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Regular Session, 2012
SENATE BILL NO. 560
BY SENATOR DONAHUE
WORKERS' COMPENSATION. To provide relative to workers' compensation, the
Louisiana Workers' Compensation Law. (8/1/12)
AN ACT1
To amend and reenact R.S. 23:1123, 1124.1, 1201(F)(1), (2) and (4), 1210(A), 1221(3)(a)2
and (4)(s)(i), and 1224, and to enact R.S. 23:1020.1, Subpart A-1 of Part I of Chapter3
10 of the Louisiana Revised Statutes of 1950 consisting of R.S. 23:1213 through4
1213.27, and 1314(D) and (E), relative to workers compensation; to provide for a5
purpose; to provide for a burden of proof; to provide with respect to disputes as to6
injury causation and extent of disability; to provide with respect to appointment of7
independent medical examiners; to provide with respect to nonpayment of benefits;8
to provide for medical provider networks; to provide with respect to burial benefits;9
to provide with respect to supplemental earnings benefits; to provide with respect to10
benefits for catastrophic injury; to provide with respect to payment of compensation11
in first week; to provide with respect to prematurity of petition; and to provide for12
related matters.13
Be it enacted by the Legislature of Louisiana:14
Section 1.R.S. 23:1123, 1124.1, 1201(F)(1), (2) and (4), 1210(A), 1221(3)(a) and15
(4)(s)(i), and 1224 are hereby amended and reenacted, and R.S. 23:1020.1, Subpart A-1 of16
Part I of Chapter 10 of the Louisiana Revised Statutes of 1950 consisting of R.S. 23:121317 SB NO. 560
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through 1213.27, and 1314(D) and (E) are hereby enacted to read as follows:1
§1020.1. Purpose; construction; evidentiary standard2
A. This Chapter shall be cited as the Louisiana Workers' Compensation3
Law.4
B. The purpose of workers' compensation shall be to pay timely5
temporary and permanent disability benefits to all legitimately injured workers6
who suffer an injury or disease arising out of and in the course of their7
employment, to pay medical expenses that are due pursuant to this Chapter,8
and then to return such workers to the work force. It is the intent of the9
legislature that the Louisiana Workers' Compensation Law be interpreted so10
as to assure the delivery of benefits to an injured employee in accordance with11
this Chapter, and to facilitate the employee's return to employment at a12
reasonable cost to the employer. The Louisiana Workers' Compensation Law13
is based on mutual renunciation of legal rights and defenses by employers and14
employees alike. It is the specific intent of the legislature that workers'15
compensation cases shall be decided on their merits. The legislature hereby16
declares that disputes concerning the facts in workers' compensation cases shall17
not be given a broad liberal construction in favor of either employees or18
employers, and the laws pertaining to workers' compensation shall be construed19
in accordance with the basic principles of statutory construction and not in20
favor of either employer or employee. Furthermore, when the workers'21
compensation statutes of this state are amended, the legislature acknowledges22
its responsibility to do so. If the workers' compensation statutes are to be23
liberalized, broadened, or narrowed, such actions shall be the exclusive purview24
of the legislature.25
C. Unless otherwise provided in this Chapter, the evidentiary standard26
for the burden of proof shall be by a preponderance of the evidence and placed27
upon the party who is asserting entitlement to compensation or medical28
benefits, or asserting entitlement to payment or additional payment for services29 SB NO. 560
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rendered to an employee covered by this Act. Preponderance of the evidence1
means evidence that, when weighed with that opposed to it, has more convincing2
force and the greater probability of truth. When weighing the evidence, the test3
shall not be the relative number of witnesses, but the relative convincing force4
of the evidence.5
* * *6
§1123. Disputes as to condition, or capacity to work, or current medical treatment7
of employee; examination under supervision of the medical director8
If any dispute arises between the opinions of physicians as to the condition9
of the employee , or his capacity to work, or the current medical treatment for the10
employee, the medical director, upon application of any party or a workers'11
compensation judge, shall order an examination of the employee to be made by a12
medical practitioner selected and appointed by the medical director. Such medical13
examiner shall be selected from any workers' compensation medical network14
approved pursuant to R.S. 23:1213.3. The medical examiner shall report his15
conclusions from the examination to the medical director and to the parties, who16
shall provide the report to the parties, and if applicable, to the requesting17
workers' compensation judge, and such report shall be prima facie evidence of the18
facts therein stated in any subsequent proceedings under this Chapter.19
* * *20
§1124.1. Cumulative medical testimony; medical examination21
Neither the claimant nor the respondent in hearing before the hearing officer22
shall be permitted to introduce the testimony of more than two physicians where the23
evidence of any additional physician would be cumulative testimony. However, the24
hearing officer, on his own motion, may order that any claimant appearing before it25
be examined by other physicians.26
* * *27
§1201. Time and place of payment; failure to pay timely; failure to authorize;28
penalties and attorney fees29 SB NO. 560
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* * *1
F. Failure to provide payment in accordance with this Section or failure to2
consent to the employee's request to select a treating physician or change physicians3
when such consent is required by R.S. 23:1121 shall result in the assessment of a4
penalty in an amount up to the greater of twelve percent of any unpaid compensation5
or medical benefits, or fifty dollars per calendar day for each day in which any and6
all compensation or medical benefits remain unpaid or such consent is withheld,7
together with reasonable attorney fees for each disputed claim; however, the fifty8
dollars per calendar day penalty shall not exceed a maximum of two thousand dollars9
in the aggregate for any claim. The maximum amount of penalties which may be10
imposed at a hearing on the merits regardless of the number of penalties which might11
be imposed under this Section is eight thousand dollars. An award of penalties and12
attorney fees at any hearing on the merits shall be res judicata as to any and all13
claims for which penalties may be imposed under this Section which precedes the14
date of the hearing. Penalties shall be assessed in the following manner:15
(1) Such penalty and attorney fees shall be assessed against either the16
employer or the insurer, depending upon fault. No workers' compensation insurance17
policy shall provide that these sums shall be paid by the insurer if the workers'18
compensation judge determines that the penalty and attorney fees are to be paid by19
the employer rather than the insurer. In the event that the health care provider20
prevails on a claim for payment of his fee, penalties as provided in this Section21
and reasonable attorney fees based upon actual hours worked may be awarded22
and paid directly to the health care provider. This Subsection shall not be23
construed to provide for recovery of more than one penalty or attorney fee.24
(2) (a) This Subsection shall not apply if the claim is reasonably controverted25
or if such nonpayment results from conditions over which the employer or insurer26
