Assembly Bill No. 168–Assemblymen Giunchigliani, Anderson, Parks, Goldwater, Gibbons, Arberry, Atkinson, Buckley, Claborn, Collins, Conklin, Horne, Leslie, Manendo and Williams
February 20, 2003
____________
Joint Sponsor: Senator Carlton
____________
Referred to Committee on Commerce and Labor
SUMMARY—Revises provisions governing industrial insurance. (BDR 53‑255)
FISCAL NOTE: Effect on Local Government: No.
Effect on the State: No.
~
EXPLANATION
– Matter in bolded italics is new; matter
between brackets [omitted material] is material to be omitted.
Green numbers along left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).
AN ACT relating to industrial insurance; prohibiting a self-insured employer, an association of self-insured public or private employers or a private carrier from entering into a contract with an organization for managed care under certain circumstances; increasing the period during which the Administrator of the Division of Industrial Relations of the Department of Business and Industry must cause an audit of certain insurers to be conducted; revising the requirements for determining the percentage of disability for certain injuries and occupational diseases; requiring an employer who offers temporary, light-duty employment to an injured employee to confirm the offer within a certain period under certain circumstances; providing that such an offer must specify a position that has the same seniority and employment benefits as the position of the employee at the time of his injury; requiring a person who wishes to contest a decision of the Administrator to impose or refuse to impose an administrative fine to file a notice of appeal in the district court; authorizing a person who is aggrieved by a written determination of the
Administrator or the failure of the Administrator to respond to a written request to appeal the determination or failure to respond to an appeals officer under certain circumstances; and providing other matters properly relating thereto.
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN
SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
1-1 Section 1. NRS 616A.070 is hereby amended to read as
1-2 follows:
1-3 616A.070 “Benefit penalty” means an additional amount of
1-4 money that is payable to a claimant if the Administrator has
1-5 determined that a violation of any of the provisions of paragraphs
1-6 (a) to [(d),] (e), inclusive, of subsection 1 of NRS 616D.120 has
1-7 occurred.
1-8 Sec. 2. Chapter 616B of NRS is hereby amended by adding
1-9 thereto the provisions set forth as sections 3 and 4 of this act.
1-10 Sec. 3. 1. A self-insured employer, an association of self-
1-11 insured public or private employers or a private carrier shall not
1-12 enter into a contract with an organization for managed care
1-13 unless the organization’s proposed plan for providing medical and
1-14 health care services ensures that, if medical or health care services
1-15 are to be provided by the organization, an employee who is injured
1-16 in the county in which he is employed may choose the services of
1-17 any provider of health care located in that county or an adjacent
1-18 county if the employee’s place of employment is not within a 20-
1-19 mile radius of a provider of health care who has contracted with
1-20 the organization to participate in the plan and provide the services
1-21 required by the employee. If those services are not available, the
1-22 injured employee may choose the services of any provider of
1-23 health care located in this state.
1-24 2. The fees charged by a provider of health care chosen by an
1-25 injured employee pursuant to this section may not exceed the fees
1-26 established in accordance with NRS 616C.260 or the usual fee
1-27 charged by that provider, whichever is less.
1-28 Sec. 4. 1. A self-insured employer, an association of self-
1-29 insured public or private employers or a private carrier shall not
1-30 enter into a contract with an organization for managed care
1-31 unless the organization’s proposed plan for providing medical and
1-32 health care services:
1-33 (a) Will provide all medical and health care services that may
1-34 be required for industrial injuries and occupational diseases that
1-35 are compensable under chapters 616A to 617, inclusive, of NRS in
1-36 a manner that ensures the availability and accessibility of
1-37 adequate treatment to injured employees;
2-1 (b) Provides to injured employees an adequate choice of
2-2 providers of health care who have contracted with the
2-3 organization to participate in the proposed plan; and
2-4 (c) Provides appropriate financial incentives to reduce costs of
2-5 medical and health care services without affecting the quality of
2-6 any care provided to an injured employee.
2-7 2. The Division may adopt regulations to ensure the adequacy
2-8 of an insurer’s panel of providers of health care established
2-9 pursuant to subsection 1.
2-10 Sec. 5. NRS 616B.003 is hereby amended to read as follows:
2-11 616B.003 1. The Administrator shall cause to be conducted
2-12 at least every [3] 5 years an audit of all insurers who provide
2-13 benefits to injured employees pursuant to chapters 616A to 616D,
2-14 inclusive, or chapter 617 of NRS. The Administrator shall cause to
2-15 be conducted each year on a random basis additional partial audits
2-16 of any insurer who has a history of violations of the provisions of
2-17 chapters 616A to 616D, inclusive, or chapter 617 of NRS, or the
2-18 regulations adopted pursuant thereto, as determined by the
2-19 Administrator.
2-20 2. The Administrator shall require the use of standard auditing
2-21 procedures and shall establish a manual to describe the standard
2-22 auditing procedures. The manual must include:
2-23 (a) Specific audit objectives;
2-24 (b) Standards for documentation;
2-25 (c) Policies for supervisory review;
2-26 (d) Policies for the training of auditors;
2-27 (e) The format for the audit report; and
2-28 (f) Procedures for the presentation, distribution and retention of
2-29 the audit report.
2-30 3. The Commissioner and the Administrator shall establish a
2-31 procedure for sharing information between the Division of
2-32 Insurance of the Department of Business and Industry and the
2-33 Division concerning the qualifications of employers as self-insured
2-34 employers pursuant to NRS 616B.300 or as an association of self-
2-35 insured public or private employers pursuant to NRS 616B.353.
