Wisconsin 2023-2024 Regular Session

Wisconsin Assembly Bill AB1074 Compare Versions

Only one version of the bill is available at this time.

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3	3	2023 - 2024 LEGISLATURE
4	4	2023 ASSEMBLY BILL 1074
5	5	February 8, 2024 - Introduced by C OMMITTEE ON LABOR AND INTEGRATED
6	6	EMPLOYMENT. Referred to Committee on Labor and Integrated Employment.
7	7	*AUTHORS SUBJECT TO CHANGE*
8	8	AN ACT to renumber and amend 102.17 (9) (a) 1. and 102.44 (2); to amend
9	9	102.03 (4), 102.13 (2) (c), 102.16 (1m) (a), 102.17 (9) (b) (intro.) and 102.18 (1)
10	10	(bg) 1.; and to create 102.16 (2) (i), 102.17 (9) (a) 1e., 102.17 (9) (a) 1g., 102.423
11	11	and 102.44 (2) (a) 2. of the statutes; relating to: various changes to the worker's
12	12	compensation law, extending the time limit for emergency rule procedures,
13	13	providing an exemption from emergency rule procedures, and granting
14	14	rule-making authority.
15	15	Analysis by the Legislative Reference Bureau
16	16	This bill makes various changes to the worker's compensation law, as
17	17	administered by the Department of Workforce Development and the Division of
18	18	Hearings and Appeals in the Department of Administration.
19	19	Health service fee schedule
20	20	This bill requires DWD, by July 1, 2025, to establish a schedule of the maximum
21	21	fees that a health care provider may charge an employer or insurer for health
22	22	services provided to an injured employee who claims worker's compensation
23	23	benefits. Under the bill, DWD must, when that schedule is established, send a notice
24	24	to the Legislative Reference Bureau, and the LRB must publish that notice in the
25	25	Wisconsin Administrative Register. The reasonableness of the health service fee
26	26	dispute resolution process under current law does not apply to health services
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35	35	ASSEMBLY BILL 1074
36	36	provided on or after the date specified in the notice. The liability of an employer or
37	37	insurer for a health service included in the fee schedule is then limited to the
38	38	maximum fee allowed under the schedule for the health service as of the date on
39	39	which the health service was provided, any fee agreed to by contract between the
40	40	employer or insurer and health care provider for the health service as of that date,
41	41	or the health care provider's actual fee for the health service as of that date,
42	42	whichever is less.
43	43	The bill requires DWD, in determining those maximum fees, to divide the state
44	44	into five regions based on geographical and economic similarity, including similarity
45	45	in the cost of health services, and, for each region, to do the following: 1) determine
46	46	the average payment made by insured and self-insured group health plans, and the
47	47	average copayment, coinsurance, and deductible payment made by persons covered
48	48	under those plans, for each health service included in the schedule and 2) set the
49	49	maximum fee for each health service included in the schedule at 110 percent of the
50	50	sum of that average payment and that average copayment, coinsurance, and
51	51	deductible payment.
52	52	The bill also requires DWD to adjust those maximum fees annually by the
53	53	change in the consumer price index for medical care services and, no less often than
54	54	every two years, to redetermine the average payment made by group health plans
55	55	for the services included in the schedule and revise those maximum fees based on
56	56	that redetermined average.
57	57	The bill provides, however, that DWD may not implement the initial fee
58	58	schedule or a revised fee schedule unless the schedule or revised schedule is
59	59	approved by the Council on Worker's Compensation.
60	60	Indexing of permanent total disability benefits
61	61	Under current law, subject to certain exceptions, the amount of an injured
62	62	employee's worker's compensation benefits is determined in accordance with the law
63	63	that is in effect as of the date of injury, regardless of the length of time that has
64	64	elapsed since that date. For permanent total disability benefits, the amount of
65	65	benefits is determined based upon the employee's average weekly earnings, up to a
66	66	maximum that is determined based upon 110 percent of the state's average weekly
67	67	earnings. This determination of the state's overall average weekly earnings is
68	68	revised each calendar year.
