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.

 

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 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 an administrative fine to file a notice of appeal with an appeals officer; 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.  (Deleted by amendment.)

1-11      Sec. 4.  1.  A self-insured employer, an association of self-

1-12  insured public or private employers or a private carrier shall not

1-13  enter into a contract with an organization for managed care

1-14  unless the organization’s proposed plan for providing medical and

1-15  health care services:

1-16      (a) Will provide all medical and health care services that may

1-17  be required for industrial injuries and occupational diseases that

1-18  are compensable under chapters 616A to 617, inclusive, of NRS in

1-19  a manner that ensures the availability and accessibility of

1-20  adequate treatment to injured employees;

1-21      (b) Provides to injured employees an adequate choice of

1-22  providers of health care who have contracted with the

1-23  organization to participate in the proposed plan; and

1-24      (c) Provides appropriate financial incentives to reduce costs of

1-25  medical and health care services without affecting the quality of

1-26  any care provided to an injured employee.

1-27      2.  The Division may adopt regulations to ensure the adequacy

1-28  of an insurer’s panel of providers of health care established

1-29  pursuant to subsection 1.

1-30      Sec. 5.  NRS 616B.003 is hereby amended to read as follows:

1-31      616B.003  1.  The Administrator shall cause to be conducted

1-32  at least every [3] 5 years an audit of all insurers who provide

1-33  benefits to injured employees pursuant to chapters 616A to 616D,

1-34  inclusive, or chapter 617 of NRS. The Administrator shall cause to

1-35  be conducted each year on a random basis additional partial audits

1-36  of any insurer who has a history of violations of the provisions of

1-37  chapters 616A to 616D, inclusive, or chapter 617 of NRS, or the

2-1  regulations adopted pursuant thereto, as determined by the

2-2  Administrator.

2-3  2.  The Administrator shall require the use of standard auditing

2-4  procedures and shall establish a manual to describe the standard

2-5  auditing procedures. The manual must include:

2-6  (a) Specific audit objectives;

2-7  (b) Standards for documentation;

2-8  (c) Policies for supervisory review;

2-9  (d) Policies for the training of auditors;

2-10      (e) The format for the audit report; and

2-11      (f) Procedures for the presentation, distribution and retention of

2-12  the audit report.

2-13      3.  The Commissioner and the Administrator shall establish a

2-14  procedure for sharing information between the Division of

2-15  Insurance of the Department of Business and Industry and the

2-16  Division concerning the qualifications of employers as self-insured

2-17  employers pursuant to NRS 616B.300 or as an association of self-

2-18  insured public or private employers pursuant to NRS 616B.353.

2-19      4.  On or before March 1 of each year, the Administrator shall

2-20  make a report of each audit to the Legislature, if it is in session, or to

2-21  the Interim Finance Committee if the Legislature is not in session.

2-22      Sec. 6.  NRS 616B.527 is hereby amended to read as follows:

2-23      616B.527  1.  A self-insured employer, an association of self-

2-24  insured public or private employers or a private carrier may:

2-25      (a) [Enter] Except as otherwise provided in section 4 of this act,

2-26  enter into a contract or contracts with one or more organizations for

2-27  managed care to provide comprehensive medical and health care

2-28  services to employees for injuries and diseases that are compensable

2-29  pursuant to chapters 616A to 617, inclusive, of NRS.

2-30      (b) Enter into a contract or contracts with providers of health

2-31  care, including, without limitation, physicians who provide primary

2-32  care, specialists, pharmacies, physical therapists, radiologists,

2-33  nurses, diagnostic facilities, laboratories, hospitals and facilities that

2-34  provide treatment to outpatients, to provide medical and health care

2-35  services to employees for injuries and diseases that are compensable

2-36  pursuant to chapters 616A to 617, inclusive, of NRS.

2-37      (c) Require employees to obtain medical and health care

2-38  services for their industrial injuries from those organizations and

2-39  persons with whom the self-insured employer, association or private

2-40  carrier has contracted pursuant to paragraphs (a) and (b), or as the

2-41  self-insured employer, association or private carrier otherwise

2-42  prescribes.

2-43      (d) Except as otherwise provided in subsection 3 of NRS

2-44  616C.090, require employees to obtain the approval of the self-

2-45  insured employer, association or private carrier before obtaining

3-1  medical and health care services for their industrial injuries from a

3-2  provider of health care who has not been previously approved by the

3-3  self-insured employer, association or private carrier.

3-4  2.  An organization for managed care with whom a self-insured

3-5  employer, association of self-insured public or private employers or

3-6  a private carrier has contracted pursuant to this section shall comply

3-7  with the provisions of NRS 616B.528, 616B.5285 and 616B.529.

3-8  Sec. 7.  NRS 616C.110 is hereby amended to read as follows:

3-9  616C.110  1.  For the purposes of NRS 616B.557, 616B.578,

3-10  616B.587, 616C.490 and 617.459 [,] :

3-11      (a) Not later than August 1, 2003, the Division shall adopt

3-12  regulations incorporating the American Medical Association’s

3-13  Guides to the Evaluation of Permanent Impairment , 5th edition, by

3-14  reference . [and may amend those regulations from time to time as it

3-15  deems necessary. In adopting the] The regulations:

3-16          (1) Must become effective on October 1, 2003; and

3-17          (2) Must be applied to all examinations for a permanent

3-18  partial disability that are conducted on or after October 1, 2003,

3-19  regardless of the date of the injury, until regulations incorporating

3-20  the 6th edition by reference have become effective pursuant to

3-21  paragraph (b).