2-36 4. On or before March 1 of each year, the Administrator shall
2-37 make a report of each audit to the Legislature, if it is in session, or to
2-38 the Interim Finance Committee if the Legislature is not in session.
2-39 Sec. 6. NRS 616B.527 is hereby amended to read as follows:
2-40 616B.527 1. A self-insured employer, an association of self-
2-41 insured public or private employers or a private carrier may:
2-42 (a) [Enter] Except as otherwise provided in sections 3 and 4 of
2-43 this act, enter into a contract or contracts with one or more
2-44 organizations for managed care to provide comprehensive medical
2-45 and health care services to employees for injuries and diseases that
3-1 are compensable pursuant to chapters 616A to 617, inclusive, of
3-2 NRS.
3-3 (b) Enter into a contract or contracts with providers of health
3-4 care, including, without limitation, physicians who provide primary
3-5 care, specialists, pharmacies, physical therapists, radiologists,
3-6 nurses, diagnostic facilities, laboratories, hospitals and facilities that
3-7 provide treatment to outpatients, to provide medical and health care
3-8 services to employees for injuries and diseases that are compensable
3-9 pursuant to chapters 616A to 617, inclusive, of NRS.
3-10 (c) Require employees to obtain medical and health care
3-11 services for their industrial injuries from those organizations and
3-12 persons with whom the self-insured employer, association or private
3-13 carrier has contracted pursuant to paragraphs (a) and (b), or as the
3-14 self-insured employer, association or private carrier otherwise
3-15 prescribes.
3-16 (d) Except as otherwise provided in subsection 3 of NRS
3-17 616C.090, require employees to obtain the approval of the self-
3-18 insured employer, association or private carrier before obtaining
3-19 medical and health care services for their industrial injuries from a
3-20 provider of health care who has not been previously approved by the
3-21 self-insured employer, association or private carrier.
3-22 2. An organization for managed care with whom a self-insured
3-23 employer, association of self-insured public or private employers or
3-24 a private carrier has contracted pursuant to this section shall comply
3-25 with the provisions of NRS 616B.528, 616B.5285 and 616B.529.
3-26 Sec. 7. NRS 616C.110 is hereby amended to read as follows:
3-27 616C.110 1. For the purposes of NRS 616B.557, 616C.490
3-28 and 617.459, the Division [shall] :
3-29 (a) Shall adopt regulations incorporating by reference the most
3-30 recently published edition of the American Medical Association’s
3-31 Guides to the Evaluation of Permanent Impairment [by reference
3-32 and may] not later than 1 year after the publication of that edition;
3-33 and
3-34 (b) May amend those regulations from time to time as it deems
3-35 necessary. [In adopting the Guides to the Evaluation of Permanent
3-36 Impairment, the Division shall consider the edition most recently
3-37 published by the American Medical Association.]
3-38 2. If the Guides to the Evaluation of Permanent Impairment
3-39 adopted by the Division contain more than one method of
3-40 determining the rating of an impairment, the Administrator shall
3-41 designate by regulation the method which must be used to rate an
3-42 impairment pursuant to NRS 616C.490.
3-43 Sec. 8. NRS 616C.340 is hereby amended to read as follows:
4-1 616C.340 1. The Governor shall appoint one or more appeals
4-2 officers to conduct hearings [in contested claims for compensation
4-3 pursuant to NRS 616C.360.] and appeals as required pursuant to
4-4 chapters 616A to 617, inclusive, of NRS. Each appeals officer shall
4-5 hold office for 2 years [from] after the date of his appointment and
4-6 until his successor is appointed and has qualified. Each appeals
4-7 officer is entitled to receive an annual salary in an amount provided
4-8 by law and is in the unclassified service of the State.
4-9 2. Each appeals officer must be an attorney who has been
4-10 licensed to practice law before all the courts of this state for at least
4-11 2 years. Except as otherwise provided in NRS 7.065, an appeals
4-12 officer shall not engage in the private practice of law.
4-13 3. If an appeals officer determines that he has a personal
4-14 interest or a conflict of interest, directly or indirectly, in any case
4-15 which is before him, he shall disqualify himself from hearing the
4-16 case.
4-17 4. The Governor may appoint one or more special appeals
4-18 officers to conduct hearings [in contested claims for compensation
4-19 pursuant to NRS 616C.360.] and appeals as required pursuant to
4-20 chapters 616A to 617, inclusive, of NRS. The Governor shall not
4-21 appoint an attorney who represents persons in actions related to
4-22 claims for compensation to serve as a special appeals officer.
4-23 5. A special appeals officer appointed pursuant to subsection 4
4-24 is vested with the same powers as a regular appeals officer. A
4-25 special appeals officer may hear any case in which a regular appeals
4-26 officer has a conflict, or any case assigned to him by the Senior
4-27 Appeals Officer to assist with a backlog of cases. A special appeals
4-28 officer is entitled to be paid at an hourly rate, as determined by the
4-29 Department of Administration.
4-30 6. The decision of an appeals officer is the final and binding
4-31 administrative determination of a claim for compensation under
4-32 chapters 616A to 616D, inclusive, or chapter 617 of NRS, and the
4-33 whole record consists of all evidence taken at the hearing before the
4-34 appeals officer and any findings of fact and conclusions of law
4-35 based thereon.
