Senate File 365 - Introduced SENATE FILE 365 BY BOULTON A BILL FOR An Act relating to the choice of doctor to treat injured 1 employees under workers compensation laws and including 2 effective date and applicability provisions. 3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 4 TLSB 2201XS (2) 90 je/rn
S.F. 365 Section 1. Section 85.27, subsection 4, Code 2023, is 1 amended to read as follows: 2 4. a. (1) For purposes of this section , the employer is 3 obliged to furnish reasonable services and supplies to treat an 4 injured employee, and has the right to choose the care unless 5 the employee has predesignated a physician as provided in 6 paragraph b . If the employer chooses the care, the employer 7 shall hold the employee harmless for the cost of care until the 8 employer notifies the employee that the employer is no longer 9 authorizing all or any part of the care and the reason for 10 the change in authorization. An employer is not liable for 11 the cost of care that the employer arranges in response to a 12 sudden emergency if the employees condition, for which care 13 was arranged, is not related to the employment. The treatment 14 must be offered promptly and be reasonably suited to treat the 15 injury without undue inconvenience to the employee. 16 (2) If the employee has reason to be dissatisfied with the 17 care offered, the employee should communicate the basis of 18 such dissatisfaction to the employer, in writing if requested, 19 following which the employer and the employee may agree to 20 alternate care reasonably suited to treat the injury. If the 21 employer and employee cannot agree on such alternate care, the 22 commissioner may, upon application and reasonable proofs proof 23 of the necessity therefor, allow and order other care. In an 24 emergency, the employee may choose the employees care at the 25 employers expense, provided the employer or the employers 26 agent cannot be reached immediately. An application made under 27 this subsection shall be considered an original proceeding 28 for purposes of commencement and contested case proceedings 29 under section 85.26 . The hearing shall be conducted pursuant 30 to chapter 17A . Before a hearing is scheduled, the parties 31 may choose a telephone hearing or an in-person hearing. A 32 request for an in-person hearing shall be approved unless the 33 in-person hearing would be impractical because of the distance 34 between the parties to the hearing. The workers compensation 35 -1- LSB 2201XS (2) 90 je/rn 1/ 7
S.F. 365 commissioner shall issue a decision within ten working days of 1 receipt of an application for alternate care made pursuant to a 2 telephone hearing or within fourteen working days of receipt of 3 an application for alternate care made pursuant to an in-person 4 hearing. 5 (3) The employer shall notify an injured employee of the 6 employees ability to contest the employers choice of care 7 pursuant to this subsection paragraph a . 8 b. (1) An injured employee has the right to choose care, 9 unless care needs to be provided at the job site in response to 10 a life-threatening emergency, if the employee has predesignated 11 a physician who is a primary care provider, who has previously 12 provided medical treatment to the employee and has retained 13 the employees medical records, to provide treatment for the 14 injury. Upon hire and periodically during employment, an 15 employer shall provide written notice to all employees who have 16 not yet predesignated a physician, of their right under this 17 paragraph b to predesignate such a physician for treatment of 18 an injury, in a manner prescribed by the workers compensation 19 commissioner by rule. The employer or the employers insurer 20 shall not coerce or otherwise attempt to influence an injured 21 employees choice of a physician to provide care. An employee 22 shall, as soon as practicable, notify the employer of an 23 injury, and upon receiving such notice of an injury from an 24 employee, the employer shall again provide written notice to 25 that employee of the employees right under this paragraph 26 b in a manner prescribed by the workers compensation 27 commissioner by rule. If an employer fails to notify an 28 employee of the employees right to choose a physician as 29 provided in this paragraph b , the employee has the right to 30 choose any physician to provide treatment for the injury and 31 the treatment shall be considered care authorized under this 32 section. 33 (2) For the purposes of this paragraph b , physician 34 includes an individual physician, a group of physicians, or 35 -2- LSB 2201XS (2) 90 je/rn 2/ 7
