RULES AND REGULATIONS
Title 34--LABOR AND INDUSTRY
DEPARTMENT OF LABOR AND INDUSTRY
[34 PA. CODE CHS. 123, 125, 129 AND 143]
Workers' Compensation Health and Safety
[31 Pa.B. 3841] The Department of Labor and Industry (Department), Bureau of Workers' Compensation (Bureau), by this order, adopts amendments to clarify and provide detailed guidance for the uniform application of the health and safety provisions of the Workers' Compensation Act (act) (77 P. S. §§ 1-1041.4 and 2501-2626). These amendments, to read as set forth in Annex A, are to be added as Chapter 129 (relating to workers' compensation health and safety). Chapter 129 will further clarify and expand upon the previous interpretations of the act of July 2, 1993 (P. L. 190, No. 44) (Act 44) provided in the proposed rulemaking published at 29 Pa.B. 3161 (June 19, 1999). In response to comments received and meetings with affected parties, some changes have been made to the interpretations published in the statement of policy which appears in Chapter 143 (relating to workers' compensation health and safety--statement of policy), which the Department intends to delete with the addition of Chapter 129. This notice also includes the Department's interpretation of the provision of the act of June 24, 1996 (P. L. 350, No. 57) (Act 57) extending the one-time 5% discount for safety committee certification to a total of 5 years.
In addition, the Department is amending language in § 123.202 (relating to qualifications) to delete the requirement that an expert, who qualifies under § 123.202(4), shall provide vocational rehabilitation services which include vocational testing and assessment. It was brought to the attention of the Department, after the publication of the regulations, that this requirement may exclude experts, otherwise qualified under § 123.202(4)'s experience requirements. Section 123.202(4) was specifically designed to allow vocational experts, which had at least 5 years of experience prior to August 23, 1996, to continue to be qualified to offer their services as a vocational expert. Therefore, to ensure the proper interpretation of that section, the vocational testing and assessment requirement is deleted.
Finally, the Department amends §§ 125.133(c)(4) and 125.155(a) (relating to application; and homogeneity). Section 125.133(c)(4) requires an applicant for group self-insurance to explain how it meets the homogeneity requirement of section 801 of the act (77 P. S. § 1036.1). Section 125.155(a) provides one set of conditions for satisfying the homogeneity requirement. These sections refer to a member's premium and manual premium, respectively, in their application. However, as a result of recent amendments to Chapter 125 (relating to workers' compensation self-insurance), neither of these terms is defined. The Department intends to replace premium and manual premium with contributions, which is a defined term under § 125.132 (relating to definitions). This change will have no practical effect on the application of the sections to existing or proposed group self-insurance funds.
Statutory Authority
These amendments are adopted under the authority provided in sections 401.1 and 435 of the act (77 P. S. §§ 710 and 991), which provides that the Department will adopt regulations reasonably calculated to explain and enforce provisions of the act. These amendments are adopted under the additional authority of sections 1001 and 1002 of the act (77 P. S. §§ 1038.1 and 1038.2), which require insurers and self-insurers to have accident and illness prevention programs as regulated by the Department, and also encourage the establishment of workplace safety committees under criteria established by the Department.
Background
Act 44 significantly amended the act. Among other things, Act 44 established provisions for the following: accident and illness prevention services and programs; requirements for accident and illness prevention services providers; and the formation and certification of workplace safety committees. These amendments are designed to reduce the number and severity of accidents and illnesses within the workplace.
Since the passage of Act 44, extensive outreach and communication efforts have been undertaken to gain input from the various affected parties, including insurers, self-insured employers, group self-insurance funds, providers of accident and illness prevention services and members of the public. Summaries of these activities follow.
On July 31, 1993, the Department published a notice at 23 Pa.B. 3626 inviting interested parties to a public meeting on August 10, 1993, to discuss a number of Act 44 issues, including those relating to health and safety. At this meeting, Department representatives encouraged those wishing to do so to submit written comments to the Bureau.