4-36 Sec. 9. NRS 616C.345 is hereby amended to read as follows:
4-37 616C.345 1. Any party aggrieved by a decision of the
4-38 hearing officer relating to a claim for compensation may appeal
4-39 from the decision by filing a notice of appeal with an appeals officer
4-40 within 30 days after the date of the decision.
4-41 2. If a dispute is required to be submitted to a procedure for
4-42 resolving complaints pursuant to NRS 616C.305 and:
4-43 (a) A final determination was rendered pursuant to that
4-44 procedure; or
5-1 (b) The dispute was not resolved pursuant to that procedure
5-2 within 14 days after it was submitted,
5-3 any party to the dispute may file a notice of appeal within 70 days
5-4 after the date on which the final determination was mailed to the
5-5 employee, or his dependent, or the unanswered request for
5-6 resolution was submitted. Failure to render a written determination
5-7 within 30 days after receipt of such a request shall be deemed by the
5-8 appeals officer to be a denial of the request.
5-9 3. Except as otherwise provided in NRS 616C.380, the filing of
5-10 a notice of appeal does not automatically stay the enforcement of the
5-11 decision of a hearing officer or a determination rendered pursuant to
5-12 NRS 616C.305. The appeals officer may order a stay, when
5-13 appropriate, upon the application of a party. If such an application is
5-14 submitted, the decision is automatically stayed until a determination
5-15 is made concerning the application. A determination on the
5-16 application must be made within 30 days after the filing of
5-17 the application. If a stay is not granted by the officer after reviewing
5-18 the application, the decision must be complied with within 10 days
5-19 after the date of the refusal to grant a stay.
5-20 4. Except as otherwise provided in this subsection, [the appeals
5-21 officer shall,] within 10 days after receiving a notice of appeal
5-22 pursuant to this section or NRS 616D.140, or within 10 days after
5-23 receiving a notice of a contested claim pursuant to subsection 5 of
5-24 NRS 616C.315, the appeals officer shall schedule a hearing on the
5-25 merits of the appeal or contested claim for a date and time within 90
5-26 days after his receipt of the notice and give notice by mail or by
5-27 personal service to all parties to the matter and their attorneys or
5-28 agents at least 30 days before the date and time scheduled. A request
5-29 to schedule the hearing for a date and time which is:
5-30 (a) Within 60 days after the receipt of the notice of appeal or
5-31 contested claim; or
5-32 (b) More than 90 days after the receipt of the notice or
5-33 claim,
5-34 may be submitted to the appeals officer only if all parties to the
5-35 appeal or contested claim agree to the request.
5-36 5. An appeal or contested claim may be continued upon written
5-37 stipulation of all parties, or upon good cause shown.
5-38 6. Failure to file a notice of appeal within the period specified
5-39 in subsection 1 or 2 may be excused if the party aggrieved shows by
5-40 a preponderance of the evidence that he did not receive the notice of
5-41 the determination and the forms necessary to appeal the
5-42 determination. The claimant, employer or insurer shall notify the
5-43 hearing officer of a change of address.
6-1 Sec. 10. NRS 616C.475 is hereby amended to read as follows:
6-2 616C.475 1. Except as otherwise provided in this section,
6-3 NRS 616C.175 and 616C.390, every employee in the employ of an
6-4 employer, within the provisions of chapters 616A to 616D,
6-5 inclusive, of NRS, who is injured by accident arising out of and in
6-6 the course of employment, or his dependents, is entitled to receive
6-7 for the period of temporary total disability, 66 2/3 percent of the
6-8 average monthly wage.
6-9 2. Except as otherwise provided in NRS 616B.028 and
6-10 616B.029, an injured employee or his dependents are not entitled to
6-11 accrue or be paid any benefits for a temporary total disability during
6-12 the time the injured employee is incarcerated. The injured employee
6-13 or his dependents are entitled to receive such benefits when the
6-14 injured employee is released from incarceration if he is certified as
6-15 temporarily totally disabled by a physician or chiropractor.
6-16 3. If a claim for the period of temporary total disability is
6-17 allowed, the first payment pursuant to this section must be issued by
6-18 the insurer within 14 working days after receipt of the initial
6-19 certification of disability and regularly thereafter.
6-20 4. Any increase in compensation and benefits effected by the
6-21 amendment of subsection 1 is not retroactive.
6-22 5. Payments for a temporary total disability must cease when:
6-23 (a) A physician or chiropractor determines that the employee is
6-24 physically capable of any gainful employment for which the
6-25 employee is suited, after giving consideration to the employee’s
6-26 education, training and experience;
6-27 (b) The employer offers the employee light-duty employment or
6-28 employment that is modified according to the limitations or
6-29 restrictions imposed by a physician or chiropractor pursuant to
6-30 subsection 7; or
6-31 (c) Except as otherwise provided in NRS 616B.028 and
6-32 616B.029, the employee is incarcerated.
6-33 6. Each insurer may, with each check that it issues to an injured
6-34 employee for a temporary total disability, include a form approved
6-35 by the Division for the injured employee to request continued
6-36 compensation for the temporary total disability.
6-37 7. A certification of disability issued by a physician or
6-38 chiropractor must:
6-39 (a) Include the period of disability and a description of any
6-40 physical limitations or restrictions imposed upon the work of the
6-41 employee;
6-42 (b) Specify whether the limitations or restrictions are permanent
6-43 or temporary; and
7-1 (c) Be signed by the treating physician or chiropractor
7-2 authorized pursuant to NRS 616B.527 or appropriately chosen
7-3 pursuant to subsection 3 of NRS 616C.090.
