Wisconsin 2023-2024 Regular Session

Wisconsin Senate Bill SB992 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 SENATE BILL 992
5	5	February 7, 2024 - Introduced by COMMITTEE ON LABOR, REGULATORY REFORM,
6	6	VETERANS AND MILITARY AFFAIRS. Referred to Committee on Labor, Regulatory
7	7	Reform, Veterans and Military Affairs.
8	8	*AUTHORS SUBJECT TO CHANGE*
9	9	AN ACT to renumber and amend 102.17 (9) (a) 1. and 102.44 (2); to amend
10	10	102.03 (4), 102.13 (2) (c), 102.16 (1m) (a), 102.17 (9) (b) (intro.) and 102.18 (1)
11	11	(bg) 1.; and to create 102.16 (2) (i), 102.17 (9) (a) 1e., 102.17 (9) (a) 1g., 102.423
12	12	and 102.44 (2) (a) 2. of the statutes; relating to: various changes to the worker's
13	13	compensation law, extending the time limit for emergency rule procedures,
14	14	providing an exemption from emergency rule procedures, and granting
15	15	rule-making authority.
16	16	Analysis by the Legislative Reference Bureau
17	17	This bill makes various changes to the worker's compensation law, as
18	18	administered by the Department of Workforce Development and the Division of
19	19	Hearings and Appeals in the Department of Administration.
20	20	Health service fee schedule
21	21	This bill requires DWD, by July 1, 2025, to establish a schedule of the maximum
22	22	fees that a health care provider may charge an employer or insurer for health
23	23	services provided to an injured employee who claims worker's compensation
24	24	benefits. Under the bill, DWD must, when that schedule is established, send a notice
25	25	to the Legislative Reference Bureau, and the LRB must publish that notice in the
26	26	Wisconsin Administrative Register. The reasonableness of the health service fee
27	27	dispute resolution process under current law does not apply to health services
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36	36	SENATE BILL 992
37	37	provided on or after the date specified in the notice. The liability of an employer or
38	38	insurer for a health service included in the fee schedule is then limited to the
39	39	maximum fee allowed under the schedule for the health service as of the date on
40	40	which the health service was provided, any fee agreed to by contract between the
41	41	employer or insurer and health care provider for the health service as of that date,
42	42	or the health care provider's actual fee for the health service as of that date,
43	43	whichever is less.
44	44	The bill requires DWD, in determining those maximum fees, to divide the state
45	45	into five regions based on geographical and economic similarity, including similarity
46	46	in the cost of health services, and, for each region, to do the following: 1) determine
47	47	the average payment made by insured and self-insured group health plans, and the
48	48	average copayment, coinsurance, and deductible payment made by persons covered
49	49	under those plans, for each health service included in the schedule and 2) set the
50	50	maximum fee for each health service included in the schedule at 110 percent of the
51	51	sum of that average payment and that average copayment, coinsurance, and
52	52	deductible payment.
53	53	The bill also requires DWD to adjust those maximum fees annually by the
54	54	change in the consumer price index for medical care services and, no less often than
55	55	every two years, to redetermine the average payment made by group health plans
56	56	for the services included in the schedule and revise those maximum fees based on
57	57	that redetermined average.
58	58	The bill provides, however, that DWD may not implement the initial fee
59	59	schedule or a revised fee schedule unless the schedule or revised schedule is
60	60	approved by the Council on Worker's Compensation.
61	61	Indexing of permanent total disability benefits
62	62	Under current law, subject to certain exceptions, the amount of an injured
63	63	employee's worker's compensation benefits is determined in accordance with the law
64	64	that is in effect as of the date of injury, regardless of the length of time that has
65	65	elapsed since that date. For permanent total disability benefits, the amount of
66	66	benefits is determined based upon the employee's average weekly earnings, up to a
67	67	maximum that is determined based upon 110 percent of the state's average weekly
68	68	earnings. This determination of the state's overall average weekly earnings is
69	69	revised each calendar year.