had no control unless the failure to make payment in accordance with this27
Section is arbitrary and capricious.28
(b) Such penalty and attorney fees shall be assessed against either the29 SB NO. 560
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employer or the insurer, depending upon fault. No workers' compensation1
insurance policy shall provide that these sums shall be paid by the insurer if the2
workers' compensation judge determines that the penalty and attorney fees are3
to be paid by the employer rather than the insurer.4
* * *5
(4) In the event that the health care provider prevails on a claim for payment6
of his fee, penalties as provided in this Section and reasonable attorney fees based7
upon actual hours worked may be awarded and paid directly to the health care8
provider. This Subsection shall not be construed to provide for recovery of more than9
one penalty or attorney fee. (a) For purposes of this Chapter, "arbitrary and10
capricious" means conduct or behavior which is callous, willful, unreasoning11
and egregious and without consideration and regard for facts and12
circumstances presented. An action is not arbitrary and capricious when13
exercised honestly and upon due consideration, even though an erroneous14
conclusion has been reached. The reliance upon facts and circumstances,15
medical or vocational opinion, application of law or any other information16
suggesting that a disputed benefit or claim might not be due shall preclude a17
finding of arbitrary and capricious conduct.18
(b) Attorney fees awarded under this Chapter shall be reasonable and19
only be paid based upon actual hours worked.20
* * *21
§1210. Burial expenses; duty to furnish22
A. In every case of death, the employer shall pay or cause to be paid, in23
addition to any other benefits allowable under the provisions of this Part, reasonable24
expenses of the burial of the employee, not to exceed seven eight thousand five25
hundred dollars.26
* * *27
SUBPART A-1. MEDICAL PROVIDER NETWORKS28
§1213. Existence or establishment of network; availability of treatment;29 SB NO. 560
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approval and regulations1
A. (1) After January 1, 2013, any written contract or combination of2
written contracts that form the basis of a workers' compensation medical3
provider network certified under this Subpart for the purpose of providing4
necessary medical services required by this Chapter shall be governed by this5
Subpart.6
(2) The purpose of this Subpart shall be to provide standards to existing7
or newly created networks for medical services as defined in this Subpart to8
injured employees by workers' compensation medical provider networks.9
§1213.1. Limitations on applicability10
This Subpart shall govern the creation, administration, evaluation, and11
enforcement of the delivery of medical services to injured employees by12
workers' compensation medical provider networks. The provisions of other13
statutes relating to the delivery of medical services to persons other than injured14
employees shall not apply unless specifically referenced in this Subpart.15
Specifically, a workers' compensation medical provider network shall not be16
subject to the provisions of Title 40 or Title 22 of the Louisiana Revised Statutes17
of 1950. Furthermore, any penalty, fine, or other monetary method allowed by18
law to prohibit or punish a certain act or failure to act, whether administrative,19
civil, or criminal, shall not apply to a workers' compensation medical provider20
network unless expressly provided in this Subpart.21
§1213.2. Definitions22
In this Subpart, unless the context clearly indicates otherwise:23
(1) "Complainant" means a person who files a complaint under this24
Subpart, and includes any of the following persons:25
(a) An employee.26
(b) An employer.27
(c) A medical services provider.28
(d) Another person designated to act on behalf of an employee.29 SB NO. 560
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(2) "Complaint" means any written expression of dissatisfaction by a1
complainant to a network regarding any aspect of the network's operation.2
Complaint also includes dissatisfaction relating to medical fee disputes and3
network administration and the manner in which a service is provided. A4
complaint shall not include any of the following circumstances:5
(a) A misunderstanding or a problem that is resolved promptly by6
clearing up the misunderstanding or supplying the appropriate information to7
the satisfaction of the complainant.8
(b) A written expression of dissatisfaction with an adverse9
determination.10
(3) "Fee dispute" means a dispute over the amount of payment due for11
medical services determined to be medically necessary and appropriate for12
treatment of a compensable injury.13
(4) "Emergency care" means emergency care as defined in LAC 40:I,14
Chapter 27, §2715.15
(5) "Medical services" means a medical benefit owed to an injured16
employee pursuant to R.S. 23:1203, including without limitation, medical care,17
services, treatment, drugs, supplies, translation, transportation, durable18
medical equipment, diagnostics, and any other medical related benefit provided19
to the injured employee pursuant to R.S. 23:1203 and 1203.1.20
(6) "Network" or "workers' compensation medical provider network"21
includes any of the following organizations:22
(a) An organization that has been in existence prior to the enactment of23
this Subpart and in accordance with this Subpart becomes certified.24
(b) An organization that was formed as a workers' compensation25
medical provider network and certified in accordance with this Subpart.26
(7) "Office" means the office of workers' compensation administration27
established pursuant to R.S. 23:1291.28
(8) "Payor" means a payor as defined in R.S. 23:1142(A).29 SB NO. 560
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(9) "Person" means any individual, company, insurer, association,1
organization, reciprocal or inter-insurance exchange, partnership, business,2
trust, limited liability company, or corporation.3
(10) "Preauthorization" means the process required to request approval4
from the payor or the network to provide a specific treatment or service before5
the treatment or service is provided.6
(11) "Rural area" means an area that is not designated as an urbanized7
area by the United States Census Bureau.8
(12) "Service Area" means a geographic area based upon the physical9
address of the employer's business or the employee's residence within which10
medical services from network providers are available and accessible to injured11
employees.12
(13) "Utilization review" means a review of the medical necessity of13
medical services provided or to be provided to an injured employee in14
accordance with the provisions of LAC 40:I, Chapter 27 or other applicable15
network protocols.16
§1213.3. Participation in network; notice of network requirements17
A. After January 1, 2013, a payor may do any of the following:18
(1) Establish a network certified pursuant to this Subpart to provide19
medical services under this Chapter.20
(2) Contract with another person for access to a network certified21
pursuant to this Subpart to provide medical services under this Chapter.22
(3) Maintain an existing network that was established by the payor, or23
that was contracted with the payor, provided that such network becomes24
certified pursuant to this Subpart.25
(4) Choose not to participate in a network and continue to reimburse26
providers in accordance with R.S. 23.1034.2.27
B. An employer may have multiple specialty contracting entities, but28
only one certified workers' compensation medical provider services network29 SB NO. 560
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within each service area.1