7-4 8. If the certification of disability specifies that the physical
7-5 limitations or restrictions are temporary, the employer of the
7-6 employee at the time of his accident [is not required to comply] may
7-7 offer temporary, light-duty employment to the employee. If the
7-8 employer makes such an offer, the employer shall confirm the
7-9 offer in writing within 10 days after making the offer. The
7-10 making, acceptance or rejection of an offer of temporary, light-
7-11 duty employment pursuant to this subsection does not affect the
7-12 eligibility of the employee to receive compensation or vocational
7-13 rehabilitation services and does not exempt the employer from
7-14 complying with NRS 616C.545 to 616C.575, inclusive, and
7-15 616C.590 or the regulations adopted by the Division governing
7-16 vocational rehabilitation services . [if the employer offers the
7-17 employee temporary, light -duty employment.] Any offer of
7-18 temporary, light-duty employment made by the employer must
7-19 specify a position that:
7-20 (a) Is substantially similar to the employee’s position at the time
7-21 of his injury in relation to the location of the employment and the
7-22 hours he is required to work; [and]
7-23 (b) Provides a gross wage that is:
7-24 (1) If the position is in the same classification of
7-25 employment, equal to the gross wage the employee was earning at
7-26 the time of his injury; or
7-27 (2) If the position is not in the same classification of
7-28 employment, substantially similar to the gross wage the employee
7-29 was earning at the time of his injury[.] ; and
7-30 (c) Has the same seniority and employment benefits as the
7-31 position of the employee at the time of his injury.
7-32 Sec. 11. NRS 616C.495 is hereby amended to read as follows:
7-33 616C.495 1. Except as otherwise provided in NRS 616C.380,
7-34 an award for a permanent partial disability may be paid in a lump
7-35 sum under the following conditions:
7-36 (a) A claimant injured on or after July 1, 1973, and before
7-37 July 1, 1981, who incurs a disability that does not exceed 12 percent
7-38 may elect to receive his compensation in a lump sum. A claimant
7-39 injured on or after July 1, 1981, and before July 1, 1995, who incurs
7-40 a disability that does not exceed 25 percent may elect to receive his
7-41 compensation in a lump sum.
7-42 (b) The spouse, or in the absence of a spouse, any dependent
7-43 child of a deceased claimant injured on or after July 1, 1973, who is
7-44 not entitled to compensation in accordance with NRS 616C.505, is
8-1 entitled to a lump sum equal to the present value of the deceased
8-2 claimant’s undisbursed award for a permanent partial disability.
8-3 (c) Any claimant injured on or after July 1, 1981, and before
8-4 July 1, 1995, who incurs a disability that exceeds 25 percent may
8-5 elect to receive his compensation in a lump sum equal to the present
8-6 value of an award for a disability of 25 percent. If the claimant
8-7 elects to receive compensation pursuant to this paragraph, the
8-8 insurer shall pay in installments to the claimant that portion of the
8-9 claimant’s disability in excess of 25 percent.
8-10 (d) Any claimant injured on or after July 1, 1995, may elect to
8-11 receive his compensation in a lump sum in accordance with
8-12 regulations adopted by the Administrator and approved by the
8-13 Governor. The Administrator shall adopt regulations for
8-14 determining the eligibility of such a claimant to receive all or any
8-15 portion of his compensation in a lump sum. Such regulations may
8-16 include the manner in which an award for a permanent partial
8-17 disability may be paid to such a claimant in installments.
8-18 Notwithstanding the provisions of NRS 233B.070, any regulation
8-19 adopted pursuant to this paragraph does not become effective unless
8-20 it is first approved by the Governor.
8-21 2. If the claimant elects to receive his payment for a permanent
8-22 partial disability in a lump sum pursuant to subsection 1, all of his
8-23 benefits for compensation terminate. His acceptance of that payment
8-24 constitutes a final settlement of all factual and legal issues in the
8-25 case. By so accepting , he waives all of his rights regarding the
8-26 claim, including the right to appeal from the closure of the case or
8-27 the percentage of his disability, except:
8-28 (a) His right to reopen his claim according to the provisions of
8-29 NRS 616C.390; [and]
8-30 (b) Any counseling, training or other rehabilitative services
8-31 provided by the insurer [.] ; and
8-32 (c) His right to receive a benefit penalty in accordance with
8-33 NRS 616D.120.
8-34 The claimant must be advised in writing of the provisions of this
8-35 subsection when he demands his payment in a lump sum, and has 20
8-36 days after the mailing or personal delivery of [this] the notice within
8-37 which to retract or reaffirm his demand, before payment may be
8-38 made and his election becomes final.
8-39 3. Any lump-sum payment which has been paid on a claim
8-40 incurred on or after July 1, 1973, must be supplemented if necessary
8-41 to conform to the provisions of this section.
8-42 4. Except as otherwise provided in this subsection, the total
8-43 lump-sum payment for disablement must not be less than one-half
8-44 the product of the average monthly wage multiplied by the
8-45 percentage of disability. If the claimant received compensation in
9-1 installment payments for his permanent partial disability before
9-2 electing to receive his payment for that disability in a lump sum, the
9-3 lump-sum payment must be calculated for the remaining payment of
9-4 compensation.