70	70	This bill provides for the indexing of the weekly benefit for permanent total
71	71	disability resulting from an injury that occurs on or after January 1, 2024.
72	72	Specifically, under the bill, the benefits for an injured employee who is receiving
73	73	worker's compensation for permanent total disability resulting from an injury that
74	74	occurs on or after January 1, 2024, are, beginning with the sixth anniversary of the
75	75	date of injury and then annually thereafter, increased to a corresponding higher rate
76	76	for that year.
77	77	Expansion of PTSD coverage for first responders
78	78	This bill makes changes to the conditions of liability for worker's compensation
79	79	benefits for emergency medical responders, emergency medical services
80	80	practitioners, and volunteer and part-time fire fighters who are diagnosed with
81	81	post-traumatic stress disorder (PTSD). - 3 -2023 - 2024 Legislature
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85	85	Under current law, if a law enforcement officer or full-time fire fighter is
86	86	diagnosed with PTSD by a licensed psychiatrist or psychologist, and the mental
87	87	injury that resulted in that diagnosis is not accompanied by a physical injury, that
88	88	law enforcement officer or fire fighter can bring a claim for worker's compensation
89	89	benefits if the conditions of liability are proven by the preponderance of the evidence
90	90	and the mental injury is not the result of a good faith employment action by the
91	91	person's employer. Also under current law, liability for such treatment for a mental
92	92	injury is limited to no more than 32 weeks after the injury is first reported.
93	93	Under current law, an injured emergency medical responder, emergency
94	94	medical services practitioner, or volunteer or part-time fire fighter who does not have
95	95	an accompanying physical injury must demonstrate a diagnosis based on unusual
96	96	stress of greater dimensions than the day-to-day emotional strain and tension
97	97	experienced by all employees as required under School District No. 1 v. DILHR, 62
98	98	Wis. 2d 370, 215 N.W.2d 373 (1974), in order to receive worker's compensation
99	99	benefits for PTSD. Under the bill, such an injured emergency medical responder,
100	100	emergency medical services practitioner, or volunteer or part-time fire fighter is not
101	101	required to demonstrate a diagnosis based on that standard and instead must
102	102	demonstrate a diagnosis based on the same standard as law enforcement officers and
103	103	full-time fire fighters. Finally, under the bill, an emergency medical responder,
104	104	emergency medical services practitioner, or volunteer or part-time fire fighter is
105	105	restricted to compensation for a mental injury that is not accompanied by a physical
106	106	injury and that results in a diagnosis of PTSD three times in his or her lifetime
107	107	irrespective of a change of employer or employment in the same manner as law
108	108	enforcement officers and full-time fire fighters.
109	109	For further information see the state and local fiscal estimate, which will be
110	110	printed as an appendix to this bill.
111	111	The people of the state of Wisconsin, represented in senate and assembly, do
112	112	enact as follows:
113	113	SECTION 1. 102.03 (4) of the statutes is amended to read:
114	114	102.03 (4) The right to compensation and the amount of the compensation shall
115	115	in all cases be determined in accordance with the provisions of law in effect as of the
116	116	date of the injury except as to employees whose rate of compensation is changed as
117	117	provided in s. 102.43 (5) (c) or (7) or 102.44 (1), (2) (a) 2., or (5) and employees who
118	118	are eligible to receive private rehabilitative counseling and rehabilitative training
119	119	under s. 102.61 (1m) and except as provided in s. 102.555 (12) (b).
