Administrative Rule Review Report  #AR11-013

Legislative Service Office

29-Mar-11

 

AGENCY:                                 Department of Employment, Workers' Compensation Division.

 

DATE SUBMITTED:                   March 29, 2011.

 

SUBJECT:                                 Chapter 1, General Provisions; Chapter 7, Benefits; Chapter 9, Fee Schedules; and Chapter 10, Miscellaneous Medical Protocols.

 

NATURE OF RULES:                     Legislative and procedural.

 

STATUTORY AUTHORITY:         W.S. 27-14-802(a).

 

DETERMINATION OF PROCEDURAL COMPLIANCE BASED UPON INFORMATION SUBMITTED BY THE AGENCY TO LSO:              Apparently complete to date.

 

SUMMARY OF RULES:  The Wyoming Workers Safety and Compensation Division administers the Wyoming Worker’s Compensation Act.  These amendments make numerous amendments to existing rules, primarily regarding compensable medical benefits and claim procedures.  Significant amendments include:

 

•  Repeal of provisions regarding:

°  calculation of temporary total disability benefits for employees paid monthly;

°  continuation of temporary total disability benefits until the employee is rated for a permanent impairment;

°  procedure for payment of impairment benefits upon an uncontested impairment rating;

°  specific payment criteria for massage therapy;

°  exceptions to prohibition of payment for experimental care.

•  Adoption of specific criteria for adequacy and content of medical records to support medical bills;

•  Amendment of incorporated reference for payment of chiropractic bills;

•  Requirement for preapproval of physical therapy and chiropractic care in excess of adopted guidelines.

 

FINDINGS:  Except as provided below, the rules appear to be within the scope of statutory authority and legislative intent.

 

The existing rules adopt the August, 2005 edition of “Chiropractic Utilization Guidelines for the Care and Treatment of Injured Workers, as policy for the determination of compensability of appropriate and reasonable chiropractic treatment….”  Chapter 1, Section 4(m).  The amendment would change that to “the most recent edition.”  Incorporation by reference is authorized under the Wyoming Administrative Procedure Act at W.S. 16-3-103(h), which provides in part:

 

(h)  An agency may incorporate, by reference in its rules and without publishing the incorporated matter in full, all or any part of a code, standard, rule or regulation that has been adopted by an agency of the United States or of this state, another state or by a nationally recognized organization or association, provided:

….

(ii)  The reference in the rules of the incorporating agency fully identifies the incorporated matter by location, date and otherwise, and states that the rule does not include any later amendments or editions of the incorporated matter;

           

The Department’s final rule does not contain the "no later amendment" provision as required by W.S.16-3-103(h)(ii).

 

STAFF RECOMMENDATION:  The APA requires only substantial procedural compliance.  While failing to strictly comply, Chapter 10, Section 4(m) of the rules is considered by LSO to meet the substantial compliance requirement of the Wyoming Administrative Procedure Act, W.S. 16-3-101(c).  The recommendation is that Council request that the Governor ensure the rules are amended before filing with the Secretary of State, by including the statements required by the statutory provisions in bold above.  Making this purely technical amendments will ensure the agency and the public are aware of the statutory requirements.  If the rules are not so amended, the recommendation is that Council recommend the Governor not approve the rules and request the Department to readopt the rules, addressing the issues noted. 

 

 

 

 

                                                            _______________________

                                                            Gerald W. Laska

                                                            Staff Attorney

 

 

                                                            _______________________

                                                            Lynda G. Cook

                                                            Staff Attorney

 

 

 

 

 

 

GWL/