9-5 5. The lump sum payable must be equal to the present value of
9-6 the compensation awarded, less any advance payment or lump sum
9-7 previously paid. The present value must be calculated using monthly
9-8 payments in the amounts prescribed in subsection 7 of NRS
9-9 616C.490 and actuarial annuity tables adopted by the Division. The
9-10 tables must be reviewed annually by a consulting actuary.
9-11 6. If a claimant would receive more money by electing to
9-12 receive compensation in a lump sum than he would if he receives
9-13 installment payments, he may elect to receive the lump-sum
9-14 payment.
9-15 Sec. 12. NRS 616C.590 is hereby amended to read as follows:
9-16 616C.590 1. Except as otherwise provided in this section, an
9-17 injured employee is not eligible for vocational rehabilitation
9-18 services, unless:
9-19 (a) The treating physician or chiropractor approves the return of
9-20 the injured employee to work but imposes permanent restrictions
9-21 that prevent the injured employee from returning to the position that
9-22 he held at the time of his injury;
9-23 (b) The injured employee’s employer does not offer
9-24 employment that:
9-25 (1) The employee is eligible for considering the restrictions
9-26 imposed pursuant to paragraph (a); [and]
9-27 (2) Provides a gross wage that is equal to or greater than 80
9-28 percent of the gross wage that the employee was earning at the time
9-29 of his injury; and
9-30 (3) Has the same seniority and employment benefits as the
9-31 position of the employee at the time of his injury; and
9-32 (c) The injured employee is unable to return to gainful
9-33 employment with any other employer at a gross wage that is equal
9-34 to or greater than 80 percent of the gross wage that the employee
9-35 was earning at the time of his injury.
9-36 2. If the treating physician or chiropractor imposes permanent
9-37 restrictions on the injured employee for the purposes of paragraph
9-38 (a) of subsection 1, he shall specify in writing:
9-39 (a) The medically objective findings upon which his
9-40 determination is based; and
9-41 (b) A detailed description of the restrictions.
9-42 The treating physician or chiropractor shall deliver a copy of the
9-43 findings and the description of the restrictions to the insurer.
9-44 3. If there is a question as to whether the restrictions imposed
9-45 upon the injured employee are permanent, the employee may
10-1 receive vocational rehabilitation services until a final determination
10-2 concerning the duration of the restrictions is made.
10-3 4. Vocational rehabilitation services must cease as soon as the
10-4 injured employee is no longer eligible for the services pursuant to
10-5 subsection 1.
10-6 5. An injured employee is not entitled to vocational
10-7 rehabilitation services solely because the position that he held at the
10-8 time of his injury is no longer available.
10-9 6. An injured employee or his dependents are not entitled to
10-10 accrue or be paid any money for vocational rehabilitation services
10-11 during the time the injured employee is incarcerated.
10-12 7. Any injured employee eligible for compensation other than
10-13 accident benefits may not be paid those benefits if he refuses
10-14 counseling, training or other vocational rehabilitation services
10-15 offered by the insurer. Except as otherwise provided in NRS
10-16 616B.028 and 616B.029, an injured employee shall be deemed to
10-17 have refused counseling, training and other vocational rehabilitation
10-18 services while he is incarcerated.
10-19 8. If an insurer cannot locate an injured employee for whom it
10-20 has ordered vocational rehabilitation services, the insurer may close
10-21 his claim 21 days after the insurer determines that the employee
10-22 cannot be located. The insurer shall make a reasonable effort to
10-23 locate the employee.
10-24 9. The reappearance of the injured employee after his claim has
10-25 been closed does not automatically reinstate his eligibility for
10-26 vocational rehabilitation benefits. If the employee wishes to
10-27 reestablish his eligibility for [such] those benefits, he must file a
10-28 written application with the insurer to reinstate his claim. The
10-29 insurer shall reinstate the employee’s claim if good cause is shown
10-30 for the employee’s absence.
10-31 Sec. 13. Chapter 616D is hereby amended by adding thereto
10-32 a new section to read as follows:
10-33 1. If a person wishes to contest a decision of the
10-34 Administrator to impose or refuse to impose an administrative fine
10-35 pursuant to this chapter or chapter 616A, 616B, 616C or 617 of
10-36 NRS, he must file a notice of appeal with the district court in
10-37 accordance with this section. The notice of appeal must set forth
10-38 the reasons the proposed administrative fine should or should not
10-39 be imposed.
10-40 2. A person who is aggrieved by:
10-41 (a) A written determination of the Administrator; or
10-42 (b) The failure of the Administrator to respond within 70 days
10-43 to a written request mailed to the Administrator by the person who
10-44 is aggrieved,
11-1 may appeal from the determination or failure to respond by filing
11-2 a request for a hearing before the district court. The request must
11-3 be filed within 30 days after the date on which the notice of the
11-4 Administrator’s determination was mailed by the Administrator or
11-5 within 100 days after the date on which the unanswered written
11-6 request was mailed to the Administrator, as applicable. The failure
11-7 of the Administrator to respond to a written request for a
11-8 determination within 70 days after receipt of the request shall be
11-9 deemed by the district court to be a denial of the request.
11-10 3. If a notice of appeal is not filed as required by this section,
11-11 the imposition of or refusal to impose the administrative fine shall
11-12 be deemed a final order and is not subject to review by any court
11-13 or agency.
11-14 4. An administrative fine imposed pursuant to this chapter or
11-15 chapter 616A, 616B, 616C or 617 of NRS must be paid to the
11-16 Division. If the violation for which the fine is levied was
11-17 committed by a person while acting within the course and scope of
11-18 his agency or employment, the fine must be paid by his principal
11-19 or employer. The fine may be recovered in a civil action brought
11-20 in the name of the Division in a court of competent jurisdiction in
11-21 the county in which the violation occurred or in which the person
11-22 against whom the fine is levied has his principal place of business.