C. If a payor establishes, maintains, or contracts for access to a certified2
workers' compensation medical provider network, medical services owed to the3
injured employee shall be obtained only within the network, except as provided4
by R.S. 23:1203.7.5
D. The injured employee shall be notified in writing of the network6
requirements by the employer or the payor. Only one notice by either the7
employer or payor is required, and the earliest notice provided shall be8
recognized as the date of notice. Notice by the employer may occur prior to the9
accident, and if provided, shall be signed by the employer and the employee10
with the date the notice was provided to the employee. Notice by the payor, in11
the event the employer did not provide notice, shall occur after the payor12
receives notice of a claim or upon transferring an existing claim into the13
network. Notice by the payor shall be accomplished by mailing written notice14
to the employee. Such written notice shall, at a minimum, provide all of the15
following items:16
(1) A statement to the employee that medical services pursuant to this17
Chapter shall be provided by a workers' compensation medical provider18
network.19
(2) The network's toll-free telephone number and address for obtaining20
additional information about the network, including information about network21
providers.22
(3) Contact information for the payor and the network.23
(4) A statement that in the event of an accident, the injured employee24
shall select a treating doctor, either from a list of all the network's treating25
doctors who have contracts with the network in that service area, or as26
described in R.S. 23:1213.7.27
(5) A statement that, except for emergency care, the injured employee28
shall obtain all medical services and any referrals for medical services,29 SB NO. 560
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including specialists, through his treating doctor.1
(6) An explanation that network providers have agreed to look only to2
the network or payor and not to injured employees for payment for medical3
services, except as provided by R.S. 23:1213.7.4
(7) A statement that if the injured employee obtains medical services5
from non-network providers, except as otherwise provided in this Section or as6
provided by R.S. 23:1213.7, the payor shall not be liable, and the injured7
employee may be liable for payment for those medical services.8
(8) Information about how to obtain emergency care, including9
emergency care outside the service area, and after-hours care.10
(9) A list of the medical services for which the payor or network requires11
preauthorization or concurrent review.12
(10) An explanation regarding continuity of treatment in the event of the13
termination from the network of a treating doctor.14
(11) A list of the specialties that the network has chosen to serve as15
treating doctors.16
(12) A website address that provides a list of network medical services17
providers within the appropriate service area updated at least quarterly,18
including the names and addresses of such medical services providers.19
(13) A description of the process by which a complainant shall initiate a20
complaint to the network.21
E. The network and the network's representatives and agents may not22
cause or knowingly permit the use or distribution to employees of information23
that is untrue or misleading.24
F. A network that contracts with a payor shall provide all the25
information necessary to allow the payor to comply with this Section.26
G. An injured employee shall not be required to comply with the27
network requirements until network notice has been provided as required by28
this Section. Until such notice is provided, the payor owes medical services as29 SB NO. 560
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otherwise required by this Chapter.1
H. The office may adopt rules as necessary to implement R.S. 23:1213.6.2
§1213.4. Payor responsibility for out-of-network medical services3
A. A payor that provides medical services through a certified workers'4
compensation medical provider network shall be responsible for all of the5
following out-of-network care provided to an injured employee:6
(1) Emergency care.7
(2) Medical services provided to an injured employee when the network8
does not make available medical services providers necessary to treat the9
injured worker's specific condition within the accessibility standards established10
in R.S. 23:1213.24.11
(3) Medical services provided by an out-of-network medical services12
provider pursuant to a referral from the injured employee's treating doctor that13
is within the network, and such referral has been approved by the payor.14
B. A payor is not responsible for out-of-network medical services15
obtained by the employee subsequent to those described in Subsection (A) of16
this Section, provided that the network makes available medical service17
providers for subsequent care necessary to treat the employee's condition within18
the accessibility requirements contained in R.S. 23:1213.24.19
§1213.5. Requirement to obtain network medical services20
An injured employee shall be required to obtain medical services21
through a certified workers' compensation medical provider network provided22
that the Network meets the accessibility requirements contained in R.S.23
23:1213.24.24
§1213.6. Certification required25
A. After January 1, 2013, a person shall not operate a workers'26
compensation medical provider network in this state unless the person holds a27
certificate of authority issued under this Subpart.28
B. No person shall perform any act of a workers' compensation medical29 SB NO. 560
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provider network except in accordance with the specific authorization of this1
Subpart.2
C. A workers' compensation medical provider network shall contract in3
writing with its medical services providers. Such written contract shall provide4
for medical services pursuant to R.S. 23:1203 and 1203.1. An entity certified as5
a workers' compensation medical provider network may have a written6
contract with a medical services provider accessed by more than one employer7
provided that no employer has more than one network in each service area.8
§1213.7. Specialty contracting entity9
"Specialty Contracting Entity" means a for-profit or not-for-profit10
organization that contracts with medical services providers at a fixed11
contractual rate for the purpose of providing access to ancillary or12
complementary medical services, including but not limited to physical medicine,13
diagnostic radiology, durable medical equipment, home health care, and14
translation and transportation services, but not including treating physicians.15
Specialty contracting entities may contract with certified networks and payors.16
Specialty contracting entities shall not be eligible for certification under this17
Subpart but shall comply with applicable provisions of R.S. 23:1213.9 relating18
to provider agreements.19
§1213.8. Certificate application20
A. Any person may seek to operate as a workers' compensation medical21
provider network.22
B. A person who seeks to operate as a workers' compensation medical23
provider network shall apply to the office of the workers' compensation24
administration for a certificate to organize and operate as a network.25
C. A certificate application shall be:26
(1) Filed with the office in the form prescribed by the director.27
(2) Verified by the applicant or an officer or other authorized28
representative of the applicant.29 SB NO. 560
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(3) Accompanied by a non-refundable fee set by rule.1
§1213.9. Contents of application2