On August 28, 1993, the Department published a notice concerning implementation of Act 44 at 23 Pa.B. 4185 (August 28, 1993). This notice was intended to provide timely guidance to all affected parties regarding the implementation of the health and safety provisions of Act 44. Interested parties were advised to write to the Bureau with information requests and comments.
The Department published a statement of policy at 25 Pa.B. 3943 (September 16, 1995). This statement of policy provided guidance to workers' compensation insurance carriers, self-insured employers, group self-insurance funds and employers regarding the Department's interpretation of sections 1001 and 1002 of the act, pending promulgation of final-form regulations. The statement of policy also served to inform other interested members of the public of the Department's interpretation of these provisions.
These amendments further clarify and expand upon the implementation of Act 44 health and safety provisions. A number of changes have been made to the statement of policy guidelines in response to comments received from affected parties.
Act 57 modified section 1002 of the act (77 P. S. § 1038.2) by extending the one-time, 5% workers' compensation premium discount for being granted workplace safety committee certification to a total of 5 years. After initial committee certification, an employer may be entitled to four additional premium discounts by providing annual verification by affidavit that the committee continues to be operative and continues to meet certification requirements.
Since the passage of Act 44 and Act 57 and the publication of the notice and statement of policy, the Bureau has received written comments, telephone inquiries and has continually solicited participation from affected parties. Meetings with affected parties were also held to provide guidance and explanation of Act 44 implementation efforts. The Bureau also employed a Nationally recognized consultant in the field of health and safety to assist in the development of the administrative requirements and processes, requirements for accident and illness prevention services providers, reporting requirements relating to accident and illness prevention services and programs imposed upon insurers, self-insured employers and group self-insurance funds.
Department efforts to provide assistance and to inform affected parties regarding health and safety provisions have included the activities listed as follows.
On April 19, 1994, the Department held a Statewide teleconference to provide information to a variety of affected parties relating to the certification of workplace safety committees. Participating in this conference were members, not only of the Department, but also representatives of the National Safety Council, recognized consultants in the field of occupational safety and health.
From March through August 1994, the Department convened an ad hoc committee to obtain input regarding requirements for accident and illness prevention services providers. The committee included representatives from the academic, insurer, self-insured employer, healthcare provider and other communities. Recommendations included in the final committee report were utilized in compiling the list of credentials and requirements included in the September 1995 statement of policy. Additional comments received from members of the regulated community and the findings of subsequent research are reflected in these amendments.
In September 1995, the Department called a series of three meetings with representatives of insurers, self-insured employers and group self-insurance funds respectively. Draft annual reports required under the health and safety provisions of Act 44 were reviewed at these sessions by the represented affected parties. Comments and suggestions were included in later report versions, draft copies of which were released to all affected parties in April 1996. Recipients were asked to voluntarily complete and return these reports as part of a voluntary report field test. Final report drafts were mailed to members of the regulated community requesting completion and official filing with the Department as required by Act 44. Reports were sent to insurers on February 28, 1997, requesting return within 60 days. Favorable comments and responses to report format and content have been volunteered by affected parties.
In August 1996, in response to the passage of Act 57, the Department implemented procedures to renew the initial certification of employers. These amendments extended the one-time, 5% discount offered under Act 44 to a total of 5 years if, by affidavit, an employer attests to the continued operation of its certified committee according to Department criteria. Completed certification renewal affidavits were produced and mailed to employers commencing with August 23, 1996, due dates. To expedite renewal, affidavits are produced with all needed information completed, necessitating that employers only update data as required, and include a notarized signature before return for processing.
From April through June of 1997, the Department conducted official tests of the complete reporting and onsite auditing process with the assistance of three volunteer members from each of the three affected groups: licensed insurers; individual self-insured employers; and group self-insurance funds. Input from affected participants resulted in modification and revisions to several areas of the process and information requirements.
Since the passage of Act 44 and Act 57, members of the Bureau have continued to participate in meetings with numerous professional organizations, safety and labor conferences and various seminars. At those meetings, the Bureau members described the Department's interpretation of the health and safety provisions and processes that have been implemented to effect them. This participation has also provided an important vehicle for affected parties to comment and input.