3-22      (b) Beginning with the 6th edition and continuing for each

3-23  edition thereafter, the Division shall adopt regulations

3-24  incorporating the most recent edition of the American Medical

3-25  Association’s Guides to the Evaluation of Permanent Impairment [,

3-26  the Division shall consider] by reference. The regulations:

3-27          (1) Must become effective not later than 18 months after

3-28  the most recent edition [most recently] is published by the

3-29  American Medical Association [.] ; and

3-30          (2) Must be applied to all examinations for a permanent

3-31  partial disability that are conducted on or after the effective date

3-32  of the regulations, regardless of the date of injury, until

3-33  regulations incorporating the next edition by reference have

3-34  become effective pursuant to this paragraph.

3-35      2.  After adopting the regulations required pursuant to

3-36  subsection 1, the Division may amend those regulations as it

3-37  deems necessary, except that the amendments to those regulations:

3-38      (a) Must be consistent with the edition of the American

3-39  Medical Association’s Guides to the Evaluation of Permanent

3-40  Impairment most recently adopted by the Division;

3-41      (b) Must not incorporate any contradictory matter from any

3-42  other edition of the American Medical Association’s Guides to the

3-43  Evaluation of Permanent Impairment; and

4-1  (c) Must not consider any factors other than the degree of

4-2  physical impairment of the whole man in calculating the

4-3  entitlement to compensation.

4-4  3.  If the edition of the American Medical Association’s

4-5  Guides to the Evaluation of Permanent Impairment most recently

4-6  adopted by the Division [contain] contains more than one method of

4-7  determining the rating of an impairment, the Administrator shall

4-8  designate by regulation the method from that edition which must be

4-9  used to rate an impairment pursuant to NRS 616C.490.

4-10      Sec. 8.  NRS 616C.340 is hereby amended to read as follows:

4-11      616C.340  1.  The Governor shall appoint one or more appeals

4-12  officers to conduct hearings [in contested claims for compensation

4-13  pursuant to NRS 616C.360.] and appeals as required pursuant to

4-14  chapters 616A to 617, inclusive, of NRS. Each appeals officer shall

4-15  hold office for 2 years [from] after the date of his appointment and

4-16  until his successor is appointed and has qualified. Each appeals

4-17  officer is entitled to receive an annual salary in an amount provided

4-18  by law and is in the unclassified service of the State.

4-19      2.  Each appeals officer must be an attorney who has been

4-20  licensed to practice law before all the courts of this state for at least

4-21  2 years. Except as otherwise provided in NRS 7.065, an appeals

4-22  officer shall not engage in the private practice of law.

4-23      3.  If an appeals officer determines that he has a personal

4-24  interest or a conflict of interest, directly or indirectly, in any case

4-25  which is before him, he shall disqualify himself from hearing the

4-26  case.

4-27      4.  The Governor may appoint one or more special appeals

4-28  officers to conduct hearings [in contested claims for compensation

4-29  pursuant to NRS 616C.360.] and appeals as required pursuant to

4-30  chapters 616A to 617, inclusive, of NRS. The Governor shall not

4-31  appoint an attorney who represents persons in actions related to

4-32  claims for compensation to serve as a special appeals officer.

4-33      5.  A special appeals officer appointed pursuant to subsection 4

4-34  is vested with the same powers as a regular appeals officer. A

4-35  special appeals officer may hear any case in which a regular appeals

4-36  officer has a conflict, or any case assigned to him by the Senior

4-37  Appeals Officer to assist with a backlog of cases. A special appeals

4-38  officer is entitled to be paid at an hourly rate, as determined by the

4-39  Department of Administration.

4-40      6.  The decision of an appeals officer is the final and binding

4-41  administrative determination of a claim for compensation under

4-42  chapters 616A to 616D, inclusive, or chapter 617 of NRS, and the

4-43  whole record consists of all evidence taken at the hearing before the

4-44  appeals officer and any findings of fact and conclusions of law

4-45  based thereon.

5-1  Sec. 9.  NRS 616C.345 is hereby amended to read as follows:

5-2  616C.345  1.  Any party aggrieved by a decision of the

5-3  hearing officer relating to a claim for compensation may appeal

5-4  from the decision by filing a notice of appeal with an appeals officer

5-5  within 30 days after the date of the decision.

5-6  2.  If a dispute is required to be submitted to a procedure for

5-7  resolving complaints pursuant to NRS 616C.305 and:

5-8  (a) A final determination was rendered pursuant to that

5-9  procedure; or

5-10      (b) The dispute was not resolved pursuant to that procedure

5-11  within 14 days after it was submitted,

5-12  any party to the dispute may file a notice of appeal within 70 days

5-13  after the date on which the final determination was mailed to the

5-14  employee, or his dependent, or the unanswered request for

5-15  resolution was submitted. Failure to render a written determination

5-16  within 30 days after receipt of such a request shall be deemed by the

5-17  appeals officer to be a denial of the request.

