H. B. 4134


(By Mr. Speaker, Mr. Kiss (By Request))
[Introduced January 24, 2000; referred to the
Committee on the Judiciary.]




A BILL to amend and reenact section three, article four, chapter twenty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to disbursements for medical, surgical, dental and hospital treatment under workers' compensation; and providing that the division must inform providers if payment for specific services or treatment will no longer be made.

Be it enacted by the Legislature of West Virginia:
That section three, article four, chapter twenty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-3. Schedule of maximum disbursements for medical, surgical, dental and hospital treatment; legislative approval; guidelines; preferred provider agreements; charges in excess of scheduled amounts not to be made; required disclosure of financial interest in sale or rental of medically related mechanical appliances or devices; promulgation of rules to enforce requirement; consequences of failure to disclose; contract by employer with hospital, physician, etc., prohibited; criminal penalties for violation; payments to certain providers prohibited; medical cost and care programs; payments; interlocutory orders.

(a) The workers' compensation division shall establish and alter from time to time as the division may determine to be appropriate a schedule of the maximum reasonable amounts to be paid to health care providers, providers of rehabilitation services, providers of durable medical and other goods and providers of other supplies and medically related items or other persons, firms or corporations for the rendering of treatment or services to injured employees under this chapter: Provided, That if the division alters its schedule of maximum reasonable amounts to be paid for the rendering of treatment or services to injured employees by eliminating any treatment or services that were previously determined to be appropriate, the division shall notify all health care providers, providers of rehabilitation services, providers of durable medical services and other goods and providers of other supplies and medically related items of the eliminated treatment or services at least ten days before the elimination from the schedule is to take place. The division also, on the first day of each regular session and also from time to time, as the division may consider appropriate, shall submit the schedule, with any changes thereto, to the Legislature. The promulgation of the schedule is not subject to the legislative rule-making review procedures established in sections nine through sixteen, article three, chapter twenty-nine-a of this code.
The division shall disburse and pay from the fund for such personal injuries to such employees as may be entitled thereto hereunder as follows:
(1) Such sums for health care services, rehabilitation services, durable medical and other goods and other supplies and medically related items as may be reasonably required. The division shall determine that which is reasonably required within the meaning of this section in accordance with the guidelines developed by the health care advisory panel pursuant to section three-b of this article: Provided, That nothing herein shall prevent the implementation of guidelines applicable to a particular type of treatment or service or to a particular type of injury before guidelines have been developed for other types of treatment or services or injuries: Provided, however, That any guidelines for utilization review which are developed in addition to the guidelines provided for in said section may be utilized by the division until superseded by guidelines developed by the health care advisory panel pursuant to said section. Each health care provider who seeks to provide services or treatment which are not within any such guideline shall submit to the division specific justification for the need for such additional services in the particular case and the division shall have the justification reviewed by a health care professional before authorizing any such additional services. The division is authorized to enter into preferred provider and managed care agreements.
(2) Payment for health care services, rehabilitation services, durable medical and other goods and other supplies and medically related items authorized under this subsection may be made to the injured employee or to the person, firm or corporation who or which has rendered such treatment or furnished health care services, rehabilitation services, durable medical or other goods or other supplies and items, or who has advanced payment for same, as the division may deem proper, but no such payments or disbursements shall be made or awarded by the division unless duly verified statements on forms prescribed by the division shall be filed with the division within two years after the rendering of such treatment or the delivery of such goods, supplies or items: Provided, That no payment hereunder shall be made unless such verified statement shows no charge for or with respect to such treatment or for or with respect to any of the items specified above has been or will be made against the injured employee or any other person, firm or corporation, and when an employee covered under the provisions of this chapter is injured in the course of and as a result of his or her employment and is accepted for health care services, rehabilitation services, or the provision of durable medical or other goods or other supplies or medically related items, the person, firm or corporation rendering such treatment is hereby prohibited from making any charge or charges therefor or with respect thereto against the injured employee or any other person, firm or corporation which would result in a total charge for the treatment rendered in excess of the maximum amount set forth therefor in the division's schedule established as aforesaid.
(3) Any pharmacist filling a prescription for medication for a workers' compensation claimant shall dispense a generic brand of the prescribed medication if a generic brand exits. If a generic brand does not exist, then the pharmacist may dispense the name brand. In the event that a physician wishes to prescribe the use of the name brand of a given prescription medication, then he or she must indicate in his or her own handwriting on the prescription order form that the brand name medication is to be issued. In the event that a claimant wishes to receive the name brand medication in lieu of the generic brand and if the physician has not indicated that the brand name is required, then the claimant may receive the name brand medication but, in that event, the claimant will be personally liable for the difference in costs between the generic brand medication and the brand name medication.