69	69	This bill provides for the indexing of the weekly benefit for permanent total
70	70	disability resulting from an injury that occurs on or after January 1, 2024.
71	71	Specifically, under the bill, the benefits for an injured employee who is receiving
72	72	worker's compensation for permanent total disability resulting from an injury that
73	73	occurs on or after January 1, 2024, are, beginning with the sixth anniversary of the
74	74	date of injury and then annually thereafter, increased to a corresponding higher rate
75	75	for that year.
76	76	Expansion of PTSD coverage for first responders
77	77	This bill makes changes to the conditions of liability for worker's compensation
78	78	benefits for emergency medical responders, emergency medical services
79	79	practitioners, and volunteer and part-time fire fighters who are diagnosed with
80	80	post-traumatic stress disorder (PTSD). - 3 -2023 - 2024 Legislature
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83	83	ASSEMBLY BILL 1074
84	84	Under current law, if a law enforcement officer or full-time fire fighter is
85	85	diagnosed with PTSD by a licensed psychiatrist or psychologist, and the mental
86	86	injury that resulted in that diagnosis is not accompanied by a physical injury, that
87	87	law enforcement officer or fire fighter can bring a claim for worker's compensation
88	88	benefits if the conditions of liability are proven by the preponderance of the evidence
89	89	and the mental injury is not the result of a good faith employment action by the
90	90	person's employer. Also under current law, liability for such treatment for a mental
91	91	injury is limited to no more than 32 weeks after the injury is first reported.
92	92	Under current law, an injured emergency medical responder, emergency
93	93	medical services practitioner, or volunteer or part-time fire fighter who does not have
94	94	an accompanying physical injury must demonstrate a diagnosis based on unusual
95	95	stress of greater dimensions than the day-to-day emotional strain and tension
96	96	experienced by all employees as required under School District No. 1 v. DILHR, 62
97	97	Wis. 2d 370, 215 N.W.2d 373 (1974), in order to receive worker's compensation
98	98	benefits for PTSD. Under the bill, such an injured emergency medical responder,
99	99	emergency medical services practitioner, or volunteer or part-time fire fighter is not
100	100	required to demonstrate a diagnosis based on that standard and instead must
101	101	demonstrate a diagnosis based on the same standard as law enforcement officers and
102	102	full-time fire fighters. Finally, under the bill, an emergency medical responder,
103	103	emergency medical services practitioner, or volunteer or part-time fire fighter is
104	104	restricted to compensation for a mental injury that is not accompanied by a physical
105	105	injury and that results in a diagnosis of PTSD three times in his or her lifetime
106	106	irrespective of a change of employer or employment in the same manner as law
107	107	enforcement officers and full-time fire fighters.
108	108	For further information see the state and local fiscal estimate, which will be
109	109	printed as an appendix to this bill.
110	110	The people of the state of Wisconsin, represented in senate and assembly, do
111	111	enact as follows:
112	112	SECTION 1. 102.03 (4) of the statutes is amended to read:
113	113	102.03 (4) The right to compensation and the amount of the compensation shall
114	114	in all cases be determined in accordance with the provisions of law in effect as of the
115	115	date of the injury except as to employees whose rate of compensation is changed as
116	116	provided in s. 102.43 (5) (c) or (7) or 102.44 (1), (2) (a) 2., or (5) and employees who
117	117	are eligible to receive private rehabilitative counseling and rehabilitative training
118	118	under s. 102.61 (1m) and except as provided in s. 102.555 (12) (b).