5-18      3.  Except as otherwise provided in NRS 616C.380, the filing of

5-19  a notice of appeal does not automatically stay the enforcement of the

5-20  decision of a hearing officer or a determination rendered pursuant to

5-21  NRS 616C.305. The appeals officer may order a stay, when

5-22  appropriate, upon the application of a party. If such an application is

5-23  submitted, the decision is automatically stayed until a determination

5-24  is made concerning the application. A determination on the

5-25  application must be made within 30 days after the filing of

5-26  the application. If a stay is not granted by the officer after reviewing

5-27  the application, the decision must be complied with within 10 days

5-28  after the date of the refusal to grant a stay.

5-29      4.  Except as otherwise provided in this subsection, [the appeals

5-30  officer shall,] within 10 days after receiving a notice of appeal

5-31  pursuant to this section or NRS 616D.140, or within 10 days after

5-32  receiving a notice of a contested claim pursuant to subsection 5 of

5-33  NRS 616C.315, the appeals officer shall schedule a hearing on the

5-34  merits of the appeal or contested claim for a date and time within 90

5-35  days after his receipt of the notice and give notice by mail or by

5-36  personal service to all parties to the matter and their attorneys or

5-37  agents at least 30 days before the date and time scheduled. A request

5-38  to schedule the hearing for a date and time which is:

5-39      (a) Within 60 days after the receipt of the notice of appeal or

5-40  contested claim; or

5-41      (b) More than 90 days after the receipt of the notice or

5-42  claim,

5-43  may be submitted to the appeals officer only if all parties to the

5-44  appeal or contested claim agree to the request.

6-1  5.  An appeal or contested claim may be continued upon written

6-2  stipulation of all parties, or upon good cause shown.

6-3  6.  Failure to file a notice of appeal within the period specified

6-4  in subsection 1 or 2 may be excused if the party aggrieved shows by

6-5  a preponderance of the evidence that he did not receive the notice of

6-6  the determination and the forms necessary to appeal the

6-7  determination. The claimant, employer or insurer shall notify the

6-8  hearing officer of a change of address.

6-9  Sec. 10.  NRS 616C.475 is hereby amended to read as follows:

6-10      616C.475  1.  Except as otherwise provided in this section,

6-11  NRS 616C.175 and 616C.390, every employee in the employ of an

6-12  employer, within the provisions of chapters 616A to 616D,

6-13  inclusive, of NRS, who is injured by accident arising out of and in

6-14  the course of employment, or his dependents, is entitled to receive

6-15  for the period of temporary total disability, 66 2/3 percent of the

6-16  average monthly wage.

6-17      2.  Except as otherwise provided in NRS 616B.028 and

6-18  616B.029, an injured employee or his dependents are not entitled to

6-19  accrue or be paid any benefits for a temporary total disability during

6-20  the time the injured employee is incarcerated. The injured employee

6-21  or his dependents are entitled to receive such benefits when the

6-22  injured employee is released from incarceration if he is certified as

6-23  temporarily totally disabled by a physician or chiropractor.

6-24      3.  If a claim for the period of temporary total disability is

6-25  allowed, the first payment pursuant to this section must be issued by

6-26  the insurer within 14 working days after receipt of the initial

6-27  certification of disability and regularly thereafter.

6-28      4.  Any increase in compensation and benefits effected by the

6-29  amendment of subsection 1 is not retroactive.

6-30      5.  Payments for a temporary total disability must cease when:

6-31      (a) A physician or chiropractor determines that the employee is

6-32  physically capable of any gainful employment for which the

6-33  employee is suited, after giving consideration to the employee’s

6-34  education, training and experience;

6-35      (b) The employer offers the employee light-duty employment or

6-36  employment that is modified according to the limitations or

6-37  restrictions imposed by a physician or chiropractor pursuant to

6-38  subsection 7; or

6-39      (c) Except as otherwise provided in NRS 616B.028 and

6-40  616B.029, the employee is incarcerated.

6-41      6.  Each insurer may, with each check that it issues to an injured

6-42  employee for a temporary total disability, include a form approved

6-43  by the Division for the injured employee to request continued

6-44  compensation for the temporary total disability.

7-1  7.  A certification of disability issued by a physician or

7-2  chiropractor must:

7-3  (a) Include the period of disability and a description of any

7-4  physical limitations or restrictions imposed upon the work of the

7-5  employee;

7-6  (b) Specify whether the limitations or restrictions are permanent

7-7  or temporary; and

7-8  (c) Be signed by the treating physician or chiropractor

7-9  authorized pursuant to NRS 616B.527 or appropriately chosen

7-10  pursuant to subsection 3 of NRS 616C.090.