Each certificate application shall include all of the following provisions:3
A. A cover page on the form prescribed by the director, to include, at a4
minimum, all of the following information:5
(1) Type of applicant (payor, network contracting entity, or other entity).6
(2) Name of the applicant.7
(3) Applicant's tax identification number.8
(4) Name of medical provider network, if applicable.9
(5) Contact name, title, address, email address and telephone number of10
the person who will serve as the office's liaison.11
(6) A signed verification statement by an officer or employee of the12
applicant with the authority to act on behalf of the applicant with respect to the13
network. The verification shall state: "I, the undersigned officer or employee14
of the network applicant, have read and signed this application and know the15
contents thereof, and verify that, to the best of my knowledge and belief, the16
information included in this application is true and correct".17
B. A description of the applicant's service area or areas.18
C. A description of how the applicant complies with the access standards19
set forth in R.S. 23:1213.21.20
D. A sample of the employee notice that complies with R.S. 23:1213.6.21
E. A description of the process by which a complainant may pursue a22
complaint with the network.23
§1213.10. Action on application; renewal of certification24
A. The director shall approve or disapprove an application for25
certification as a network not later than the sixty days after the date the26
completed application is received by the office. An application is considered27
complete on receipt of all information required by this Subpart, including28
receipt of additional information requested by the director as needed to make29 SB NO. 560
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the determination.1
B. The director shall notify the applicant of any deficiencies in the2
application and may allow the applicant to request additional time to revise the3
application, in which case the sixty day period for approval or disapproval is4
suspended. The director may grant or deny requests for additional time at the5
director's discretion.6
C. An order issued by the director disapproving an application must7
specify in what respects the application does not comply with applicable statutes8
and rules. An applicant whose application is disapproved may request a hearing9
under the Administrative Procedure Act before the office. The request must be10
made not later than the 30 days after the date of the director's disapproval11
order. Appeals may be taken in accordance with the Administrative Procedure12
Act.13
D. A certificate issued under this Subpart is valid until revoked or14
suspended, provided the licensee shall be under a duty to annually file with the15
office any information needed to cause the application to continue to be true and16
accurate, and the office by rule may levy an annual fee to maintain the17
certificate.18
E. If the application meets the requirements of this Subpart, the director19
shall not withhold approval, or disapprove the application based on the20
selection of medical services providers. In developing a workers' compensation21
medical providers network, the payor or the contracted network shall have the22
exclusive right to determine the medical services providers in the network and23
to add or remove providers at its discretion.24
§1213.11. Use of certain insurance terms by network prohibited25
A certified network whereby the payor is the applicant, whether created26
after or existing prior to the enactment of this Subpart, may identify the27
network as the payor's network. A network certified by an entity other than a28
payor, which then contracts with a payor, whether created after or existing29 SB NO. 560
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prior to the enactment of this Subpart, may not identify the network as the1
payor's network but rather shall identify the network by name as the entity that2
was certified through application.3
§1213.12. Restraint of trade; application of certain laws4
A. A network that contracts with a medical services provider or medical5
services providers practicing individually or as a group is not, because of the6
contract or arrangement, deemed to be in violation of any state law prohibiting7
arrangements or contracts which restrain trade.8
B. Notwithstanding any other law or rule to the contrary, a person who9
contracts under this Subpart with one or more medical services providers to10
conduct activities that are permitted by law under this Subpart or under any11
other applicable law but that do not require a certificate of authority or other12
authorization under this Subpart is not, because of the contract, deemed to be13
in violation of any state law prohibiting arrangements or contracts which14
restrain trade.15
§1213.13. Treating doctor; referrals16
A. A network shall determine the specialty or specialties of doctors who17
may serve as treating doctors.18
B. For each compensable injury, an injured employee shall select a19
treating doctor from the list of all treating doctors under contract with the20
network within the accessibility requirements contained in R.S. 23:1213.21(F).21
C. Each network shall, by contract, require treating doctors to provide,22
at a minimum, the functions and services for injured employees described by23
this Subpart.24
D. A treating doctor shall provide medical services to the injured25
employee for the employee's compensable injury and shall make referrals to26
other network medical services providers where necessary, or make referrals27
to out-of-network medical services providers if medically necessary services are28
not available within the network accessibility requirements contained in R.S.29 SB NO. 560
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23:1213.21. Referrals to out-of-network providers must be preapproved by the1
network.2
E. The treating doctor shall participate in the medical case management3
and utilization review programs as required by the network, including4
participation in prompt return-to-work planning.5
§1213.14. Selection of treating doctor6
A. An injured employee is entitled to the employee's initial choice of a7
treating doctor from the list provided by the network of all treating doctors8
under contract with the network who provide services within the applicable9
service area in which the injured employee lives. None of the following10
constitutes an initial choice of treating doctor:11
(1) A doctor salaried by the employer.12
(2) A doctor providing emergency care.13
(3) Any doctor who provides care before the employee is required to14
obtain medical services from the network.15
B. An injured employee who is dissatisfied with the initial choice of a16
treating doctor is entitled to select one alternate treating doctor from the17
network's list of treating doctors who provides services within the applicable18
service area by notifying the payor in the manner prescribed by the network.19
C. An injured employee who is dissatisfied with the second treating20
doctor shall obtain authorization from the payor to select any subsequent21
treating doctor in the manner prescribed by the network. The network shall22
establish procedures and criteria to be used in authorizing an employee to select23
subsequent treating doctors. The criteria shall include, at a minimum, all of the24
following:25
(1) Treatment by the current treating doctor is medically inappropriate.26
(2) The injured employee is receiving appropriate medical care to reach27
maximum medical improvement.28
(3) A conflict exists between the injured employee and the current29 SB NO. 560
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words in boldface type and underscored are additions.
