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.