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127	127	SECTION 2 ASSEMBLY BILL 1074
128	128	SECTION 2. 102.13 (2) (c) of the statutes is amended to read:
129	129	102.13 (2) (c) Except as provided in this paragraph, if an injured employee has
130	130	a period of temporary disability that exceeds 3 weeks or a permanent disability, if the
131	131	injured employee has undergone surgery to treat his or her injury, other than surgery
132	132	to correct a hernia, or if the injured employee sustained an eye injury requiring
133	133	medical treatment on 3 or more occasions off the employer's premises, the
134	134	department may by rule require the insurer or self-insured employer to submit to
135	135	the department a final report of the employee's treating practitioner. The
136	136	department may not require an insurer or self-insured employer to submit to the
137	137	department a final report of an employee's treating practitioner when the insurer or
138	138	self-insured employer denies the employee's claim for compensation in its entirety
139	139	and the employee does not contest that denial. A treating practitioner shall complete
140	140	a final report on a timely basis and may charge a reasonable fee for the completion
141	141	of the final report, not to exceed $100, but may not require prepayment of that fee.
142	142	An Subject to s. 102.16 (2) (i), an insurer or self-insured employer that disputes the
143	143	reasonableness of a fee charged for the completion of a treatment practitioner's final
144	144	report may submit that dispute to the department for resolution under s. 102.16 (2).
145	145	SECTION 3. 102.16 (1m) (a) of the statutes is amended to read:
146	146	102.16 (1m) (a) If an insurer or self-insured employer concedes by compromise
147	147	under sub. (1) or stipulation under s. 102.18 (1) (a) that the insurer or self-insured
148	148	employer is liable under this chapter for any health services provided to an injured
149	149	employee by a health service provider, but disputes the reasonableness of the fee
150	150	charged by the health service provider, the department or the division may include
151	151	in its order confirming the compromise or stipulation a determination made by the
152	152	department under sub. (2) as to the reasonableness of the fee or, if such a
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180	180	SECTION 3
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182	182	determination has not yet been made, the department or the division may notify, or
183	183	direct the insurer or self-insured employer to notify, the health service provider
184	184	under sub. (2) (b) that the reasonableness of the fee is in dispute. The department
185	185	or the division shall deny payment of a health service fee that the department
186	186	determines under sub. (2) to be unreasonable. A health service provider and an
187	187	insurer or self-insured employer that are parties to a fee dispute under this
188	188	paragraph are bound by the department's determination under sub. (2) on the
189	189	reasonableness of the disputed fee, unless that determination is set aside, reversed,
190	190	or modified by the department under sub. (2) (f) or is set aside on judicial review as
191	191	provided in sub. (2) (f). This paragraph does not apply to a health service provided
192	192	to an injured employee beginning on the date specified in the notice published in the
193	193	Wisconsin Administrative Register under s. 102.423 (1) (a).
194	194	SECTION 4. 102.16 (2) (i) of the statutes is created to read:
195	195	102.16 (2) (i) This subsection does not apply to a health service provided to an
196	196	injured employee beginning on the date specified in the notice published in the
197	197	Wisconsin Administrative Register under s. 102.423 (1) (a).
198	198	SECTION 5. 102.17 (9) (a) 1. of the statutes is renumbered 102.17 (9) (a) 1m. and
199	199	amended to read:
200	200	102.17 (9) (a) 1m. “Fire fighter" means any person employed on a full-time or
201	201	part-time basis by the state or any political subdivision as a member or officer of a
202	202	fire department, including the 1st class cities and state fire marshal and deputies,
203	203	or an individual who volunteers as a member or officer of such a department.
204	204	SECTION 6. 102.17 (9) (a) 1e. of the statutes is created to read:
205	205	102.17 (9) (a) 1e. “Emergency medical responder” has the meaning given in s.
206	206	256.01 (4p).
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233	233	SECTION 7 ASSEMBLY BILL 1074
234	234	SECTION 7. 102.17 (9) (a) 1g. of the statutes is created to read:
235	235	102.17 (9) (a) 1g. “Emergency medical services practitioner” has the meaning
236	236	given in s. 256.01 (5).