treating doctor to the extent that the doctor-patient relationship is jeopardized1
or impaired.2
D. Denial of a request for any subsequent treating doctor is subject to the3
appeal process for a complaint filed under this Subpart.4
E. For purposes of this Section, none of the following circumstances5
constitute the selection of an alternate or any subsequent treating doctor:6
(1) A referral made by the treating doctor, including a referral for a7
second or subsequent opinion.8
(2) The selection of a treating doctor because the original treating doctor9
dies, retires, or leaves the network.10
(3) A change of treating doctor required because of a change of address11
by the employee to a location outside the accessibility requirements contained12
in R.S. 23:1213.24(F).13
§1213.15. Payment of medical services provider14
Notwithstanding any other provisions of this Subpart, a payor shall pay,15
reduce, deny, or determine to audit, a claim for services provided through a16
workers' compensation medical provider network in accordance with R.S.17
23:1213.23.18
§1213.16. Network contracts with providers19
A. A network shall enter into a written contract with each medical20
services provider or group of medical services providers, or a special21
contracting entity, that participates in the network. A medical services provider22
contract under this Section shall be confidential, shall not be subject to23
disclosure as public record information under R.S. 44:31, et seq., and shall not24
be subject to subpoena under any other applicable law.25
B. Medical services provider contracts and subcontracts shall include,26
at a minimum, all of the following provisions:27
(1) A hold-harmless clause stating that the network and the network's28
contracted medical services providers are prohibited from billing or attempting29 SB NO. 560
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to collect any amounts from injured employees for medical services under any1
circumstances, including the insolvency of the payor or the network, except as2
otherwise provided by R.S. 23:1203.7.3
(2) A clause regarding appeal by the medical services provider of4
termination of a medical services provider's contract and applicable written5
notification to injured employees regarding such a termination.6
C. Compensation to network medical services providers may not be7
structured in order to achieve the goal of reducing, delaying, or denying medical8
treatment or restricting access to medical treatment. Economic profiling is9
specifically authorized pursuant to R.S. 23:1203.34.10
§1213.17. Provider payment11
A. (1) The amount of payment for services provided by a network12
medical services provider is determined by the contract between the network13
and the medical services provider or group of medical services providers or14
between the special contracting entity and the medical services provider or15
group of medical services providers. The network and the medical services16
provider may agree to use any basis to calculate the payment, including, but not17
limited to, the fee schedule established under R.S. 23:1034.2.18
(2) The contract between the network and the medical services provider19
or group of medical services providers shall include the following governing20
provisions:21
(a) The billing requirements for payment including when bills shall be22
submitted from date of service and the forms used to bill.23
(b) The information required for submission of a bill to substantiate24
payment.25
(c) The timeframes and requirements to request reconsideration of a26
payment, reduced payment, or denial of payment.27
(d) That the administrative review provisions of the contract shall be28
exhausted prior to the filing of a disputed claim form LA-WC-1008.29 SB NO. 560
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B. If a payor or network has preauthorized a medical service, the payor1
or network or the network's agent or other representative shall not deny2
payment to a medical services provider except for reasons other than medical3
necessity.4
C. Out-of-network providers, including providers located in and licensed5
to provide medical services in other states, who provide care as permitted by6
this Subpart shall be paid as provided by the reimbursement schedule7
established under R.S. 23:1034.2 and applicable rules of the office, provided8
that nothing shall prohibit a network from negotiating payment for9
out-of-network services at a rate other than the reimbursement schedule10
established under R.S. 23:1034.2.11
D. Subject to Subsection (A) of this Section, billing by, and payment to,12
contracted and out-of-network medical services providers shall be subject to the13
requirements of the Louisiana Workers' Compensation Law and applicable14
rules, as consistent with this Subpart. This Subsection shall not be construed to15
require application of rules of the office regarding reimbursement or payment16
if application of those rules would negate payment amounts negotiated by the17
network.18
E. A complainant shall file a complaint with the network within sixty19
days after the occurrence of the incident that creates the basis of the complaint.20
After the receipt of a complaint filed timely, a network shall within sixty days21
respond to the complaint in writing, either affirming, modifying, or reversing22
the action set forth in the complaint. The complainant shall not be entitled to23
further relief from the office of workers' compensation unless a timely24
complaint has been filed with the network, and the network has adjudicated the25
timely received complaint or failed to adjudicate it within sixty days of its26
receipt.27
§1213.18. Network-payor contracts28
A. Except for emergencies and out-of-network referrals, a network may29 SB NO. 560
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make available medical services to employees only pursuant to a written1
contract with a payor. A network-payor contract under this Section shall be2
confidential and shall not be subject to disclosure as public record information3
under any other applicable law.4
B. A network's contract with a payor shall include a statement that the5
network's role is to make available the services described under this Subpart as6
well as any other services or functions agreed to between the network and the7
payor.8
§1213.19. Restrictions on payment and reimbursement9
A party to a payor-network contract shall not sell, lease, or otherwise10
transfer information regarding the payment terms of the contract without the11
express authority of and prior adequate notification to the other contracting12
parties. This Subsection shall not affect the authority of the director under this13
Subpart to request and obtain information.14
§1213.20. Network organization; service areas15
The network shall establish one or more service areas within this state.16
For each defined service area, the network must demonstrate to the satisfaction17
of the office the ability to provide continuity, accessibility, availability, and18
quality of medical services; and make available a complete provider directory19
to all employers which have contracted with a payor which has a network in the20
applicable service area and to all injured employees of each said employer. Such21
directory may be made available through electronic means, including, but not22
limited to, website access or electronic files.23
§1213.21. Accessibility and availability requirements24
A. All medical services specified by this Section shall be provided by a25
medical services provider who holds an appropriate license, unless the medical26
services provider is exempt from license requirements.27
B. The network shall ensure that the network's medical services provider28
panel includes an adequate number of treating doctors and specialists, who shall29 SB NO. 560
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be available and accessible to injured employees twenty-four hours a day, seven1