11-23 Sec. 14. NRS 616D.120 is hereby amended to read as follows:
11-24 616D.120 1. Except as otherwise provided in this section, if
11-25 the Administrator determines that an insurer, organization for
11-26 managed care, health care provider, third-party administrator or
11-27 employer has:
11-28 (a) [Through fraud, coercion, duress or undue influence:
11-29 (1)] Induced a claimant to fail to report an accidental injury
11-30 or occupational disease;
11-31 [(2) Persuaded]
11-32 (b) Without justification, persuaded a claimant to [settle] :
11-33 (1) Settle for an amount which is less than reasonable;
11-34 [(3) Persuaded a claimant to settle]
11-35 (2) Settle for an amount which is less than reasonable while a
11-36 hearing or an appeal is pending; or
11-37 [(4) Persuaded a claimant to accept]
11-38 (3) Accept less than the compensation found to be due him
11-39 by a hearing officer, appeals officer, court of competent jurisdiction,
11-40 written settlement agreement, written stipulation or the Division
11-41 when carrying out its duties pursuant to chapters 616A to 617,
11-42 inclusive, of NRS;
11-43 [(b)] (c) Refused to pay or unreasonably delayed payment to a
11-44 claimant of compensation or other relief found to be due him by a
11-45 hearing officer, appeals officer, court of competent jurisdiction,
12-1 written settlement agreement, written stipulation or the Division
12-2 when carrying out its duties pursuant to chapters 616A to 616D,
12-3 inclusive, or chapter 617 of NRS, if the refusal or delay occurs:
12-4 (1) Later than 10 days after the date of the settlement
12-5 agreement or stipulation;
12-6 (2) Later than 30 days after the date of the decision of a
12-7 court, hearing officer, appeals officer or the Division, unless a stay
12-8 has been granted; or
12-9 (3) Later than 10 days after a stay of the decision of a court,
12-10 hearing officer, appeals officer or the Division has been lifted;
12-11 [(c)] (d) Refused to process a claim for compensation pursuant
12-12 to chapters 616A to 616D, inclusive, or chapter 617 of NRS;
12-13 [(d)] (e) Made it necessary for a claimant to initiate proceedings
12-14 pursuant to chapters 616A to 616D, inclusive, or chapter 617 of
12-15 NRS for compensation found to be due him by a hearing officer,
12-16 appeals officer, court of competent jurisdiction, written settlement
12-17 agreement, written stipulation or the Division when carrying out its
12-18 duties pursuant to chapters 616A to 616D, inclusive, or chapter 617
12-19 of NRS;
12-20 [(e)] (f) Failed to comply with the Division’s regulations
12-21 covering the payment of an assessment relating to the funding of
12-22 costs of administration of chapters 616A to 617, inclusive, of NRS;
12-23 [(f)] (g) Failed to provide or unreasonably delayed payment to
12-24 an injured employee or reimbursement to an insurer pursuant to
12-25 NRS 616C.165; or
12-26 [(g)] (h) Intentionally failed to comply with any provision of, or
12-27 regulation adopted pursuant to, this chapter or chapter 616A, 616B,
12-28 616C or 617 of NRS,
12-29 the Administrator shall impose an administrative fine of $1,000 for
12-30 each initial violation, or a fine of $10,000 for a second or
12-31 subsequent violation.
12-32 2. Except as otherwise provided in chapters 616A to 616D,
12-33 inclusive, or chapter 617 of NRS, if the Administrator determines
12-34 that an insurer, organization for managed care, health care provider,
12-35 third-party administrator or employer has failed to comply with any
12-36 provision of this chapter or chapter 616A, 616B, 616C or 617 of
12-37 NRS, or any regulation adopted pursuant thereto, the Administrator
12-38 may take any of the following actions:
12-39 (a) Issue a notice of correction for:
12-40 (1) A minor violation, as defined by regulations adopted by
12-41 the Division; or
12-42 (2) A violation involving the payment of compensation in an
12-43 amount which is greater than that required by any provision of this
12-44 chapter or chapter 616A, 616B, 616C or 617 of NRS, or any
12-45 regulation adopted pursuant thereto.
13-1 The notice of correction must set forth with particularity the
13-2 violation committed and the manner in which the violation may be
13-3 corrected. The provisions of this section do not authorize the
13-4 Administrator to modify or negate in any manner a determination or
13-5 any portion of a determination made by a hearing officer, appeals
13-6 officer or court of competent jurisdiction or a provision contained in
13-7 a written settlement agreement or written stipulation.
13-8 (b) Impose an administrative fine for:
13-9 (1) A second or subsequent violation for which a notice of
13-10 correction has been issued pursuant to paragraph (a); or
13-11 (2) Any other violation of this chapter or chapter 616A,
13-12 616B, 616C or 617 of NRS, or any regulation adopted pursuant
13-13 thereto, for which a notice of correction may not be issued pursuant
13-14 to paragraph (a).
13-15 The fine imposed [may] must not be greater than $250 for an initial
13-16 violation, or more than $1,000 for any second or subsequent
13-17 violation.
13-18 (c) Order a plan of corrective action to be submitted to the
13-19 Administrator within 30 days after the date of the order.