S.F. 365 a clinic. For the purposes of this paragraph b , primary 1 care provider means an employees personal physician licensed 2 to practice medicine and surgery or osteopathic medicine and 3 surgery in this state or in another state who provides primary 4 care and is a family or general practitioner, a pediatrician, 5 an internist, an obstetrician, or a gynecologist. A physician 6 who practices in another state shall not be predesignated by an 7 employee unless the physicians office is located within sixty 8 miles of where the employee is employed or was injured unless 9 the workers compensation commissioner allows otherwise. A 10 physician chosen by an injured employee to provide treatment 11 is authorized to arrange for any consultation, surgical 12 consultation, referral, emergency care, or other specialized 13 medical services as the physician deems necessary to treat the 14 injury. The employer shall pay for all such care, unless the 15 workers compensation commissioner determines otherwise. 16 (3) If the employer has reason to be dissatisfied with the 17 care chosen by the employee, the employer should communicate 18 the basis of such dissatisfaction to the employee, in writing 19 if requested, following which the employee and the employer may 20 agree to alternate care reasonably suited to treat the injury. 21 If the employee and employer cannot agree on such alternate 22 care, the commissioner may, upon application and reasonable 23 proof of the necessity therefor, allow and order other care. 24 c. An application made to the commissioner under paragraph 25 a or b shall be considered an original proceeding for 26 purposes of commencement and contested case proceedings under 27 section 85.26. The hearing shall be conducted pursuant to 28 chapter 17A. Before a hearing is scheduled, the parties may 29 choose a telephone hearing, an audio-video conference hearing, 30 or an in-person hearing. A request for an in-person hearing 31 shall be approved unless the in-person hearing would be 32 impractical because of the distance between the parties to the 33 hearing. The workers compensation commissioner shall issue a 34 decision within ten working days of receipt of an application 35 -3- LSB 2201XS (2) 90 je/rn 3/ 7
S.F. 365 for alternate care if a telephone hearing or audio-video 1 conference hearing is held or within fourteen working days of 2 receipt of an application for alternate care if an in-person 3 hearing is held. 4 Sec. 2. Section 85.39, Code 2023, is amended to read as 5 follows: 6 85.39 Examination of injured employees. 7 1. a. After an injury, the employee, if requested by the 8 employer, shall submit for examination at some reasonable 9 time and place and as often as reasonably requested, to a 10 physician or physicians authorized to practice under the laws 11 of this state or another state, without cost to the employee; 12 but if the employee requests, the employee, at the employees 13 own cost, is entitled to have a physician or physicians 14 of the employees own selection present to participate in 15 the examination. If an employee is required to leave work 16 for which the employee is being paid wages to attend the 17 requested examination, the employee shall be compensated at 18 the employees regular rate for the time the employee is 19 required to leave work, and the employee shall be furnished 20 transportation to and from the place of examination, or the 21 employer may elect to pay the employee the reasonable cost of 22 the transportation. The refusal of the employee to submit 23 to the examination shall forfeit the employees right to any 24 compensation for the period of the refusal. Compensation shall 25 not be payable for the period of refusal. 26 2. b. If an evaluation of permanent disability has been 27 made by a physician retained by the employer and the employee 28 believes this evaluation to be too low, the employee shall, 29 upon application to the commissioner and upon delivery of a 30 copy of the application to the employer and its insurance 31 carrier, be reimbursed by the employer the reasonable fee for 32 a subsequent examination by a physician of the employees 33 own choice, and reasonably necessary transportation expenses 34 incurred for the examination. The physician chosen by the 35 -4- LSB 2201XS (2) 90 je/rn 4/ 7
S.F. 365 employee has the right to confer with and obtain from the 1 employer-retained physician sufficient history of the injury 2 to make a proper examination. An employer is only liable to 3 reimburse an employee for the cost of an examination conducted 4 pursuant to this subsection paragraph b if the injury for 5 which the employee is being examined is determined to be 6 compensable under this chapter or chapter 85A or 85B . An 7 employer is not liable for the cost of such an examination 8 if the injury for which the employee is being examined is 9 determined not to be a compensable injury. A determination of 10 the reasonableness of a fee for an examination made pursuant to 11 this subsection paragraph b , shall be based on the typical fee 12 charged by a medical provider to perform an impairment rating 13 in the local area where the examination is conducted. 