days a week. A network shall include sufficient numbers and types of health2
care providers to ensure choice, access, and quality of care to injured3
employees. At a minimum, the network shall have at least two treating doctors4
and specialists necessary to treat common injuries experienced by injured5
employees within the accessibility requirements contained in Subsection (F) of6
this Section.7
C. Hospital services shall be available and accessible twenty-four hours8
a day, seven days a week, within the accessibility requirements contained in9
Subsection (F) of this Section.10
D. Emergency care must be available and accessible twenty-four hours11
a day, seven days a week, without restrictions as to where the services are12
rendered.13
E. Except for emergencies, a network shall make available medical14
services, including specialists, to be accessible to injured employees on a timely15
basis on request.16
F. Each network shall provide that network services are sufficiently17
accessible and available as necessary to ensure that the distance from the18
employer's physical address or the employee's residence to a point of service by19
a treating doctor or general hospital is not greater than thirty miles in nonrural20
areas and sixty miles in rural areas and that the distance from the employer's21
physical address or the employee's residence to a point of service by a specialist22
or specialty hospital is not greater than seventy-five miles in all areas. For23
portions of the service area in which the network identifies noncompliance with24
this Subsection, the network must file an access plan with the office in25
accordance with Subsection (G) of this Section.26
G. (1) The network shall submit an access plan to the office for approval27
at least thirty days before implementation of the plan if any medical services28
service or a network medical services provider shall not be available to an29 SB NO. 560
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injured employee within the distance specified by Subsection (F) of this Section1
for any of the following reasons:2
(a) Medical services providers are not located within that distance.3
(b) The network is unable to obtain medical services provider contracts.4
(c) Medical services providers meeting the network's minimum quality5
of care and credentialing requirements are not located within that distance.6
(2) Nothing shall prohibit a network from submitting, as part of its7
application, an access plan applicable to all its service areas allowing treatment8
with an out-of-network medical service provider in the event medical services9
are not available within the network mileage requirements established in10
Subsection (F) of this Section.11
H. The network may make arrangements with medical services12
providers outside the service area to enable injured employees to receive a skill13
or specialty not available within the network service area.14
I. The network shall not be required to expand services outside the15
network's service area to accommodate injured employees who live outside the16
service area.17
§1213.22. Quality of care18
The network shall have the option of adopting a medical case19
management program to work with treating doctors, referral medical services20
providers, injured employees and employers to facilitate cost-effective care and21
employee prompt return-to-work. Each network shall also have the option of22
adopting nationally recognized prompt return-to-work guidelines.23
§1213.23. Utilization review and retrospective review in network24
The requirements of R.S. 23:1142, 1203.1, and LAC 40:1, Chapter 27,25
shall apply to utilization review conducted in relation to claims in a workers'26
compensation medical provider services network. In the event of a conflict27
between R.S. 23:1142, 1203.1, and LAC 40:1, Chapter 27, and this Subpart, this28
Subpart controls.29 SB NO. 560
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§1213.24. Confidentiality requirements1
A. As necessary to implement this Subpart, the office may access2
information from an executive agency that is otherwise confidential under any3
law of this state, including the Louisiana Workers' Compensation Law.4
B. Confidential information provided to or obtained by the office under5
this Section shall remain confidential and shall not be subject to disclosure6
under any public records law or be subject to subpoena under any other law.7
The office shall not release, and a person shall not gain access to, any8
information that could reasonably be expected to reveal the identity of an9
injured employee, or disclose medical services provider discounts or10
differentials between payments and billed charges for individual medical11
services providers or networks.12
C. Information that is in the possession of the office and that relates to13
an individual injured employee, and any compilation, report, or analysis14
produced from the information that identifies an individual injured employee,15
shall not be subject to discovery, subpoena, or other means of legal compulsion16
for release to any person, or admissible in any civil, administrative, or criminal17
proceeding, except in connection with any claim for compensation under this18
Chapter.19
§1213.25. Determination of violation; notice20
A. If the director determines that a network, payor, or any other person21
or third party operating under this Subpart, including a third party to which22
services have been delegated, is in violation of this Subpart or applicable23
provisions of the Louisiana Workers' Compensation Law or rules adopted24
pursuant thereto, the director or a designated representative shall notify the25
network, payor, person, or third party of the alleged violation and may compel26
the production of any documents or other information as necessary to27
determine whether the violation occurred.28
B. The director may initiate the proceedings under this Section.29 SB NO. 560
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C. A proceeding under this Section shall be conducted under the1
Administrative Procedure Act.2
D. If after a hearing, it is determined that a network, payor, or other3
person or third party described under this Section has violated or is violating4
this Subpart, or the Louisiana Workers' Compensation Law or rules adopted5
pursuant thereto, the office may take any of the following actions:6
(1) Suspend or revoke any certificate issued under this Subpart.7
(2) Issue a cease and desist order.8
(3) Take any combination of these actions.9
§1213.26. Economic profiling10
A. A payor that offers a workers' compensation medical provider11
network under this Subpart and that uses economic profiling shall maintain a12
description of any policies and procedures related to economic profiling utilized13
by the network. The description shall describe how economic profiling is used14
in utilization review, peer review, incentive and penalty programs, and in15
medical services provider retention and termination decisions. The network16
shall, upon request, provide a copy of the filing to an individual physician,17
medical services provider, medical group or individual practice association.18
B. The purposes of this Subpart, "economic profiling" means any19
evaluation of a particular physician, medical services provider, medical group20
or individual practice association based in whole or in part on the economic21
costs or utilization of services associated with medical care provided or22
authorized by the physician, medical services provider, medical group or23
individual practice association.24
§1213.27. Continuity of medical care; retention or termination of medical25
services providers26
A. A payor or employer that arranges for care for injured workers27
through a workers' compensation medical provider network shall develop and28
maintain a written continuity of care policy and information regarding the29 SB NO. 560