At 29 Pa.B. 3161 (June 19, 1999), the Department published the notice of proposed rulemaking, again inviting all interested parties to provide written comments to the Department regarding the Department's interpretation of Acts 44 and 57. As a result, the Department received comments from the following groups and individuals: Dr. Jasen M. Walker, CEC Associates, Inc.; John P. Halvorsen, Insurance Services Office, Inc.; George Ellis, Pennsylvania Coal Association; Peter N. Calcara, Professional Insurance Agents Association of Pennsylvania, Maryland, and Delaware; J. A. Hold and P. W. Nicholson, Consol, Inc.; John H. Cheffer, Travelers Property and Casualty; Daniel R. Tunnell, Pennsylvania Gas Association; Steven A. Bennett, American Insurance Association; and Samuel R. Marshall, The Insurance Federation of Pennsylvania. The Department also received written comments from the Independent Regulatory Review Commission (IRRC), by means of a letter dated August 19, 1999.
This notice of final-form rulemaking supplants and further clarifies and expands upon the previous interpretation of Act 44 and Act 57 health and safety provisions provided in the notice of proposed rulemaking. In response to comments received, some changes have been made to the previously published interpretation.
Purpose
The purpose of these amendments is to effectuate the provisions of Act 44 and Act 57 pertaining to workplace accident and illness prevention. The amendments to sections 1001 and 1002 of the act (77 P. S. §§ 1038.1 and 1038.2) in Act 44 were designed to curtail the costs of workers' compensation coverage by reducing or eliminating workplace injuries and illnesses and reducing their severity. The amendments to section 1002(b) of the act in Act 57 were designed to curtail the costs of workers' compensation coverage by providing an immediate discount based upon the continuing operation of workplace safety committees according to specified criteria.
Since the passage of Act 44 and Act 57, interested parties have requested information which provides definitive interpretations, so that all parties will have a clear understanding of their rights and duties under the health and safety provisions of the act. These amendments provide clarification regarding the accident and illness prevention program or services requirements which workers' compensation insurance carriers, self-insured employers and group self-insurance funds shall comply with under Chapter 7E of the act (77 P. S. § 1038.1) and reporting requirements relating to the programs or services. These amendments also describe the acceptable credentials and required experience for accident and illness prevention services providers. Finally, these amendments describe the process by which an employer may apply for certification and certification renewal of its workplace safety committee to be eligible for eligibility for the one-time premium discount established by Act 44 which was extended to a total of 5 years by Act 57.
Affected Persons
Those affected by these health and safety amendments include all private and public sector employers and employees in this Commonwealth, workers' compensation insurance companies, self-insured employers, group self-insurance funds and accident and illness prevention services providers.
Fiscal Impact
The Commonwealth will incur ongoing costs related to the administration of the new statutory health and safety provisions. These costs will be chargeable to the Bureau, and funded by assessments submitted to the Workmen's Compensation Administration Fund by carriers on behalf of insured employers and by self-insured employers.
Generally, the Bureau's new program responsibilities require augmenting existing staff. The staff is needed to review, process and evaluate applications and reports and to conduct onsite audits of accident and illness prevention programs. These administrative costs, however, are a result of the statute and not these amendments.
The only costs imposed on local governments are those same costs imposed upon all other employers. The Commonwealth, likewise, may have costs related to its role as a self-insured employer.
There are some potential costs to insurers and self-insured employers that may result from changes to data capture and tracking procedures necessary to produce the required information for reporting purposes. These costs are difficult to calculate, however, as changes may or may not be required. Savings will, however, be immediate to employers who apply and are granted safety committee certification or certification renewal in the form of a 5% workers' compensation premium discount. Further savings should be realized through the monitoring of the quality and availability of accident and illness prevention programs and services which are aimed toward reducing workplace injuries and illnesses and therefore improving the overall level of health and safety.