7-11      8.  If the certification of disability specifies that the physical

7-12  limitations or restrictions are temporary, the employer of the

7-13  employee at the time of his accident [is not required to comply] may

7-14  offer temporary, light-duty employment to the employee. If the

7-15  employer makes such an offer, the employer shall confirm

7-16  the offer in writing within 10 days after making the offer. The

7-17  making, acceptance or rejection of an offer of temporary, light-

7-18  duty employment pursuant to this subsection does not affect the

7-19  eligibility of the employee to receive vocational rehabilitation

7-20  services, including compensation, and does not exempt the

7-21  employer from complying with NRS 616C.545 to 616C.575,

7-22  inclusive, and 616C.590 or the regulations adopted by the Division

7-23  governing vocational rehabilitation services . [if the employer offers

7-24  the employee temporary, light -duty employment.] Any offer of

7-25  temporary, light-duty employment made by the employer must

7-26  specify a position that:

7-27      (a) Is substantially similar to the employee’s position at the time

7-28  of his injury in relation to the location of the employment and the

7-29  hours he is required to work; [and]

7-30      (b) Provides a gross wage that is:

7-31          (1) If the position is in the same classification of

7-32  employment, equal to the gross wage the employee was earning at

7-33  the time of his injury; or

7-34          (2) If the position is not in the same classification of

7-35  employment, substantially similar to the gross wage the employee

7-36  was earning at the time of his injury[.] ; and

7-37      (c) Has the same employment benefits as the position of the

7-38  employee at the time of his injury.

7-39      Sec. 11.  NRS 616C.495 is hereby amended to read as follows:

7-40      616C.495  1.  Except as otherwise provided in NRS 616C.380,

7-41  an award for a permanent partial disability may be paid in a lump

7-42  sum under the following conditions:

7-43      (a) A claimant injured on or after July 1, 1973, and before

7-44  July 1, 1981, who incurs a disability that does not exceed 12 percent

7-45  may elect to receive his compensation in a lump sum. A claimant

8-1  injured on or after July 1, 1981, and before July 1, 1995, who incurs

8-2  a disability that does not exceed 25 percent may elect to receive his

8-3  compensation in a lump sum.

8-4  (b) The spouse, or in the absence of a spouse, any dependent

8-5  child of a deceased claimant injured on or after July 1, 1973, who is

8-6  not entitled to compensation in accordance with NRS 616C.505, is

8-7  entitled to a lump sum equal to the present value of the deceased

8-8  claimant’s undisbursed award for a permanent partial disability.

8-9  (c) Any claimant injured on or after July 1, 1981, and before

8-10  July 1, 1995, who incurs a disability that exceeds 25 percent may

8-11  elect to receive his compensation in a lump sum equal to the present

8-12  value of an award for a disability of 25 percent. If the claimant

8-13  elects to receive compensation pursuant to this paragraph, the

8-14  insurer shall pay in installments to the claimant that portion of the

8-15  claimant’s disability in excess of 25 percent.

8-16      (d) Any claimant injured on or after July 1, 1995, may elect to

8-17  receive his compensation in a lump sum in accordance with

8-18  regulations adopted by the Administrator and approved by the

8-19  Governor. The Administrator shall adopt regulations for

8-20  determining the eligibility of such a claimant to receive all or any

8-21  portion of his compensation in a lump sum. Such regulations may

8-22  include the manner in which an award for a permanent partial

8-23  disability may be paid to such a claimant in installments.

8-24  Notwithstanding the provisions of NRS 233B.070, any regulation

8-25  adopted pursuant to this paragraph does not become effective unless

8-26  it is first approved by the Governor.

8-27      2.  If the claimant elects to receive his payment for a permanent

8-28  partial disability in a lump sum pursuant to subsection 1, all of his

8-29  benefits for compensation terminate. His acceptance of that payment

8-30  constitutes a final settlement of all factual and legal issues in the

8-31  case. By so accepting , he waives all of his rights regarding the

8-32  claim, including the right to appeal from the closure of the case or

8-33  the percentage of his disability, except:

8-34      (a) His right to reopen his claim according to the provisions of

8-35  NRS 616C.390; [and]

8-36      (b) Any counseling, training or other rehabilitative services

8-37  provided by the insurer [.] ; and

8-38      (c) His right to receive a benefit penalty in accordance with

8-39  NRS 616D.120.

8-40  The claimant must be advised in writing of the provisions of this

8-41  subsection when he demands his payment in a lump sum, and has 20

8-42  days after the mailing or personal delivery of [this] the notice within

8-43  which to retract or reaffirm his demand, before payment may be

8-44  made and his election becomes final.

9-1  3.  Any lump-sum payment which has been paid on a claim

9-2  incurred on or after July 1, 1973, must be supplemented if necessary

9-3  to conform to the provisions of this section.

9-4  4.  Except as otherwise provided in this subsection, the total

9-5  lump-sum payment for disablement must not be less than one-half

9-6  the product of the average monthly wage multiplied by the

9-7  percentage of disability. If the claimant received compensation in

9-8  installment payments for his permanent partial disability before

9-9  electing to receive his payment for that disability in a lump sum, the

9-10  lump-sum payment must be calculated for the remaining payment of

9-11  compensation.

9-12      5.  The lump sum payable must be equal to the present value of

9-13  the compensation awarded, less any advance payment or lump sum

9-14  previously paid. The present value must be calculated using monthly

9-15  payments in the amounts prescribed in subsection 7 of NRS

9-16  616C.490 and actuarial annuity tables adopted by the Division. The

9-17  tables must be reviewed annually by a consulting actuary.

9-18      6.  If a claimant would receive more money by electing to

9-19  receive compensation in a lump sum than he would if he receives

9-20  installment payments, he may elect to receive the lump-sum

9-21  payment.