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process for an injured employee to request a review under the policy, and shall1
provide, upon request, a copy of the written policy to an employee.2
B.(1) The payor or employer that offers a workers' compensation3
medical provider network shall, at the request of an injured employee, provide4
the completion of treatment as set forth in this Section by a terminated medical5
services provider.6
(2) The completion of treatment shall be provided by a terminated7
medical services provider to an injured employee who, at the time of the8
medical services provider contract's termination, was receiving services from9
that medical services provider for one of the conditions described in Paragraph10
(3) of this Subsection.11
(3) The payor or employer shall provide for the completion of treatment12
for the following conditions subject to coverage under this Chapter:13
(a) An acute condition. "An acute condition" means a medical condition14
that involves a sudden onset of symptoms due to a compensable injury or15
disease that requires prompt medical attention and that has a limited duration.16
Completion of treatment shall be provided for the duration of the acute17
condition.18
(b) A serious chronic condition. "A serious chronic condition" means a19
medical condition due to a compensable injury or disease, that is serious in20
nature and that persists without full cure, or worsens over an extended period21
of time, or requires ongoing treatment to maintain remission or prevent22
deterioration. Completion of treatment shall be provided for a period of time23
necessary to complete a course of treatment and to arrange for a safe transfer24
to another medical services provider, as determined by the payor or employer25
in consultation with the injured employee and the terminated medical services26
provider, and consistent with good professional practice. Completion of27
treatment under this Subsection shall not exceed twelve months from the28
medical services provider contract termination date.29 SB NO. 560
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(c) A terminal illness. "A terminal illness" means an incurable or1
irreversible condition as a result of a compensable injury or disease that has a2
high probability of causing death within one year or less. Completion of3
treatment shall be provided for the duration of a terminal illness.4
(d) Surgery. The performance of a surgery or other procedure that is5
authorized by the payor or employer and which is part of a documented course6
of treatment and which has been recommended and documented by the medical7
services provider to occur within one hundred eighty days of the medical8
services provider contract's termination date.9
(4) A payor or employer shall ensure that the requirements of this10
Section are met.11
(5) This Section shall not require a payor or employer to provide for12
completion of treatment by a medical services provider whose medical services13
provider contract with the payor or employer has been terminated or not14
renewed for reasons related to a medical disciplinary cause or reason, fraud, or15
any criminal activity.16
(6) Nothing in this Section shall preclude a payor or employer from17
providing continuity of care beyond the requirements of this Section.18
* * *19
§1221. Temporary total disability; permanent total disability; supplemental earnings20
benefits; permanent partial disability; schedule of payments21
Compensation shall be paid under this Chapter in accordance with the22
following schedule of payments:23
* * *24
(3) Supplemental earnings benefits.25
(a) (i) For injury resulting in the employee's inability to earn wages equal to26
ninety percent or more of wages at time of injury, supplemental earnings benefits,27
payable monthly, equal to sixty-six and two-thirds percent of the difference between28
the average monthly wages at time of injury and average monthly wages earned or29 SB NO. 560
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average monthly wages the employee is able to earn in any month thereafter in any1
employment or self-employment, whether or not the same or a similar occupation as2
that in which the employee was customarily engaged when injured and whether or3
not an occupation for which the employee at the time of the injury was particularly4
fitted by reason of education, training, and experience, such comparison to be made5
on a monthly basis. Average monthly wages shall be computed by multiplying his6
"wages" by fifty-two and then dividing the quotient by twelve.7
(ii) When the employee is no longer temporarily and totally disabled as8
provided in this Section, but is not earning any income and the employer has not9
established earning capacity pursuant to R.S. 23:1226, payments of benefits10
shall continue in accordance with R.S. 23:1201A(1).11
* * *12
(4) Permanent partial disability. In the following cases, compensation shall13
be solely for anatomical loss of use or amputation and shall be as follows:14
* * *15
(s)(i) In addition to any other benefits to which an injured employee may be16
entitled under this Chapter, any employee suffering an injury as a result of an17
accident arising out of and in the course and scope of his employment shall be18
entitled to a sum of thirty fifty thousand dollars, payable within one year after the19
date of the injury. Interest on such payment shall not commence to accrue until after20
it becomes payable. Such payment shall not be subject to any offset for payment of21
any other benefit under this Chapter. Such payment shall not be subject to a claim22
for attorney fees; however, attorney fees may be awarded in a claim to collect such23
payment pursuant to R.S. 23:1201.2.24
* * *25
§1224. Payments not recoverable for first week; exceptions26
No compensation shall be paid for the first week after the injury is received;27
provided, that in cases where disability from injury continues for six two weeks or28
longer after date of the accident, compensation for the first week shall be paid after29 SB NO. 560
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the first six two weeks have elapsed.1
* * *2
§1314. Necessary allegations; dismissal of premature petition3
* * *4
D. Notwithstanding any other provisions of this Section, the employer5
shall be permitted to file a claim to controvert benefits or concerning any other6
dispute arising under this Chapter.7
E. Disputes over whether medical treatment is due under the medical8
treatment schedule shall be premature unless a decision of the medical director9
has been obtained in accordance with R.S. 23:1203.1(J).10
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Alan Miller.
DIGEST
Proposed law provides that the evidentiary standard for the burden of proof be by a
preponderance of the evidence and placed upon the party who is asserting entitlement to
compensation or medical benefits, or asserting entitlement to payment or additional payment
for services rendered to an employee.
Present law requires that penalties and attorney fees be assessed against either the employer
or the insurer, depending upon fault. Present law further requires that workers' compensation
insurance policy provide that these sums be paid by the insurer if the workers' compensation
judge determines that the penalty and attorney fees are to be paid by the employer rather than
the insurer.
Proposed law repeals present law and provides that in the event that the health care provider
prevails on a claim for payment of his fee, penalties, and reasonable attorney fees based
upon actual hours worked be awarded and paid directly to the health care provider.
Proposed law regarding recovery of attorney fees only applies if the failure to make payment
is arbitrary and capricious.
Present law provides that in every case of death, the employer shall pay reasonable expenses
of the burial of the employee, not to exceed $7500.
Proposed law retains present law but increases the amount to $8500.