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128	128	SECTION 2 SENATE BILL 992
129	129	SECTION 2. 102.13 (2) (c) of the statutes is amended to read:
130	130	102.13 (2) (c) Except as provided in this paragraph, if an injured employee has
131	131	a period of temporary disability that exceeds 3 weeks or a permanent disability, if the
132	132	injured employee has undergone surgery to treat his or her injury, other than surgery
133	133	to correct a hernia, or if the injured employee sustained an eye injury requiring
134	134	medical treatment on 3 or more occasions off the employer's premises, the
135	135	department may by rule require the insurer or self-insured employer to submit to
136	136	the department a final report of the employee's treating practitioner. The
137	137	department may not require an insurer or self-insured employer to submit to the
138	138	department a final report of an employee's treating practitioner when the insurer or
139	139	self-insured employer denies the employee's claim for compensation in its entirety
140	140	and the employee does not contest that denial. A treating practitioner shall complete
141	141	a final report on a timely basis and may charge a reasonable fee for the completion
142	142	of the final report, not to exceed $100, but may not require prepayment of that fee.
143	143	An Subject to s. 102.16 (2) (i), an insurer or self-insured employer that disputes the
144	144	reasonableness of a fee charged for the completion of a treatment practitioner's final
145	145	report may submit that dispute to the department for resolution under s. 102.16 (2).
146	146	SECTION 3. 102.16 (1m) (a) of the statutes is amended to read:
147	147	102.16 (1m) (a) If an insurer or self-insured employer concedes by compromise
148	148	under sub. (1) or stipulation under s. 102.18 (1) (a) that the insurer or self-insured
149	149	employer is liable under this chapter for any health services provided to an injured
150	150	employee by a health service provider, but disputes the reasonableness of the fee
151	151	charged by the health service provider, the department or the division may include
152	152	in its order confirming the compromise or stipulation a determination made by the
153	153	department under sub. (2) as to the reasonableness of the fee or, if such a
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181	181	SECTION 3
182	182	SENATE BILL 992
183	183	determination has not yet been made, the department or the division may notify, or
184	184	direct the insurer or self-insured employer to notify, the health service provider
185	185	under sub. (2) (b) that the reasonableness of the fee is in dispute. The department
186	186	or the division shall deny payment of a health service fee that the department
187	187	determines under sub. (2) to be unreasonable. A health service provider and an
188	188	insurer or self-insured employer that are parties to a fee dispute under this
189	189	paragraph are bound by the department's determination under sub. (2) on the
190	190	reasonableness of the disputed fee, unless that determination is set aside, reversed,
191	191	or modified by the department under sub. (2) (f) or is set aside on judicial review as
192	192	provided in sub. (2) (f). This paragraph does not apply to a health service provided
193	193	to an injured employee beginning on the date specified in the notice published in the
194	194	Wisconsin Administrative Register under s. 102.423 (1) (a).
195	195	SECTION 4. 102.16 (2) (i) of the statutes is created to read:
196	196	102.16 (2) (i) This subsection does not apply to a health service provided to an
197	197	injured employee beginning on the date specified in the notice published in the
198	198	Wisconsin Administrative Register under s. 102.423 (1) (a).
199	199	SECTION 5. 102.17 (9) (a) 1. of the statutes is renumbered 102.17 (9) (a) 1m. and
200	200	amended to read:
201	201	102.17 (9) (a) 1m. “Fire fighter" means any person employed on a full-time or
202	202	part-time basis by the state or any political subdivision as a member or officer of a
203	203	fire department, including the 1st class cities and state fire marshal and deputies,
204	204	or an individual who volunteers as a member or officer of such a department.
205	205	SECTION 6. 102.17 (9) (a) 1e. of the statutes is created to read:
206	206	102.17 (9) (a) 1e. “Emergency medical responder” has the meaning given in s.
207	207	256.01 (4p).
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234	234	SECTION 7 SENATE BILL 992
235	235	SECTION 7. 102.17 (9) (a) 1g. of the statutes is created to read:
236	236	102.17 (9) (a) 1g. “Emergency medical services practitioner” has the meaning
237	237	given in s. 256.01 (5).