Responses to Comments
The following addresses the common areas of concerns found in the comments received from the public and IRRC.
One commentator, CEC Associates Incorporated, objected to the proposed rulemaking's deleting § 123.202(4)(vi). Nonetheless, the Department believes that it is still necessary to delete § 123.202(4)(vi) because ''vocational testing and assessment,'' as that term is used in the industry, requires formal education and training, a qualification that is inconsistent with the regulations' defining a limited ''grandfathered'' class of vocational evaluators. Therefore, the clause remains deleted in the final-form regulations.
Section 129.2 (relating to definitions) of the proposed rulemaking contains the definitions for various terms and phrases which are incorporated throughout these regulations. At the request of IRRC and various commentators, the following definitions have been either amended, added or deleted to increase clarity. The rating determination of ''adequate'' has been defined relative to the requirements that shall be met to achieve this evaluation. The definition of ''audit'' has been modified to allow for the submission of documentation required by other governmental agencies to evidence compliance. The phrase ''effectiveness measures'' has been amended to include specific formulas which may be used to monitor programs and services. The definition of ''need'' has been deleted. The definitions of ''workplace,'' ''recommendations'' and ''training program'' have been amended for clarity. Definitions of the terms ''credential,'' ''suggestions'' and ''worksite'' have been added to increase clarity. The definition of ''program evaluation methods'' has been modified for clarity and renamed as ''evaluation methods.'' The terms ''program coordinator'' and ''emergency action plans'' have been included for additional clarity.
Section 129.102(1) of the proposed rulemaking describes policyholder notification requirements for insurers. Several commentators have suggested that because insurer contact personnel frequently change, the insurer's department should also be listed as a point of contact on the notice. The Department agrees, and has amended the subsection to require the name of a contact person or department.
Section 129.102(2) of the proposed rulemaking states that an insurer must have the capacity to maintain or provide adequate services as required by the nature of the carrier's business or policyholders' operations. Several commentators have advised the Department that the substitution and definition of the term ''capacity'' would more accurately interpret the obligation of the insurer and that such capacity should only apply to policyholders who request services. Although the Department is in general agreement with this interpretation and has made appropriate wording changes, the obligation to maintain or provide accident and illness prevention services is interpreted by the Department as requiring proactive action by insurers in providing notification of the availability of accident and illness prevention services and in the notice, review, analysis and proposal of preventive corrective actions under a policyholder's request under § 129.103.
Section 129.102(3)(ii)(A) of the proposed rulemaking describes required insurer actions when imminent danger situations or significant program deficiencies are identified. A number of commentators and IRRC have stated that the phrase ''appropriate follow-up'' is ambiguous as used in this subsection. The Department has amended the subsection to read that the carrier shall ''propose further corrective actions if necessary.''
Section 129.102(3)(ii)(D) and (E) of the proposed rulemaking describes required industrial health and hygiene services. Several commentators have stated that this section should be deleted as it might be interpreted to require that insurers maintain specialized staff to directly provide all the services to policyholders. Since both of these services are specifically mentioned in the Article X provisions of the act, the language cannot be deleted. The Department's intent, however, is to permit insurers to identify policyholder needs for these services and to either directly provide or recommend them given their specialized nature. Language has been modified accordingly.
Sections 129.102 (3)(ii)(D) and (E), 129.402(a)(6) and (7) and 129.457(3) and (4) of the proposed rulemaking were drafted to describe the required industrial hygiene or health services to be provided by an insurer, self-insured employer or group self-insurance fund. Several commentators and IRRC have suggested that the words ''appropriate'' and ''needs'' are ambiguous. The Department agrees and has modified wording to reflect that policyholder needs are to be determined by the insurer.
Section 129.102(3)(ii)(H) of the proposed rulemaking allows for review and recommendation of planned or newly introduced industrial materials processes, equipment, layouts and techniques. Several commentators have expressed concern that because of the potential variety of new processes and equipment, insurers would face unnecessary and burdensome expenses to employ adequate staff to effectively conduct assessments of all specific hazards. In keeping with the Department's original intent, language has been modified to describe the requirement as providing consultations to policyholders concerning hazard abatement programs and techniques associated with those introductions.