Proposed law provides for the governance, creation, administration, evaluation, and
enforcement of the delivery of medical services to injured employees by workers'
compensation medical provider networks.
Proposed law provides that after January 1, 2013, employers may participate in workers'
compensation providers networks.
Proposed law provides that the employer is responsible for certain out-of-network care. SB NO. 560
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Proposed law requires the injured worker to utilize medical service through the network, if
accessible.
Proposed law requires that networks be certified and further provides for application
procedures.
Proposed law allows for "specialty contracting entities" that can contract with the network
to provide access to ancillary or complimentary medical services.
Proposed law requires the director of the office of workers' compensation to act on
applications of applicants within 60 days of submission.
Proposed law provides that contracts between the network and health care providers do not
constitute a restraint of trade.
Proposed law provides that the injured worker may select a treating doctor from the list of
doctors participating in the network. Proposed law further provides that if the treating doctor
shall make a referral, he shall make every effort to refer the injured worker to another doctor
within the network.
Proposed law authorizes the injured worker to select a second doctor who participates in the
network, if he is dissatisfied with his initial choice.
Proposed law requires the network to enter into a written contract with each medical services
provider or group of medical services providers, or a special contracting entity, that
participates in the network. Proposed law further provides that such medical services
provider contracts are confidential, not subject to disclosure as public record information and
not subject to subpoena.
Proposed law provides that the amount of payment for services provided by a network
medical services provider is determined by the contract between the network and the medical
services provider or group of medical services providers or between the special contracting
entity and the medical services provider or group of medical services providers.
Proposed law generally prohibits a network from making available medical services to
employees except pursuant to a written contract with a payor. A network-payor contract is
confidential and not subject to disclosure as public record information under any other
applicable law.
Proposed law prohibits a party to a payor-network contract from selling, leasing, or
otherwise transferring information regarding the payment terms of the contract without the
express authority of and prior adequate notification to the other contracting parties.
Proposed law requires that the network's medical services provider panel includes an
adequate number of treating doctors and specialists, and be available and accessible to
injured employees 24 hours a day, seven days a week. Proposed law further requires that the
network include sufficient numbers and types of health care providers to ensure choice,
access, and quality of care to injured employees.
Proposed law further requires that hospital services and emergency care be available and
accessible to injured employees 24 hours a day, seven days a week.
Proposed law authorizes the network to adopt a medical case management program to work
with treating doctors, referral medical services providers, injured employees and employers
to facilitate cost-effective care and employee prompt return-to-work.
Proposed law provides for utilization review in relation to claims in a workers' compensation
medical provider services network. SB NO. 560
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words in boldface type and underscored are additions.
Proposed law authorizes the office of workers' compensation to access information from an
executive agency that is otherwise confidential, in order to implement proposed law.
Proposed law provides that information that is in the possession of the office and that relates
to an individual injured employee, and any compilation, report, or analysis produced from
the information that identifies an individual injured employee, is not subject to discovery,
subpoena, or other means of legal compulsion for release to any person, or admissible in any
civil, administrative, or criminal proceeding, except in connection with any claim for
compensation under proposed law.
Proposed law provides that if the director determines that a network, payer, or any other
person or third party is in violation of proposed law, or applicable provisions of the La.
Workers' Compensation Law or rules adopted pursuant thereto, the director or a designated
representative shall notify the network, payor, person, or third party of the alleged violation
and may compel the production of any documents or other information as necessary to
determine whether the violation occurred.
Proposed law provides for "economic profiling" under certain circumstances. Economic
profiling is defined as any evaluation of a particular physician, medical services provider,
medical group or individual practice association based in whole or in part on the economic
costs or utilization of services associated with medical care provided or authorized by the
physician, medical services provider, medical group or individual practice association.
Proposed law requires the employer that arranges for care for injured workers through a
workers' compensation medical provider network to develop and maintain a written
continuity of care policy and information regarding the process for an injured employee to
request a review under the policy, and further requires that the employer provide, upon
request, a copy of the written policy to an employee.
Proposed law requires the employer to provide completion of treatment under the following
conditions:
1. An acute condition. "An acute condition" means a medical condition that involves
a sudden onset of symptoms due to compensable injury or disease that requires
prompt medical attention and that has a limited duration. Completion of treatment
shall be provided for the duration of the acute condition.
2. A serious chronic condition. "A serious chronic condition" means a medical
condition due to a compensable injury or disease, that is serious in nature and that
persists without full cure, or worsens over an extended period of time, or requires
ongoing treatment to maintain remission or prevent deterioration. Completion of
treatment shall be provided for a period of time necessary to complete a course of
treatment and to arrange for a safe transfer to another medical services provider, as
determined by the payer or employer in consultation with the injured employee and
the terminated medical services provider, and consistent with good professional
practice. Completion of treatment shall not exceed 12 months from the medical
services provider contract termination date.
3. A terminal illness. "A terminal illness" means an incurable or irreversible condition
as a result of a compensable injury or disease that has a high probability of causing
death within one year or less. Completion of treatment shall be provided for the
duration of a terminal illness.
4. Surgery. The performance of a surgery or other procedure that is authorized by the
payor or employer and which is part of a documented course of treatment and which
has been recommended and documented by the medical services provider to occur
within 180 days of the medical services provider contract's termination date. SB NO. 560
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words in boldface type and underscored are additions.
Proposed law requires that supplemental earnings benefits paid to injured workers be paid
monthly.
Proposed law provides that when the employee is no longer temporarily and totally disabled,
but is not earning any income and the employer has not established earning capacity,
payments of benefits shall continue in accordance with present law.
Proposed law increases certain permanent partial disability payments from $30,000 to
$50,000.
Proposed law provides that payments to injured workers begin two weeks after the injury
occurred, if the disability continues.
Effective August 1, 2012.
(Amends R.S. 23:1123, 1124.1, 1201(F)(1), (2) and (4), 1210(A), 1221(3)(a) and (4)(s)(i),
and 1224; adds R.S. 23:1020.1, 1213 through 1213.27, and 1314(D) and (E))