237	237	SECTION 8. 102.17 (9) (b) (intro.) of the statutes is amended to read:
238	238	102.17 (9) (b) (intro.) Subject to par. (c), in the case of a mental injury that is
239	239	not accompanied by a physical injury and that results in a diagnosis of
240	240	post-traumatic stress disorder in a law enforcement officer, as defined in s. 23.33 (1)
241	241	(ig), an emergency medical responder, an emergency medical services practitioner,
242	242	or a fire fighter, the claim for compensation for the mental injury, in order to be
243	243	compensable under this chapter, is subject to all of the following:
244	244	SECTION 9. 102.18 (1) (bg) 1. of the statutes is amended to read:
245	245	102.18 (1) (bg) 1. If the division finds under par. (b) that an insurer or
246	246	self-insured employer is liable under this chapter for any health services provided
247	247	to an injured employee by a health service provider, but that the reasonableness of
248	248	the fee charged by the health service provider is in dispute, the division may include
249	249	in its order under par. (b) a determination made by the department under s. 102.16
250	250	(2) as to the reasonableness of the fee or, if such a determination has not yet been
251	251	made, the division may notify, or direct the insurer or self-insured employer to notify,
252	252	the health service provider under s. 102.16 (2) (b) that the reasonableness of the fee
253	253	is in dispute. This subdivision does not apply to a health service provided to an
254	254	injured employee beginning on the date specified in the notice published in the
255	255	Wisconsin Administrative Register under s. 102.423 (1) (a).
256	256	SECTION 10. 102.423 of the statutes is created to read:
257	257	102.423 Health service fee schedule. (1) ESTABLISHMENT OF SCHEDULE. (a)
258	258	By July 1, 2025, the department shall establish a schedule of the maximum fees that
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286	286	SECTION 10
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288	288	a health care provider may charge an employer or insurer for health services
289	289	provided to an injured employee who claims benefits under this chapter. When the
290	290	schedule is established, the department shall send a notice to the legislative
291	291	reference bureau for publication in the Wisconsin Administrative Register of the
292	292	date that the schedule will be effective. In determining the maximum fees, the
293	293	department shall divide the state into 5 regions based on geographical and economic
294	294	similarity, including similarity in the cost of health services, and, for each region,
295	295	shall do all of the following:
296	296	1. Determine the average payment made by group health benefit plans, as
297	297	defined in s. 632.745 (9), group health plans, as defined in s. 632.745 (10), and
298	298	self-insured health plans, as defined in s. 632.745 (24), and the average copayment,
299	299	coinsurance, and deductible payment made by persons covered under those plans,
300	300	for each health service included in the schedule based on health service payment
301	301	data obtained from the Wisconsin Health Information Organization, the Workers
302	302	Compensation Research Institute, health insurers and health plan sponsors, the
303	303	group health insurance plan under subch. IV of ch. 40, and other sources determined
304	304	by the department to be credible.
305	305	2. Set the maximum fee for each health service included in the schedule at 110
306	306	percent of the sum of the average payment for the health service and the average
307	307	copayment, coinsurance, and deductible payment for the health service, as
308	308	determined under subd. 1.
309	309	(b) 1. In this paragraph, “consumer price index" means the average of the
310	310	consumer price index for medical care services over each 12-month period for all
311	311	urban consumers, U.S. city average, as determined by the bureau of labor statistics
312	312	of the federal department of labor.
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339	339	SECTION 10 ASSEMBLY BILL 1074
340	340	2. On each July 1, beginning on July 1, 2026, the department shall adjust the
341	341	maximum fees established under par. (a) by the percentage difference between the
342	342	consumer price index for the 12-month period ending on December 31 of the
343	343	preceding year and the consumer price index for the 12-month period ending on
344	344	December 31 of the year before the preceding year.
345	345	(c) No less often than every 2 years, the department shall redetermine the
346	346	schedule of maximum fees using the procedures specified in par. (a), subject to par.
347	347	(d).