Sections 129.104(b), 129.403(b) and 129.453(b) (relating to insurer's accident and illness prevention services providers requirements; individual self-insured employer's accident and illness prevention services providers requirements; and group self-insurance fund accident and illness prevention services providers requirements) of the proposed rulemaking state that insurers, individual self-insured employers and group self-insurance funds have proof that the qualifications for accident and illness prevention providers have been met. The American Insurance Association has expressed concern that this language, as drafted, directed carriers to provide proof annually in conjunction with required yearly reports. The subsection has been rewritten to specify that proof of qualification shall be provided only upon an onsite inspection and maintained for specified record retention periods.
Section 129.106 (relating to reporting requirements licensed insurers) of the proposed rulemaking set forth the due date for submission of the annual report by each carrier. Several commentators have requested that the March 1 date be changed to June 1 to allow additional time for the compilation of report data. The Department feels that this is a reasonable request and has modified language accordingly. Additionally, commentators have voiced that the report information should be limited to information concerning services ''requested'' by policyholders. However, it is the Department's interpretation that the determination of the ''adequacy'' of the accident and illness prevention services and programs also requires an examination of not only policyholder requests, but proactive insurer actions to address client exposures and to recommend or implement corrective actions. Therefore, the Department believes a revision to the language is not warranted.
Sections 129.106, 129.404 and 129.455 of the proposed rulemaking stated that the insurer, self-insurer and group self-insurance fund shall provide the Bureau with documentation concerning accident and illness prevention services on forms supplied by the Bureau. Several commentators and IRRC inquired into the ability of the insurer to use other similar types of governmental regulatory documentation in lieu of the Bureaus forms. As a result, the Department has changed the regulatory language to include this type of documentation as acceptable to meet the requirements of Article X of the act (77 P. S. § 1038.1).
Sections 129.106, 129.404, 129.455, 129.108, 129.406 and 129.458 of the proposed rulemaking listed reporting and recordkeeping requirements. IRRC commented that the current language is inconsistent with the requirements enumerated in section 1001(e)(1), (2) and (5) of the act. The Department has reconciled the language and requirements of these sections.
Sections 129.109, 129.407 and 129.459 (relating to periodic audits of insurer's accident and illness prevention services) of the proposed rulemaking stated that the Bureau may audit the insurer, self-insured employer or group self-insurance fund's accident and illness prevention programs or services ''at least once every 2 years.'' IRRC has requested clarification as to when an audit would be initiated and that the written notice of the audit include the reasons for the audit. Several commentators have requested that the language ''at least once every 2 years'' be eliminated. The Department has amended the language to better describe when an audit would be triggered and to specify that the written notice of the audit will include the reasons for the audit. The language of the act, however, specifically permits inspections at least once every 2 years, and this language has been retained rather than eliminated as some commentators have suggested.
Sections 129.110, 129.408 and 129.460 (relating to preaudit exchange of information; periodic audits of individual self-insured employer's accident and illness prevention program; and preaudit exchange of information) of the proposed rulemaking provided for the preaudit exchange of information. IRRC has commented on three areas of the sections: first, that the necessity for the submission of 1 to 3 years of Insurer's Annual Report of Accident and Illness Prevention Services (AIPS) or Annual Report of Accident and Illness Prevention Program Status (AIPPS) by Individual Self-Insured Employer reports makes the preaudit exchange of the same material duplicitous; second, the requirement that insurers submit a list of current ''employers/policyholders'' that have certified safety committees is unnecessary and duplicative since the Department already has access to this information; and finally, the phrase ''in a timely manner'' would benefit from clarification. With respect to the initial point, the Department has inserted language explaining that the need for submittal of 3 years of AIPS or AIPPS reports only arises when an audit has been initiated and no annual reports have previously been filed. In addition, the Department has narrowed the requirement that insurers submit the list of current employers/policyholders that have a certified safety committee so that the list will be far less burdensome on the carrier, and only need to include those employers/policyholders that ''have reported to the carrier'' that Department certification has been granted. The Department believes that the party most able to compile this information is the insurer, as policyholders frequently change insurers and the Department does not necessarily receive notification of these changes. The Department does concur with IRRC's assessment that the phrase ''in a timely manner'' is vague, and has deleted this language, and will instead rely on the language defining required filing time periods.