9-22      Sec. 12.  NRS 616C.590 is hereby amended to read as follows:

9-23      616C.590  1.  Except as otherwise provided in this section, an

9-24  injured employee is not eligible for vocational rehabilitation

9-25  services, unless:

9-26      (a) The treating physician or chiropractor approves the return of

9-27  the injured employee to work but imposes permanent restrictions

9-28  that prevent the injured employee from returning to the position that

9-29  he held at the time of his injury;

9-30      (b) The injured employee’s employer does not offer

9-31  employment that:

9-32          (1) The employee is eligible for considering the restrictions

9-33  imposed pursuant to paragraph (a); [and]

9-34          (2) Provides a gross wage that is equal to or greater than 80

9-35  percent of the gross wage that the employee was earning at the time

9-36  of his injury; and

9-37          (3) Has the same employment benefits as the position of the

9-38  employee at the time of his injury; and

9-39      (c) The injured employee is unable to return to gainful

9-40  employment with any other employer at a gross wage that is equal

9-41  to or greater than 80 percent of the gross wage that the employee

9-42  was earning at the time of his injury.

9-43      2.  If the treating physician or chiropractor imposes permanent

9-44  restrictions on the injured employee for the purposes of paragraph

9-45  (a) of subsection 1, he shall specify in writing:

10-1      (a) The medically objective findings upon which his

10-2  determination is based; and

10-3      (b) A detailed description of the restrictions.

10-4  The treating physician or chiropractor shall deliver a copy of the

10-5  findings and the description of the restrictions to the insurer.

10-6      3.  If there is a question as to whether the restrictions imposed

10-7  upon the injured employee are permanent, the employee may

10-8  receive vocational rehabilitation services until a final determination

10-9  concerning the duration of the restrictions is made.

10-10     4.  Vocational rehabilitation services must cease as soon as the

10-11  injured employee is no longer eligible for the services pursuant to

10-12  subsection 1.

10-13     5.  An injured employee is not entitled to vocational

10-14  rehabilitation services solely because the position that he held at the

10-15  time of his injury is no longer available.

10-16     6.  An injured employee or his dependents are not entitled to

10-17  accrue or be paid any money for vocational rehabilitation services

10-18  during the time the injured employee is incarcerated.

10-19     7.  Any injured employee eligible for compensation other than

10-20  accident benefits may not be paid those benefits if he refuses

10-21  counseling, training or other vocational rehabilitation services

10-22  offered by the insurer. Except as otherwise provided in NRS

10-23  616B.028 and 616B.029, an injured employee shall be deemed to

10-24  have refused counseling, training and other vocational rehabilitation

10-25  services while he is incarcerated.

10-26     8.  If an insurer cannot locate an injured employee for whom it

10-27  has ordered vocational rehabilitation services, the insurer may close

10-28  his claim 21 days after the insurer determines that the employee

10-29  cannot be located. The insurer shall make a reasonable effort to

10-30  locate the employee.

10-31     9.  The reappearance of the injured employee after his claim has

10-32  been closed does not automatically reinstate his eligibility for

10-33  vocational rehabilitation benefits. If the employee wishes to

10-34  reestablish his eligibility for [such] those benefits, he must file a

10-35  written application with the insurer to reinstate his claim. The

10-36  insurer shall reinstate the employee’s claim if good cause is shown

10-37  for the employee’s absence.

10-38     Sec. 13.   Chapter 616D is hereby amended by adding thereto

10-39  a new section to read as follows:

10-40     1.  If a person wishes to contest a decision of the

10-41  Administrator to impose an administrative fine pursuant to this

10-42  chapter or chapter 616A, 616B, 616C or 617 of NRS, he must file

10-43  a notice of appeal with an appeals officer in accordance with this

10-44  section. The notice of appeal must set forth the reasons the

10-45  proposed administrative fine should not be imposed.

11-1      2.  A person who is aggrieved by a written determination of

11-2  the Administrator may appeal from the determination by filing a

11-3  request for a hearing before an appeals officer. The request must

11-4  be filed within 30 days after the date on which the notice of the

11-5  Administrator’s determination was mailed by the Administrator.

11-6      3.  If a notice of appeal is not filed as required by this section,

11-7  the imposition of the administrative fine shall be deemed a final

11-8  order and is not subject to review by any court or agency.

11-9      4.  An administrative fine imposed pursuant to this chapter or

11-10  chapter 616A, 616B, 616C or 617 of NRS must be paid to the

11-11  Division. If the violation for which the fine is levied was

11-12  committed by a person while acting within the course and scope of

11-13  his agency or employment, the fine must be paid by his principal

11-14  or employer. The fine may be recovered in a civil action brought

11-15  in the name of the Division in a court of competent jurisdiction in

11-16  the county in which the violation occurred or in which the person

11-17  against whom the fine is levied has his principal place of business.