13-20 3. If the Administrator determines that a violation of any of the
13-21 provisions of paragraphs (a) to [(d),] (e), inclusive, of subsection 1
13-22 has occurred, the Administrator shall order the insurer, organization
13-23 for managed care, health care provider, third-party administrator or
13-24 employer to pay to the claimant a benefit penalty in an amount that
13-25 is not less than $5,000 and not greater than $25,000. To determine
13-26 the amount of the benefit penalty, the Administrator shall consider
13-27 the degree of physical harm suffered by the injured employee or his
13-28 dependents as a result of the violation of paragraph (a), (b), (c) , [or]
13-29 (d) or (e) of subsection 1, the amount of compensation found to be
13-30 due the claimant , and the number of fines and benefit penalties
13-31 previously imposed against the insurer, organization for managed
13-32 care, health care provider, third-party administrator or employer
13-33 pursuant to this section. If this is the third violation within 5 years
13-34 for which a benefit penalty has been imposed against the insurer,
13-35 organization for managed care, health care provider, third-party
13-36 administrator or employer, the Administrator shall also consider the
13-37 degree of economic harm suffered by the injured employee or his
13-38 dependents as a result of the violation of paragraph (a), (b), (c) , [or]
13-39 (d) or (e) of subsection 1. Except as otherwise provided in this
13-40 section, the benefit penalty is for the benefit of the claimant and
13-41 must be paid directly to him within 10 days after the date of the
13-42 Administrator’s determination. If the claimant is the injured
13-43 employee and he dies before the benefit penalty is paid to him, the
13-44 benefit penalty must be paid to his estate. Proof of the payment of
13-45 the benefit penalty must be submitted to the Administrator within 10
14-1 days after the date of his determination unless an appeal is filed
14-2 pursuant to NRS 616D.140. Any compensation to which the
14-3 claimant may otherwise be entitled pursuant to chapters 616A to
14-4 616D, inclusive, or chapter 617 of NRS must not be reduced by the
14-5 amount of any benefit penalty received pursuant to this subsection.
14-6 4. In addition to any fine or benefit penalty imposed pursuant
14-7 to this section, the Administrator may assess against an insurer who
14-8 violates any regulation concerning the reporting of claims
14-9 expenditures or premiums received that are used to calculate an
14-10 assessment, an administrative penalty of up to twice the amount of
14-11 any underpaid assessment.
14-12 5. If:
14-13 (a) The Administrator determines that a person has violated any
14-14 of the provisions of NRS 616D.200, 616D.220, 616D.240,
14-15 616D.300, 616D.310 or 616D.350 to 616D.440, inclusive; and
14-16 (b) The Fraud Control Unit for Industrial Insurance of the Office
14-17 of the Attorney General established pursuant to NRS 228.420
14-18 notifies the Administrator that the unit will not prosecute the person
14-19 for that violation,
14-20 the Administrator shall impose an administrative fine of not more
14-21 than $10,000.
14-22 6. Two or more fines of $1,000 or more imposed in 1 year for
14-23 acts enumerated in subsection 1 must be considered by the
14-24 Commissioner as evidence for the withdrawal of:
14-25 (a) A certificate to act as a self-insured employer.
14-26 (b) A certificate to act as an association of self-insured public or
14-27 private employers.
14-28 (c) A certificate of registration as a third-party administrator.
14-29 7. The Commissioner may, without complying with the
14-30 provisions of NRS 616B.327 or 616B.431, withdraw the
14-31 certification of a self-insured employer, association of self-insured
14-32 public or private employers or third-party administrator if, after a
14-33 hearing, it is shown that the self-insured employer, association of
14-34 self-insured public or private employers or third-party administrator
14-35 violated any provision of subsection 1.
14-36 Sec. 15. NRS 616D.130 is hereby amended to read as follows:
14-37 616D.130 1. Upon receipt of a complaint for a violation of
14-38 subsection 1 of NRS 616D.120, or if the Administrator has reason to
14-39 believe that such a violation has occurred, the Administrator shall
14-40 cause to be conducted an investigation of the alleged violation.
14-41 Except as otherwise provided in subsection 2, the Administrator
14-42 shall, within 30 days after initiating the investigation:
14-43 (a) Render a determination. The determination must include his
14-44 findings of fact and, if he determines that a violation has occurred,
14-45 one or more of the following:
15-1 (1) The amount of any fine required to be paid pursuant to
15-2 NRS 616D.120.
15-3 (2) The amount of any benefit penalty required to be paid to
15-4 a claimant pursuant to NRS 616D.120.
15-5 (3) A plan of corrective action to be taken by the insurer,
15-6 organization for managed care, health care provider, third-party
15-7 administrator or employer, including the manner and time within
15-8 which the violation must be corrected.
15-9 (4) A requirement that notice of the violation be given to the
15-10 appropriate agency that regulates the activities of the violator.
15-11 (b) Notify the Commissioner if he determines that a violation
15-12 was committed by a self-insured employer, association of self-
15-13 insured public or private employers or third-party administrator.
15-14 2. Upon receipt of a complaint for any violation of paragraph
15-15 (a) , (b) or [(c)] (d) of subsection 1 of NRS 616D.120, or if the
15-16 Administrator has reason to believe that such a violation has
15-17 occurred, the Administrator shall complete the investigation
15-18 required by subsection 1 within [120] 90 days and, within 30 days
15-19 after the completion of the investigation, render a determination and
15-20 notify the Commissioner if he determines that a violation was
15-21 committed by a self-insured employer, association of self-insured
15-22 public or private employers or third-party administrator.