Sections 129.112, 129.410 and 129.462 (relating to written report of audit; site of audit; and written report of audit) of the proposed rulemaking explained the form and notification of a written report of audit. IRRC commented that there was no mention of a time period when the Department would issue its rating determination. The Department believes that since these regulations are not intended to regulate the Department itself, there is no need for a fixed time frame to be included. Further, IRRC noted that the phrase ''satisfactory proof'' is vague. The confusion regarding this language has led the Department to amend the regulation, substituting the phrase ''written documentation'' for ''satisfactory proof.''
Sections 129.112, 129.410, 129.462, 129.113, 129.411 and 129.463 of the proposed rulemaking concerned the assignment of rating determinations based upon the written report of audit and reports of progress on correcting deficiencies. IRRC requested that the regulations be amended to give more precise guidance to insurers as to the criteria, standards or requirements to be used to determine compliance. The Department has amended the regulations to more clearly describe how it will determine and assign adequacy review process.
Section 129.113 (relating to plan of correction/reports of progress on correcting deficiencies) of the proposed rulemaking provided that, within 60 days after the issuance of the audit report, an insurer will either comply with all report recommendations and provide written evidence of compliance or, for deficiencies requiring more than 60 days to correct, shall file a plan of correction acceptable to the Department and subsequently file monthly reports of progress. IRRC has requested that the requirements and sequence of these time periods be clarified. The Department agrees, and therefore has modified language accordingly, further clarifying when final determinations will be assigned during these periods and defining the circumstances which may initiate an audit during the correction period.
Sections 129.114, 129.412 and 129.464 (relating to contesting final determinations; plan of correction/reports of progress on correcting deficiencies; and contesting final determinations), as proposed, detailed the ramifications of an employer's failure to maintain or provide adequate services. Travelers Property Casualty indicated, and the Department concurs, that the reference to the act in these sections are inaccurate and the provisions dealing with penalties are unclear. Accordingly, the Department has incorporated language to correct the references to the Pennsylvania Code and clarified the authority and process for imposition of monetary penalties.
Section 129.702 of the proposed rulemaking used the term ''certification'' to reference qualifications acceptable to the Department for accident and illness prevention services providers. IRRC correctly pointed out that the term certification, as used in Subchapter F (relating to workplace safety committees) in reference to the evaluation of safety committees, is in conflict with its current usage in this subsection. As such, the Department has substituted the term ''credential'' when referencing provider qualifications and uses the term ''certification'' exclusively in reference to safety committees.
Section 129.702 of the proposed rulemaking referenced the credentials for accident and illness services providers established by the Department as required by section 1001(a) and (b) of the act. Several commentators remarked that the qualification standards as proposed should be deleted. The Department disagrees with this position since the act requires the Department to specify levels of qualification.
IRRC also questioned whether the ''in service'' designation, as described in § 129.702, equated to the apprenticeship program described in the previously published statement of policy. At IRRC's suggestion, the language concerning in-service status has been clarified to indicate that a provider who does not possess recognized Department qualification has 5 years to meet the necessary qualification criteria.
Further, IRRC questioned why subsection (e) of § 129.702 of the proposed rulemaking required that at least 60% of a service provider's job activities be devoted to accident and illness prevention services to meet the 2-year experience requirement for qualification rather than 50% as stated in the statement of policy. The Department's use of 50% in the statement of policy was in error.
Finally, § 129.702(g) of the proposed rulemaking described the 5-year qualification period for providers designated as ''in-service.'' IRRC questioned whether this provision applied to both existing and newly hired employees. The subsection has been amended to reference any provider whose services were utilized during a given reporting period without regard to employment status.