(4) In the event that a claimant elects to receive health care services from a health care provider from outside of the state of West Virginia and if that health care provider refuses to abide by and accept as full payment the reimbursement made by the workers' compensation division pursuant to the schedule of maximum reasonable amounts of fees authorized by subsection (a) of this section, then, with the exceptions noted below, the claimant will be personably liable for the difference between the scheduled fee and the amount demanded by the out-of-state health care provider.
(A) In the event of an emergency where there is an urgent need for immediate medical attention in order to prevent the death of a claimant or to prevent serious and permanent harm to the claimant, if the claimant receives the emergency care from an out- of-state health care provider who refuses to accept as full payment the scheduled amount, then that claimant will not be personally liable for the difference between the amount scheduled and the amount demanded by the health care provider. Upon the claimant's attaining a stable medical condition and being able to be transferred to either a West Virginia health care provider or an out-of-state health care provider who has agreed to accept the scheduled amount of fees as payment in full, if such claimant refuses to seek the specified alternative health care providers, then he or she will be personally liable for the difference in costs between the scheduled amount and the amount demanded by the health care provider for services provided after attaining stability and being able to be transferred.
(B) In the event that there is no health care provider reasonably near to the claimant's home who is qualified to provide the claimant's needed medical services and who is either located in the state of West Virginia or who has agreed to accept as payment in full the scheduled amounts of fees, then the division upon application by the claimant may authorize the claimant to receive medical services from another health care provider and such claimant shall not be personally liable for the difference in costs between the scheduled amount and the amount demanded by the health care provider.
(b) No employer shall enter into any contracts with any hospital, its physicians, officers, agents or employees to render medical, dental or hospital service or to give medical or surgical attention therein to any employee for injury compensable within the purview of this chapter, and no employer shall permit or require any employee to contribute, directly or indirectly, to any fund for the payment of such medical, surgical, dental or hospital service within such hospital for such compensable injury. Any employer violating this section shall be liable in damages to the employer's employees as provided in section eight, article two of this chapter, and any employer or hospital or agent or employee thereof violating the provisions of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not less than one hundred dollars nor more than one thousand dollars or by imprisonment not exceeding one year, or both: Provided, That the foregoing provisions of this subsection shall not be deemed to prohibit an employer from participating in a preferred provider organization or program or a health maintenance organization or managed care organization or other medical cost containment relationship with the providers of medical, hospital or other health care: Provided, however, That nothing in this section shall be deemed to restrict the right of a claimant to select his or her initial health care provider for treatment of a compensable injury or disease. Should such a claimant thereafter wish to change his or her health care provider and if his or her employer has established and maintains a managed health care program consisting of a preferred provider organization or program, a health maintenance organization, then the claimant shall select a new health care provider through such managed care program. Moreover, if the division enters into an agreement which has been approved by the compensation programs performance council with a preferred provider organization or program, a health maintenance organization or other health care delivery organization or organizations, then if a claimant seeks to change his or her initial choice of health care provider and if the claimant's employer does not provide access to such an organization as part of the employer's general health insurance benefit, then the claimant shall be provided with a new health care provider from the division's preferred provider organization or program, health maintenance organization or other health care delivery organization or organizations available to him or her.
(c) When an injury has been reported to the division by the employer without protest, the division may pay, or order an employer who or which made the election and who or which received the permission mentioned in section nine, article two of this chapter to pay, within the maximum amount provided by schedule established by the division as aforesaid, bills for health care services without requiring the injured employee to file an application for benefits.
(d) The division shall provide for the replacement of artificial limbs, crutches, hearing aids, eyeglasses and all other mechanical appliances provided in accordance with this section which later wear out, or which later need to be refitted because of the progression of the injury which caused the same to be originally furnished, or which are broken in the course of and as a result of the employee's employment. The fund or self-insured employer shall pay for these devices, when needed, notwithstanding any time limits provided by law.
(e) No payment shall be made to a health care provider who is suspended or terminated under the terms of section three-c of this article except as provided in subsection (c) of said section.
(f) The division is authorized to engage in and contract for medical cost containment programs, medical case management programs and utilization review programs. Payments for these programs shall be made from the supersedeas reserve of the surplus fund. Any order issued pursuant to any such program shall be interlocutory in nature until an objecting party has exhausted all review processes provided for by the division.
(g) Notwithstanding the foregoing, the division may establish fee schedules, make payments and take other actions required or allowed pursuant to article twenty-nine-d, chapter sixteen of this code.


NOTE: The purpose of this bill is to require the Workers' Compensation Division to inform health care providers if payment for specific services or treatment, previously scheduled by the Division as approved, will no longer be made. Notice is to be made at least 10 days' before the approval of a treatment or service is to be eliminated.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.