15-23 3. If, based upon the Administrator’s findings of fact, he
15-24 determines that a violation has not occurred, he shall issue a
15-25 determination to that effect.
15-26 Sec. 16. NRS 616D.140 is hereby amended to read as follows:
15-27 616D.140 1. If a person wishes to contest a decision of the
15-28 Administrator to impose [an administrative fine] or refuse to impose
15-29 a benefit penalty pursuant to [this chapter or chapter 616A, 616B,
15-30 616C or 617 of NRS,] NRS 616D.120, he must file a notice of
15-31 appeal with [the Division within 10 days after receipt of the
15-32 Administrator’s decision, showing why] an appeals officer in
15-33 accordance with this section. The notice of appeal must set forth
15-34 the reasons the proposed [fine or] benefit penalty should or should
15-35 not be imposed.
15-36 2. [If a notice of appeal is filed as required by subsection 1, the
15-37 Administrator shall, in accordance with the provisions of NRS
15-38 233B.121, issue a notice of hearing that must include a date for a
15-39 hearing on the matter, which must be no sooner than 30 days after
15-40 the notice of appeal is filed. The Administrator may grant a
15-41 continuance of the hearing upon a showing of good cause.] A
15-42 person who is aggrieved by:
15-43 (a) A written determination of the Administrator; or
16-1 (b) The failure of the Administrator to respond within 70 days
16-2 to a written request mailed to the Administrator by the person who
16-3 is aggrieved,
16-4 may appeal from the determination or failure to respond by filing
16-5 a request for a hearing before an appeals officer. The request
16-6 must be filed within 30 days after the date on which the notice of
16-7 the Administrator’s determination was mailed by the
16-8 Administrator or within 100 days after the date on which the
16-9 unanswered written request was mailed to the Administrator, as
16-10 applicable. The failure of the Administrator to respond to a written
16-11 request for a determination within 70 days after receipt of the
16-12 request shall be deemed by the appeals officer to be a denial of the
16-13 request.
16-14 3. If a notice of appeal is not filed as required by this section,
16-15 the imposition of or refusal to impose the [fine or] benefit penalty
16-16 shall be deemed a final order and is not subject to review by any
16-17 court or agency.
16-18 4. [Except as otherwise provided in NRS 616A.467, a] A
16-19 hearing held pursuant to this section must be conducted by the
16-20 [Administrator or a person designated by him. A record of the
16-21 hearing must be kept but it need not be transcribed unless it is
16-22 requested by the person against whom the order or notice of
16-23 violation has been issued and that person pays the cost of
16-24 transcription. The Administrator] appeals officer as a hearing de
16-25 novo. The appeals officer shall render a written decision on the
16-26 appeal. Except as otherwise provided in this section, the provisions
16-27 of NRS 616C.345 to 616C.385, inclusive, apply to an appeal filed
16-28 pursuant to this section.
16-29 5. [An administrative fine imposed pursuant to this chapter or
16-30 chapter 616A, 616B, 616C or 617 of NRS must be paid to the
16-31 Division. If the violation for which the fine is levied was committed
16-32 by a person while acting within the course and scope of his agency
16-33 or employment, the fine must be paid by his principal or employer.
16-34 The fine may be recovered in a civil action brought in the name of
16-35 the Division in a court of competent jurisdiction in the county in
16-36 which the violation occurred or in which the person against whom
16-37 the fine is levied has his principal place of business.
16-38 6.] A benefit penalty imposed pursuant to NRS 616D.120 must
16-39 be paid to the claimant on whose behalf it is imposed. If such a
16-40 payment is not made within the period required by NRS 616D.120,
16-41 the benefit penalty may be recovered in a civil action brought by the
16-42 Administrator on behalf of the claimant in a court of competent
16-43 jurisdiction in the county in which the claimant resides, in which the
16-44 violation occurred or in which the person who is required to pay the
16-45 benefit penalty has his principal place of business.
17-1 [7.] 6. Any party aggrieved by a decision [of the Administrator
17-2 rendered] issued pursuant to this section by an appeals officer may
17-3 appeal the decision directly to the district court.
17-4 Sec. 17. NRS 616D.280 is hereby repealed.
17-5 TEXT OF REPEALED SECTION
17-6 616D.280 Injury to employee caused by absence of safety
17-7 device.
17-8 1. If any workman is injured because of the absence of any
17-9 safeguard or protection required to be provided or maintained by, or
17-10 pursuant to, any statute, ordinance, or any divisional regulation
17-11 under any statute, the employer is liable to the Division for a
17-12 penalty of not less than $300 nor more than $2,000, to be collected
17-13 in a civil action at law by the Division.
17-14 2. The provisions of subsection 1 do not apply if the absence of
17-15 the safeguard or protection is due to the removal thereof by the
17-16 injured workman himself, or with his knowledge by any fellow
17-17 workman, unless the removal is by order or direction of the
17-18 employer or superintendent or foreman of the employer.
17-19 3. If the safeguard or protection is removed by the workman
17-20 himself, or with his consent is removed by any of his fellow
17-21 workmen, unless done by order or direction of the employer or
17-22 superintendent or foreman of the employer, the compensation of the
17-23 injured workman, as provided for by NRS 616C.405, 616C.425,
17-24 616C.435, 616C.440, 616C.445 and 616C.475 to 616C.505,
17-25 inclusive, must be reduced 25 percent.
17-26 H