Section 129.1003 (relating to minimum eligibility requirements) of the proposed rulemaking concerned the minimum eligibility requirements for workplace safety committees. IRRC requested clarification of the phrase ''reasonably represent all.'' The Department has amended the section to state that all primary functions of an employer must be represented by committee membership.
Section 129.1004(d)(2) (relating to committee formation and membership) of the proposed rulemaking provided that ''[m]ember rotation should be structured so that there is always at least a core group of experienced members.'' IRRC recommended that, in the interest of clarity, this section be revised to state that ''workplace safety committees shall establish procedures that retain a core group of experienced members serving on the committee at any given time.'' The Department concurs with this suggestion and adopted this language in the final-form regulations.
IRRC also asked for clarity in the language of the subsection dealing with terms of committee members and associated recordkeeping requirements. In response, the Department has amended this provision to specify that a committee member's term commences upon attending the first committee meeting and that records shall be kept for 5 years.
Section 129.1005 (relating to committee responsibilities) of the proposed rulemaking described the workplace safety committee responsibilities. IRRC commented that the terms ''timely'' as used in subsection (a)(4) relating to the review of incidents and ''reasonable'' as used in reference to time limits for response to safety committee recommendations under subsection (b)(7) were ambiguous. The Department concurs, and has eliminated the terms.
Section 129.1010 (relating to recordkeeping requirements) of the proposed rulemaking required an applicant-employer to keep copies of the ''required documents'' of the workplace safety committee for a minimum of 3 years. IRRC noted the inconsistency with this retention period and the stated retention for other committee records including those for member training. Accordingly, the Department has revised the retention time periods to be consistent at 5 years. At IRRC's suggestion, the Department has also clarified the documentation to be retained which has been limited to information necessary to make determinations of adequacy or inadequacy.
Section 129.1301 (relating to purpose) of the proposed rulemaking provided the subchapter's purpose. At IRRC's suggestion, the Department has revised the section to include more expansive definitions of the types of ''final determinations'' which are subject to appeal.
Section 129.1303 (relating to hearing process) of the proposed rulemaking described the hearing process for situations where a party contests a final determination. IRRC has posited that the section, as written, failed to completely outline the hearing process. In response, the Department has clarified the language as to the process and appointment of a hearing officer by the Director and the resultant notifications. Additionally, a new subsection has been added referencing 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure).
Several commentators questioned the additional recordkeeping and costs associated with the implementation of these regulations. Although it is realized that some additional administration may be required, the Department has sought to minimize this burden to the extent possible. The Department's acceptance of documentation required by other state and Federal agencies as evidence of compliance with these regulations is one example of how the Department has attempted to minimize the burdens placed on affected parties.
Reporting, Recordkeeping and Paperwork Requirements
Some forms have been adopted in accordance with sections 802(b)(13), 1001 and 1002 of the act as amended by Act 44 and Act 57. The information requested on the reports is required for: evaluation as to the adequacy of accident and illness prevention services or program requirements for initial or continued licensure; attestation and verification that accident and illness prevention services providers employed or contracted with insurers and self-insured employers meet requirements established by the Department; determination of eligibility for safety committee certification and certification renewal and resulting 5% premium discounts; and determination as to whether group self-insurance fund status should be granted to an applicant group based upon preparedness to provide adequate accident and illness prevention services.
To comply with section 1001(a) of the act, insurers desiring to write workers' compensation insurance in the Commonwealth are required to file form LIBC-211I, Initial Report of Accident and Illness Prevention Services, when applying for a license with the Insurance Department. This form has been adopted to provide information for the evaluation of the applicant-insurer's capability to provide accident and illness prevention services to prospective policyholders as required by law. Based upon the information provided, the Department will recommend a final adequate or inadequate rating determination to the Commissioner of the Insurance Department who will determine whether to grant a certificate of authority to write workers' compensation insurance to the insurer-applicant.