238	238	SECTION 8. 102.17 (9) (b) (intro.) of the statutes is amended to read:
239	239	102.17 (9) (b) (intro.) Subject to par. (c), in the case of a mental injury that is
240	240	not accompanied by a physical injury and that results in a diagnosis of
241	241	post-traumatic stress disorder in a law enforcement officer, as defined in s. 23.33 (1)
242	242	(ig), an emergency medical responder, an emergency medical services practitioner,
243	243	or a fire fighter, the claim for compensation for the mental injury, in order to be
244	244	compensable under this chapter, is subject to all of the following:
245	245	SECTION 9. 102.18 (1) (bg) 1. of the statutes is amended to read:
246	246	102.18 (1) (bg) 1. If the division finds under par. (b) that an insurer or
247	247	self-insured employer is liable under this chapter for any health services provided
248	248	to an injured employee by a health service provider, but that the reasonableness of
249	249	the fee charged by the health service provider is in dispute, the division may include
250	250	in its order under par. (b) a determination made by the department under s. 102.16
251	251	(2) as to the reasonableness of the fee or, if such a determination has not yet been
252	252	made, the division may notify, or direct the insurer or self-insured employer to notify,
253	253	the health service provider under s. 102.16 (2) (b) that the reasonableness of the fee
254	254	is in dispute. This subdivision does not apply to a health service provided to an
255	255	injured employee beginning on the date specified in the notice published in the
256	256	Wisconsin Administrative Register under s. 102.423 (1) (a).
257	257	SECTION 10. 102.423 of the statutes is created to read:
258	258	102.423 Health service fee schedule. (1) ESTABLISHMENT OF SCHEDULE. (a)
259	259	By July 1, 2025, the department shall establish a schedule of the maximum fees that
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287	287	SECTION 10
288	288	SENATE BILL 992
289	289	a health care provider may charge an employer or insurer for health services
290	290	provided to an injured employee who claims benefits under this chapter. When the
291	291	schedule is established, the department shall send a notice to the legislative
292	292	reference bureau for publication in the Wisconsin Administrative Register of the
293	293	date that the schedule will be effective. In determining the maximum fees, the
294	294	department shall divide the state into 5 regions based on geographical and economic
295	295	similarity, including similarity in the cost of health services, and, for each region,
296	296	shall do all of the following:
297	297	1. Determine the average payment made by group health benefit plans, as
298	298	defined in s. 632.745 (9), group health plans, as defined in s. 632.745 (10), and
299	299	self-insured health plans, as defined in s. 632.745 (24), and the average copayment,
300	300	coinsurance, and deductible payment made by persons covered under those plans,
301	301	for each health service included in the schedule based on health service payment
302	302	data obtained from the Wisconsin Health Information Organization, the Workers
303	303	Compensation Research Institute, health insurers and health plan sponsors, the
304	304	group health insurance plan under subch. IV of ch. 40, and other sources determined
305	305	by the department to be credible.
306	306	2. Set the maximum fee for each health service included in the schedule at 110
307	307	percent of the sum of the average payment for the health service and the average
308	308	copayment, coinsurance, and deductible payment for the health service, as
309	309	determined under subd. 1.
310	310	(b) 1. In this paragraph, “consumer price index" means the average of the
311	311	consumer price index for medical care services over each 12-month period for all
312	312	urban consumers, U.S. city average, as determined by the bureau of labor statistics
313	313	of the federal department of labor.
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340	340	SECTION 10 SENATE BILL 992
341	341	2. On each July 1, beginning on July 1, 2026, the department shall adjust the
342	342	maximum fees established under par. (a) by the percentage difference between the
343	343	consumer price index for the 12-month period ending on December 31 of the
344	344	preceding year and the consumer price index for the 12-month period ending on
345	345	December 31 of the year before the preceding year.
346	346	(c) No less often than every 2 years, the department shall redetermine the
347	347	schedule of maximum fees using the procedures specified in par. (a), subject to par.
348	348	(d).