11-18     Sec. 14.  NRS 616D.120 is hereby amended to read as follows:

11-19     616D.120  1.  Except as otherwise provided in this section, if

11-20  the Administrator determines that an insurer, organization for

11-21  managed care, health care provider, third-party administrator or

11-22  employer has:

11-23     (a) [Through fraud, coercion, duress or undue influence:

11-24         (1)] Induced a claimant to fail to report an accidental injury

11-25  or occupational disease;

11-26         [(2) Persuaded]

11-27     (b) Without justification, persuaded a claimant to [settle] :

11-28         (1) Settle for an amount which is less than reasonable;

11-29         [(3) Persuaded a claimant to settle]

11-30         (2) Settle for an amount which is less than reasonable while a

11-31  hearing or an appeal is pending; or

11-32         [(4) Persuaded a claimant to accept]

11-33         (3) Accept less than the compensation found to be due him

11-34  by a hearing officer, appeals officer, court of competent jurisdiction,

11-35  written settlement agreement, written stipulation or the Division

11-36  when carrying out its duties pursuant to chapters 616A to 617,

11-37  inclusive, of NRS;

11-38     [(b)] (c) Refused to pay or unreasonably delayed payment to a

11-39  claimant of compensation or other relief found to be due him by a

11-40  hearing officer, appeals officer, court of competent jurisdiction,

11-41  written settlement agreement, written stipulation or the Division

11-42  when carrying out its duties pursuant to chapters 616A to 616D,

11-43  inclusive, or chapter 617 of NRS, if the refusal or delay occurs:

11-44         (1) Later than 10 days after the date of the settlement

11-45  agreement or stipulation;

12-1          (2) Later than 30 days after the date of the decision of a

12-2  court, hearing officer, appeals officer or the Division, unless a stay

12-3  has been granted; or

12-4          (3) Later than 10 days after a stay of the decision of a court,

12-5  hearing officer, appeals officer or the Division has been lifted;

12-6      [(c)] (d) Refused to process a claim for compensation pursuant

12-7  to chapters 616A to 616D, inclusive, or chapter 617 of NRS;

12-8      [(d)] (e) Made it necessary for a claimant to initiate proceedings

12-9  pursuant to chapters 616A to 616D, inclusive, or chapter 617 of

12-10  NRS for compensation or other relief found to be due him by a

12-11  hearing officer, appeals officer, court of competent jurisdiction,

12-12  written settlement agreement, written stipulation or the Division

12-13  when carrying out its duties pursuant to chapters 616A to 616D,

12-14  inclusive, or chapter 617 of NRS;

12-15     [(e)] (f) Failed to comply with the Division’s regulations

12-16  covering the payment of an assessment relating to the funding of

12-17  costs of administration of chapters 616A to 617, inclusive, of NRS;

12-18     [(f)] (g) Failed to provide or unreasonably delayed payment to

12-19  an injured employee or reimbursement to an insurer pursuant to

12-20  NRS 616C.165; or

12-21     [(g)] (h) Intentionally failed to comply with any provision of, or

12-22  regulation adopted pursuant to, this chapter or chapter 616A, 616B,

12-23  616C or 617 of NRS,

12-24  the Administrator shall impose an administrative fine of $1,000 for

12-25  each initial violation, or a fine of $10,000 for a second or

12-26  subsequent violation.

12-27     2.  Except as otherwise provided in chapters 616A to 616D,

12-28  inclusive, or chapter 617 of NRS, if the Administrator determines

12-29  that an insurer, organization for managed care, health care provider,

12-30  third-party administrator or employer has failed to comply with any

12-31  provision of this chapter or chapter 616A, 616B, 616C or 617 of

12-32  NRS, or any regulation adopted pursuant thereto, the Administrator

12-33  may take any of the following actions:

12-34     (a) Issue a notice of correction for:

12-35         (1) A minor violation, as defined by regulations adopted by

12-36  the Division; or

12-37         (2) A violation involving the payment of compensation in an

12-38  amount which is greater than that required by any provision of this

12-39  chapter or chapter 616A, 616B, 616C or 617 of NRS, or any

12-40  regulation adopted pursuant thereto.

12-41  The notice of correction must set forth with particularity the

12-42  violation committed and the manner in which the violation may be

12-43  corrected. The provisions of this section do not authorize the

12-44  Administrator to modify or negate in any manner a determination or

12-45  any portion of a determination made by a hearing officer, appeals

13-1  officer or court of competent jurisdiction or a provision contained in

13-2  a written settlement agreement or written stipulation.

13-3      (b) Impose an administrative fine for:

13-4          (1) A second or subsequent violation for which a notice of

13-5  correction has been issued pursuant to paragraph (a); or

13-6          (2) Any other violation of this chapter or chapter 616A,

13-7  616B, 616C or 617 of NRS, or any regulation adopted pursuant

13-8  thereto, for which a notice of correction may not be issued pursuant

13-9  to paragraph (a).

13-10  The fine imposed [may] must not be greater than $250 for an initial

13-11  violation, or more than $1,000 for any second or subsequent

13-12  violation.

13-13     (c) Order a plan of corrective action to be submitted to the

13-14  Administrator within 30 days after the date of the order.

13-15     3.  If the Administrator determines that a violation of any of the

13-16  provisions of paragraphs (a) to [(d),] (e), inclusive, of subsection 1

13-17  has occurred, the Administrator shall order the insurer, organization

13-18  for managed care, health care provider, third-party administrator or

13-19  employer to pay to the claimant a benefit penalty in an amount that

13-20  is not less than $5,000 and not greater than $25,000. To determine

13-21  the amount of the benefit penalty, the Administrator shall consider

13-22  the degree of physical harm suffered by the injured employee or his

13-23  dependents as a result of the violation of paragraph (a), (b), (c) , [or]