348	348	(d) Notwithstanding pars. (a) to (c), the department may not implement the fee
349	349	schedule established under par. (a) or revise the schedule under par. (c) unless the
350	350	schedule or revised schedule is approved by the council on worker's compensation.
351	351	(e) The department shall publish the current fee schedule established under
352	352	this subsection on the department's website. Notwithstanding s. 227.10 (1), the fee
353	353	schedule need not be promulgated as a rule.
354	354	(2) LIABILITY OF EMPLOYER OR INSURER. (a) The liability of an employer or insurer
355	355	for a health service included in the fee schedule established under sub. (1) is limited
356	356	to the maximum fee allowed under the schedule for the health service as of the date
357	357	on which the health service was provided, any fee agreed to by contract between the
358	358	employer or insurer and health care provider for the health service as of that date,
359	359	or the health care provider's actual fee for the health service as of that date,
360	360	whichever is less.
361	361	(b) A health care provider that provides health services to an injured employee
362	362	under this chapter may not collect, or bring an action to collect, from the injured
363	363	employee any charge that is in excess of the liability of the employer or insurer under
364	364	this subsection.
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392	392	SECTION 10
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394	394	(c) A schedule of maximum fees establish under sub. (1) first applies to a health
395	395	service provided to an injured employee on the date specified in the notice published
396	396	under sub. (1) (a).
397	397	(3) RULES. The department shall promulgate rules to implement this section.
398	398	SECTION 11. 102.44 (2) of the statutes is renumbered 102.44 (2) (a) 1. and
399	399	amended to read:
400	400	102.44 (2) (a) 1. In case of permanent total disability, aggregate indemnity shall
401	401	be weekly indemnity for the period that the employee may live, subject to increase
402	402	under subd. 2.
403	403	(b) 1. Total impairment for industrial use of both eyes, the loss of both arms at
404	404	or near the shoulder, the loss of both legs at or near the hip, or the loss of one arm
405	405	at the shoulder and one leg at the hip constitutes permanent total disability. This
406	406	2. The enumeration under subd. 1. is not exclusive, but in other cases the
407	407	division shall find the facts.
408	408	SECTION 12. 102.44 (2) (a) 2. of the statutes is created to read:
409	409	102.44 (2) (a) 2. For injuries occurring on or after January 1, 2024, weekly
410	410	indemnity for permanent total disability shall, beginning with the 6th anniversary
411	411	of the date of injury and then annually thereafter on that anniversary, be increased
412	412	as follows:
413	413	a. If the employee was receiving the maximum compensation rate, the
414	414	employee's weekly indemnity shall be increased to the maximum compensation rate
415	415	then in effect for that year, as determined under s. 102.11 (1).
416	416	b. If the employee was receiving less than the maximum compensation rate, the
417	417	employee's weekly indemnity shall be increased to an amount that bears the same
418	418	proportion to the maximum compensation rate then in effect for that year, as
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445	445	SECTION 12 ASSEMBLY BILL 1074
446	446	determined under s. 102.11 (1), as the employee's compensation rate bore to the
447	447	maximum compensation rate that was in effect at the time of the injury.
448	448	SECTION 13.0Nonstatutory provisions.
449	449	(1) EMERGENCY RULES; HEALTH SERVICE FEE SCHEDULE. Using the procedure under
450	450	s. 227.24, the department of workforce development may promulgate rules required
451	451	under s. 102.423 (3) as emergency rules. Notwithstanding s. 227.24 (1) (c) and (2),
452	452	emergency rules promulgated under this subsection remain in effect until July 1,
453	453	2026, or the date on which permanent rules take effect, whichever is sooner.
454	454	Notwithstanding s. 227.24 (1) (a) and (3), the department is not required to provide
455	455	evidence that promulgating a rule under this subsection as an emergency rule is
456	456	necessary for the preservation of the public peace, health, safety, or welfare and is
457	457	not required to provide a finding of emergency for a rule promulgated under this
458	458	subsection.
459	459	(END)
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