349	349	(d) Notwithstanding pars. (a) to (c), the department may not implement the fee
350	350	schedule established under par. (a) or revise the schedule under par. (c) unless the
351	351	schedule or revised schedule is approved by the council on worker's compensation.
352	352	(e) The department shall publish the current fee schedule established under
353	353	this subsection on the department's website. Notwithstanding s. 227.10 (1), the fee
354	354	schedule need not be promulgated as a rule.
355	355	(2) LIABILITY OF EMPLOYER OR INSURER. (a) The liability of an employer or insurer
356	356	for a health service included in the fee schedule established under sub. (1) is limited
357	357	to the maximum fee allowed under the schedule for the health service as of the date
358	358	on which the health service was provided, any fee agreed to by contract between the
359	359	employer or insurer and health care provider for the health service as of that date,
360	360	or the health care provider's actual fee for the health service as of that date,
361	361	whichever is less.
362	362	(b) A health care provider that provides health services to an injured employee
363	363	under this chapter may not collect, or bring an action to collect, from the injured
364	364	employee any charge that is in excess of the liability of the employer or insurer under
365	365	this subsection.
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393	393	SECTION 10
394	394	SENATE BILL 992
395	395	(c) A schedule of maximum fees establish under sub. (1) first applies to a health
396	396	service provided to an injured employee on the date specified in the notice published
397	397	under sub. (1) (a).
398	398	(3) RULES. The department shall promulgate rules to implement this section.
399	399	SECTION 11. 102.44 (2) of the statutes is renumbered 102.44 (2) (a) 1. and
400	400	amended to read:
401	401	102.44 (2) (a) 1. In case of permanent total disability, aggregate indemnity shall
402	402	be weekly indemnity for the period that the employee may live, subject to increase
403	403	under subd. 2.
404	404	(b) 1. Total impairment for industrial use of both eyes, the loss of both arms at
405	405	or near the shoulder, the loss of both legs at or near the hip, or the loss of one arm
406	406	at the shoulder and one leg at the hip constitutes permanent total disability. This
407	407	2. The enumeration under subd. 1. is not exclusive, but in other cases the
408	408	division shall find the facts.
409	409	SECTION 12. 102.44 (2) (a) 2. of the statutes is created to read:
410	410	102.44 (2) (a) 2. For injuries occurring on or after January 1, 2024, weekly
411	411	indemnity for permanent total disability shall, beginning with the 6th anniversary
412	412	of the date of injury and then annually thereafter on that anniversary, be increased
413	413	as follows:
414	414	a. If the employee was receiving the maximum compensation rate, the
415	415	employee's weekly indemnity shall be increased to the maximum compensation rate
416	416	then in effect for that year, as determined under s. 102.11 (1).
417	417	b. If the employee was receiving less than the maximum compensation rate, the
418	418	employee's weekly indemnity shall be increased to an amount that bears the same
419	419	proportion to the maximum compensation rate then in effect for that year, as
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446	446	SECTION 12 SENATE BILL 992
447	447	determined under s. 102.11 (1), as the employee's compensation rate bore to the
448	448	maximum compensation rate that was in effect at the time of the injury.
449	449	SECTION 13.0Nonstatutory provisions.
450	450	(1) EMERGENCY RULES; HEALTH SERVICE FEE SCHEDULE. Using the procedure under
451	451	s. 227.24, the department of workforce development may promulgate rules required
452	452	under s. 102.423 (3) as emergency rules. Notwithstanding s. 227.24 (1) (c) and (2),
453	453	emergency rules promulgated under this subsection remain in effect until July 1,
454	454	2026, or the date on which permanent rules take effect, whichever is sooner.
455	455	Notwithstanding s. 227.24 (1) (a) and (3), the department is not required to provide
456	456	evidence that promulgating a rule under this subsection as an emergency rule is
457	457	necessary for the preservation of the public peace, health, safety, or welfare and is
458	458	not required to provide a finding of emergency for a rule promulgated under this
459	459	subsection.
460	460	(END)
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