13-24  (d) or (e) of subsection 1, the amount of compensation found to be

13-25  due the claimant , and the number of fines and benefit penalties

13-26  previously imposed against the insurer, organization for managed

13-27  care, health care provider, third-party administrator or employer

13-28  pursuant to this section. If this is the third violation within 5 years

13-29  for which a benefit penalty has been imposed against the insurer,

13-30  organization for managed care, health care provider, third-party

13-31  administrator or employer, the Administrator shall also consider the

13-32  degree of economic harm suffered by the injured employee or his

13-33  dependents as a result of the violation of paragraph (a), (b), (c) , [or]

13-34  (d) or (e) of subsection 1. Except as otherwise provided in this

13-35  section, the benefit penalty is for the benefit of the claimant and

13-36  must be paid directly to him within 10 days after the date of the

13-37  Administrator’s determination. If the claimant is the injured

13-38  employee and he dies before the benefit penalty is paid to him, the

13-39  benefit penalty must be paid to his estate. Proof of the payment of

13-40  the benefit penalty must be submitted to the Administrator within 10

13-41  days after the date of his determination unless an appeal is filed

13-42  pursuant to NRS 616D.140. Any compensation to which the

13-43  claimant may otherwise be entitled pursuant to chapters 616A to

13-44  616D, inclusive, or chapter 617 of NRS must not be reduced by the

13-45  amount of any benefit penalty received pursuant to this subsection.

14-1      4.  In addition to any fine or benefit penalty imposed pursuant

14-2  to this section, the Administrator may assess against an insurer who

14-3  violates any regulation concerning the reporting of claims

14-4  expenditures or premiums received that are used to calculate an

14-5  assessment, an administrative penalty of up to twice the amount of

14-6  any underpaid assessment.

14-7      5.  If:

14-8      (a) The Administrator determines that a person has violated any

14-9  of the provisions of NRS 616D.200, 616D.220, 616D.240,

14-10  616D.300, 616D.310 or 616D.350 to 616D.440, inclusive; and

14-11     (b) The Fraud Control Unit for Industrial Insurance of the Office

14-12  of the Attorney General established pursuant to NRS 228.420

14-13  notifies the Administrator that the unit will not prosecute the person

14-14  for that violation,

14-15  the Administrator shall impose an administrative fine of not more

14-16  than $10,000.

14-17     6.  Two or more fines of $1,000 or more imposed in 1 year for

14-18  acts enumerated in subsection 1 must be considered by the

14-19  Commissioner as evidence for the withdrawal of:

14-20     (a) A certificate to act as a self-insured employer.

14-21     (b) A certificate to act as an association of self-insured public or

14-22  private employers.

14-23     (c) A certificate of registration as a third-party administrator.

14-24     7.  The Commissioner may, without complying with the

14-25  provisions of NRS 616B.327 or 616B.431, withdraw the

14-26  certification of a self-insured employer, association of self-insured

14-27  public or private employers or third-party administrator if, after a

14-28  hearing, it is shown that the self-insured employer, association of

14-29  self-insured public or private employers or third-party administrator

14-30  violated any provision of subsection 1.

14-31     Sec. 15.  NRS 616D.130 is hereby amended to read as follows:

14-32     616D.130  1.  Upon receipt of a complaint for a violation of

14-33  subsection 1 of NRS 616D.120, or if the Administrator has reason to

14-34  believe that such a violation has occurred, the Administrator shall

14-35  cause to be conducted an investigation of the alleged violation.

14-36  Except as otherwise provided in subsection 2, the Administrator

14-37  shall, within 30 days after initiating the investigation:

14-38     (a) Render a determination. The determination must include his

14-39  findings of fact and, if he determines that a violation has occurred,

14-40  one or more of the following:

14-41         (1) The amount of any fine required to be paid pursuant to

14-42  NRS 616D.120.

14-43         (2) The amount of any benefit penalty required to be paid to

14-44  a claimant pursuant to NRS 616D.120.

15-1          (3) A plan of corrective action to be taken by the insurer,

15-2  organization for managed care, health care provider, third-party

15-3  administrator or employer, including the manner and time within

15-4  which the violation must be corrected.

15-5          (4) A requirement that notice of the violation be given to the

15-6  appropriate agency that regulates the activities of the violator.

15-7      (b) Notify the Commissioner if he determines that a violation

15-8  was committed by a self-insured employer, association of self-

15-9  insured public or private employers or third-party administrator.

15-10     2.  Upon receipt of a complaint for any violation of paragraph

15-11  (a) [or] , (b), (c) or (d) of subsection 1 of NRS 616D.120, or if the

15-12  Administrator has reason to believe that such a violation has

15-13  occurred, the Administrator shall complete the investigation

15-14  required by subsection 1 within [120] 60 days and, within 30 days

15-15  after the completion of the investigation, render a determination and

15-16  notify the Commissioner if he determines that a violation was

15-17  committed by a self-insured employer, association of self-insured

15-18  public or private employers or third-party administrator.

15-19     3.  If, based upon the Administrator’s findings of fact, he

15-20  determines that a violation has not occurred, he shall issue a

15-21  determination to that effect.

15-22     Sec. 16.  NRS 616D.140 is hereby amended to read as follows:

15-23     616D.140  1.  If a person wishes to contest a decision of the

15-24  Administrator to impose [an administrative fine] or refuse to impose

15-25  a benefit penalty pursuant to [this chapter or chapter 616A, 616B,

15-26  616C or 617 of NRS,] NRS 616D.120, he must file a notice of

15-27  appeal with [the Division within 10 days after receipt of the

15-28  Administrator’s decision, showing why] an appeals officer in

15-29  accordance with this section. The notice of appeal must set forth

15-30  the reasons the proposed [fine or] benefit penalty should or should

15-31  not be imposed.