14 2. If the employee has chosen a physician to provide care 15 as provided in section 85.27, subsection 4, paragraph b , when 16 it is medically indicated that no significant improvement from 17 an injury is anticipated, the employee may obtain a medical 18 opinion from the employees physician, at the employers 19 expense, regarding the extent of the employees permanent 20 disability. If the employee obtains such an evaluation and the 21 employer believes this evaluation of permanent disability to be 22 too high, the employer may arrange for a medical examination of 23 the injured employee by a physician of the employers choice 24 for the purpose of obtaining a medical opinion regarding the 25 extent of the employees permanent disability. If an employee 26 is required to leave work for which the employee is being paid 27 wages to attend an examination under this subsection, the 28 employee shall be compensated at the employees regular rate 29 for the time the employee is required to leave work, and the 30 employee shall be furnished transportation to and from the 31 place of examination, or the employer may elect to pay the 32 employee the reasonable cost of transportation. The physician 33 chosen by the employer to conduct the examination has the right 34 to confer with and obtain from any physician who has treated 35 -5- LSB 2201XS (2) 90 je/rn 5/ 7
S.F. 365 the injured employee sufficient history of the injury to make 1 a proper examination. The refusal by the employee to submit 2 to the examination shall forfeit the employees right to any 3 compensation for the period of the refusal. Compensation shall 4 not be payable for the period of refusal. 5 Sec. 3. EFFECTIVE DATE. This Act takes effect January 1, 6 2024. 7 Sec. 4. APPLICABILITY. This Act applies to injuries 8 occurring on or after January 1, 2024. 9 EXPLANATION 10 The inclusion of this explanation does not constitute agreement with 11 the explanations substance by the members of the general assembly. 12 This bill relates to the choice of a physician to treat an 13 injured employee under the states workers compensation laws. 14 The bill allows the employer to choose care unless the employee 15 has predesignated a physician as provided in the bill. 16 The bill gives an employee the right to predesignate a 17 physician who is a primary care provider, who has previously 18 provided treatment to the employee and has retained the 19 employees medical records, to provide treatment for a 20 work-related injury. The employer is required to provide 21 written notice to employees of this right upon hire, and 22 periodically during employment, and upon receiving notice 23 of an injury from an employee who has not yet predesignated 24 a physician of the employees right to do so, in a manner 25 prescribed by the workers compensation commissioner. An 26 employer or an employers insurer shall not coerce or otherwise 27 attempt to influence an injured employees choice of a 28 physician. 29 If the employer fails to provide such notification, an 30 injured employee has the right to choose any physician to 31 provide treatment for the work-related injury and that 32 treatment shall be considered authorized care. 33 If the employer or employee is dissatisfied with the care 34 chosen by the other party, the dissatisfied party should 35 -6- LSB 2201XS (2) 90 je/rn 6/ 7
S.F. 365 communicate the basis of dissatisfaction to the other party, in 1 writing if requested, and the parties may agree to alternate 2 care reasonably suited to treat the injury. If the parties 3 cannot agree to such alternate care, the dissatisfied party may 4 make an application for alternate care to the commissioner. 5 An application for alternate care is an original proceeding 6 and is treated as a contested case. A party may request that 7 the hearing be held in person, by telephone, or by audio-video 8 conference. The commissioner is required to issue a decision 9 within 10 working days of receipt of an application if a 10 telephone hearing or audio-video conference hearing is held or 11 within 14 days if an in-person hearing is held. 12 The bill provides that if the employee has chosen care, when 13 it is medically indicated that no significant improvement from 14 an injury is anticipated, the employee may obtain a medical 15 opinion regarding the extent of the employees permanent 16 disability. If the employer believes that the evaluation of 17 permanent disability obtained by the employee is too high, the 18 employer has the right to obtain another medical opinion from a 19 physician of the employers choosing. 20 The bill takes effect and applies to injuries occurring on or 21 after January 1, 2024. 22 -7- LSB 2201XS (2) 90 je/rn 7/ 7