidelines for utilization review which are developed in addition to the guidelines provided for in the section may be utilized by the commissioner until superseded by guidelines developed by the health care advisory panel pursuant to the section. Each health care provider who seeks to provide services or treatments which are not within any such guideline shall submit to the commissioner specific justification for the need for any additional services in the particular case and the commissioner shall have the justification reviewed by a health care professional before authorizing any additional services. The commissioner is authorized to enter into preferred provider agreements.
(2) Payment for any medicine, medical, surgical, dental and hospital treatment or services, crutches, artificial limbs and such other and additional approved mechanical appliances and devices authorized under this subsection may be made to the injured employee or to the person, firm or corporation who or which has rendered such treatment or furnished any of the items specified above, or who has advanced payment for same, as the commissioner may deem proper, but no such payments or disbursements shall be made or awarded by the commissioner unless duly verified statements on forms prescribed by the commissioner shall be filed with the commissioner within two years after the cessation of treatment or the delivery of appliances: Provided, That no payment hereunder shall be made unless a verified statement shows no charge for or with respect to the treatment or for or with respect to any of the items specified above has been or will be made against the injured employee or any other person, firm or corporation, and when an employee covered under the provisions of this chapter is injured in the course of and as a result of his or her employment and is accepted for medical, surgical, dental or hospital treatment or services or any mechanical appliances and devices care services or the provision of durable medical or other goods or other supplies, the person, firm or corporation rendering the treatment is hereby prohibited from making any charge or charges therefor or with respect thereto against the injured employee or any other person, firm or corporation which would result in a total charge for the treatment rendered in excess of the maximum amount set forth in the commissioner's schedule established as aforesaid.
(b) No chiropractic physician, medical physician, osteopathic physician, podiatrist or others practicing medicine or surgery (collectively and individually referred to hereinafter as "practitioner" or "practitioners") shall refer his or her patients to the practitioner himself or herself or to a supplier of mechanical appliances or devices owned, in whole or in part, by the practitioner, the practitioner's partnership or professional corporation, or a member of the practitioner's immediate family for the purchase or rental of any mechanical appliances or devices which the practitioner has prescribed or recommended to such patient except upon the terms prescribed by this section. Examples of mechanical appliances or devices are described as follows, but these examples are described for illustrative purposes only and are not intended to limit the range of items included by this phrase: Hearing aids; crutches; artificial limbs; oxygen concentrators; and TENS units. For the purposes of this subsection, the term "practitioner" shall include natural persons, partnerships and professional corporations.
(1) In order to avoid the bar of this subdivision, a practitioner shall first disclose to his or her patient the ownership interest of the practitioner, or of the practitioner's partnership or professional corporation, or of a member of the practitioner's immediate family in the entity which would sell or rent the mechanical appliance or device to the patient. If the practitioner would sell or rent the mechanical appliance or device as part of his or her practice and not as a separate legal entity, the practitioner shall disclose this fact to the patient. These disclosures must be delivered in writing to the patient.
(2) The commissioner may include in any rules promulgated to implement this section a requirement that the written notice disclose to the patient that he or she is free to use any lawful supplier of the mechanical appliance or device prescribed or recommended and that other suppliers may offer the mechanical appliance or device for less cost but of equal or better quality elsewhere and that the patient is encouraged to comparison shop. The commissioner's rule may also provide for a differing level of reimbursement to the supplier if the supplier is the practitioner himself or herself or if the supplier is owned, in whole or in part, by the practitioner, the practitioner's partnership or professional corporation or a member of the practitioner's immediate family as compared to the reimbursement of a supplier who is wholly independent from the practitioner.
(3) Failure by a practitioner to comply with the provisions of this subsection shall cause the practitioner to forfeit his, her, or its right to reimbursement for the services rendered by the practitioner to the patient and, if any services have previously been reimbursed, the commissioner shall either seek recovery of the funds by any lawful means or by deducting the amounts from future payments to the practitioner on account of services rendered to the same patient or to other claimants of the workers' compensation fund. In addition, failure by a practitioner to comply with the provisions of this subsection shall also result in the denial of payment to the supplier of the mechanical appliance or device if that supplier is one which is owned, in whole or in part, by the practitioner, the practitioner's partnership or professional corporation, or a member of the practitioner's immediate family. If the supplier has already been reimbursed for the cost of the pertinent mechanical appliance or device, then the commissioner shall either seek recovery of the funds by any lawful means or by deducting the amounts from future payments to the supplier on account of goods delivered to the same patient or to other claimants of the workers' compensation fund.
(c) No employer shall enter into any contracts with any hospital, its physicians, officers, agents or employees to render medical, dental or hospital service or to give medical or surgical attention therein to any employee for injury compensable within the purview of this chapter, and no employer shall permit or require any employee to contribute, directly or indirectly, to any fund for the payment of the medical, surgical, dental or hospital service within a hospital for any compensable injury. Any employer violating this section shall be liable in damages to the employer's employees as provided in section eight, article two of this chapter, and any employer or hospital or agent or employee thereof violating the provisions of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not less than one hundred dollars nor more than one thousand dollars or by imprisonment not exceeding one year, or both: Provided, That the foregoing provisions of this subsection shall not be deemed to prohibit an employer from participating in a preferred provider organization or program or a health maintenance organization or other medical cost containment relationship with the providers of medical, hospital or other health care: Provided, however, That nothing in this section shall be deemed to restrict the right of a claimant to select a health care provider for treatment of a compensable injury or disease.
(d) When an injury has been reported to the commissioner by the employer without protest, the commissioner may pay, or order an employer who or which made the election and who or which received the permission mentioned in section nine, article two of this chapter to pay, within the maximum amount provided by schedule established by the commissioner as aforesaid, bills for medical or hospital services without requiring the injured employee to file an application for benefits.
(e) The commissioner shall provide for the replacement of artificial limbs, crutches, hearing aids, eyeglasses and all other mechanical appliances provided in accordance with this section which later wear out, or which later need to be refitted because of the progression of the injury which caused the same to be originally furnished, or which are broken in the course of and as a result of the employee's employment. The fund or self- insured employer shall pay for these devices, when needed, notwithstanding any time limits provided by law.
(f) No payment shall be made to a health care provider who is suspended or terminated under the terms of section three-c of this article except as provided in subsection (c) of the section.
(g) The commissioner is authorized to engage in and contract for medical cost containment programs, medical case management programs and utilization review programs. Payments for these programs shall be made from the supersedeas reserve of the surplus fund. Any order issued pursuant to any such program shall be interlocutory in nature until an objecting party has exhausted all review processes provided for by the commissioner.
(h) Notwithstanding the foregoing, the commissioner may establish fee schedules, make payments and take other actions required or allowed pursuant to article twenty-nine-d, chapter sixteen of this code.

NOTE: The purpose of this bill is to return §23-4-3 to the language it contained prior to the amendment of this section by S. B. 250, enacted in 1995, that requires, among other things that a workers' compensation claimant change his health care provider to use a health maintenance organization if his employer has a managed health care program.

This section has been completely rewritten; therefore, strike-throughs and underscoring have been omitted.