15-32     2.  [If a notice of appeal is filed as required by subsection 1, the

15-33  Administrator shall, in accordance with the provisions of NRS

15-34  233B.121, issue a notice of hearing that must include a date for a

15-35  hearing on the matter, which must be no sooner than 30 days after

15-36  the notice of appeal is filed. The Administrator may grant a

15-37  continuance of the hearing upon a showing of good cause.] A

15-38  person who is aggrieved by:

15-39     (a) A written determination of the Administrator; or

15-40     (b) The failure of the Administrator to respond within 90 days

15-41  to a written request mailed to the Administrator by the person who

15-42  is aggrieved,

15-43  may appeal from the determination or failure to respond by filing

15-44  a request for a hearing before an appeals officer. The request

15-45  must be filed within 30 days after the date on which the notice of

16-1  the Administrator’s determination was mailed by the

16-2  Administrator or within 100 days after the date on which the

16-3  unanswered written request was mailed to the Administrator, as

16-4  applicable. The failure of the Administrator to respond to a written

16-5  request for a determination within 90 days after receipt of

16-6  the request shall be deemed by the appeals officer to be a denial of

16-7  the request.

16-8      3.  If a notice of appeal is not filed as required by this section,

16-9  the imposition of or refusal to impose the [fine or] benefit penalty

16-10  shall be deemed a final order and is not subject to review by any

16-11  court or agency.

16-12     4.  [Except as otherwise provided in NRS 616A.467, a] A

16-13  hearing held pursuant to this section must be conducted by the

16-14  [Administrator or a person designated by him. A record of the

16-15  hearing must be kept but it need not be transcribed unless it is

16-16  requested by the person against whom the order or notice of

16-17  violation has been issued and that person pays the cost of

16-18  transcription. The Administrator] appeals officer as a hearing de

16-19  novo. The appeals officer shall render a written decision on the

16-20  appeal. Except as otherwise provided in this section, the provisions

16-21  of NRS 616C.345 to 616C.385, inclusive, apply to an appeal filed

16-22  pursuant to this section.

16-23     5.  [An administrative fine imposed pursuant to this chapter or

16-24  chapter 616A, 616B, 616C or 617 of NRS must be paid to the

16-25  Division. If the violation for which the fine is levied was committed

16-26  by a person while acting within the course and scope of his agency

16-27  or employment, the fine must be paid by his principal or employer.

16-28  The fine may be recovered in a civil action brought in the name of

16-29  the Division in a court of competent jurisdiction in the county in

16-30  which the violation occurred or in which the person against whom

16-31  the fine is levied has his principal place of business.

16-32     6.] A benefit penalty imposed pursuant to NRS 616D.120 must

16-33  be paid to the claimant on whose behalf it is imposed. If such a

16-34  payment is not made within the period required by NRS 616D.120,

16-35  the benefit penalty may be recovered in a civil action brought by the

16-36  Administrator on behalf of the claimant in a court of competent

16-37  jurisdiction in the county in which the claimant resides, in which the

16-38  violation occurred or in which the person who is required to pay the

16-39  benefit penalty has his principal place of business.

16-40     [7.] 6. Any party aggrieved by a decision [of the Administrator

16-41  rendered] issued pursuant to this section by an appeals officer may

16-42  appeal the decision directly to the district court.

16-43     Sec. 17.  NRS 616D.280 is hereby repealed.

 

17-1      Sec. 18.  1. This section becomes effective upon passage and

17-2  approval.

17-3      2.  Section 7 of this act becomes effective upon passage and

17-4  approval for the purpose of adopting regulations and on October 1,

17-5  2003, for all other purposes.

17-6      3.  Sections 1 to 6, inclusive, and 8 to 17, inclusive, of this act

17-7  become effective on October 1, 2003.

 

17-8  TEXT OF REPEALED SECTION

 

17-9      616D.280  Injury to employee caused by absence of safety

17-10  device.

17-11     1.  If any workman is injured because of the absence of any

17-12  safeguard or protection required to be provided or maintained by, or

17-13  pursuant to, any statute, ordinance, or any divisional regulation

17-14  under any statute, the employer is liable to the Division for a penalty

17-15  of not less than $300 nor more than $2,000, to be collected in a civil

17-16  action at law by the Division.

17-17     2.  The provisions of subsection 1 do not apply if the absence of

17-18  the safeguard or protection is due to the removal thereof by the

17-19  injured workman himself, or with his knowledge by any fellow

17-20  workman, unless the removal is by order or direction of the

17-21  employer or superintendent or foreman of the employer.

17-22     3.  If the safeguard or protection is removed by the workman

17-23  himself, or with his consent is removed by any of his fellow

17-24  workmen, unless done by order or direction of the employer or

17-25  superintendent or foreman of the employer, the compensation of the

17-26  injured workman, as provided for by NRS 616C.405, 616C.425,

17-27  616C.435, 616C.440, 616C.445 and 616C.475 to 616C.505,

17-28  inclusive, must be reduced 25 percent.

 

17-29  H