Section 1001(a) of the act also requires that insurers employ or otherwise make available qualified accident and illness prevention personnel who meet Department requirements. Additionally, section 1001(e) of the act mandates annual reporting by licensed insurers as to the accident and illness prevention services being maintained or provided to policyholders and the number and credentials and experience of individuals used to provide services. Form LIBC-210I, Insurer's Annual Report of Accident and Illness Prevention Services, was adopted to provide information for evaluation as proof of compliance with these requirements.
As with licensed insurers, self-insured employers and group self-insurance funds exempted from privately insuring their workers' compensation liability are required by section 1001(b) of the act to maintain an adequate accident and illness prevention program as a prerequisite for retention of self-insured status. Section 1001(b) of the act also requires that self-insured employers and group self-insurance funds employ or otherwise make available qualified accident and illness prevention personnel who meet Department requirements to provide program services. Form LIBC-220E, Annual Report of Accident and Illness Prevention Program Status by Individual Self-Insured Employers, and Form LIBC-230G, Annual Report of Accident and Illness Prevention Program Status By Group Self-Insurance Funds, have respectively been adopted to provide information for evaluation by the Bureau to determine the adequacy of these programs and service providers according to Department established criteria.
Additionally, a group self-insurance fund is required by § 129.454 (relating to reporting requirements applicants for group self-insurance fund status) to file form LIBC-231G, Initial Report of Accident and Illness Prevention Program, as a prerequisite for being granted group self-insurance fund status. The data requested on this form allows evaluation of planned program implementation for adequacy.
Section 1002 of the act states that employers may apply to the Department for the certification of any established safety committee operating within its workplace. Form LIBC-372, Application for Certification of Workplace Safety Committee, has been adopted for use by employers. Certification criteria requirements are specified on the form.
Section 1002 of the act also provides that employers who continue to operate workplace safety committees according to established criteria are eligible to receive a 5% discount in workers' compensation insurance premiums for a total of 5 years if, after initial certification, the employer provides annual verification of the operation to the Department by affidavit. Form LIBC-372R, Certification Renewal Affidavit of Workplace Safety Committee, has been adopted to allow information for the verification to be provided by the employer. An affidavit is automatically mailed to employers previously granted certification or certification renewal prior to the renewal of their workers' compensation policy. The employer then updates information as needed prior to returning the affidavit for review and processing.
Under Chapter 129, the Department has established amendments pertaining to the health and safety provisions of the workers' compensation law. Record retention periods have been established for the purpose of documenting information provided to the Department and for possible onsite record examination.
Effective Date
These amendments are effective immediately upon publication in the Pennsylvania Bulletin.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on June 4, 1999, the Department submitted a copy of the notice of proposed rulemaking published at 29 Pa.B. 3161 to IRRC and to the Chairpersons of the House Labor Relations Committee and the Senate Committee on Labor and Industry for review and comment. IRRC and the Committees were provided with copies of comments received during the public comment period, as well as other documents when requested.
In preparing these final-form regulations, the Department has considered all comments from IRRC, stakeholders and the public. These final-form regulations were deemed approved by the House and Senate Committees on April 13, 2001. IRRC met on April 19, 2001, and approved the amendments in accordance with section 5.1(e) of the Regulatory Review Act (71 P. S. § 745.5a(e)).
Contact Person
The contact person is Len E. Negley, Chief, Health and Safety Division, Bureau of Workers' Compensation, Department of Labor and Industry, (717) 772-1917, 1171 South Cameron Street, Room 324, Harrisburg, PA 17104-2501.
Findings
The Department finds that:
(1) Public notice of intention to amend the administrative regulations amended by this order has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations thereunder in 1 Pa. Code §§ 7.1 and 7.2.
(2) The amendment of the regulations of the Department in the manner provided in this order is necessary and appropriate for the administration and enforcement of the authorizing statute.
Order
The Department, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 34 Pa. Code, are amended by adding §§ 129.1, 129.2, 129.101--129.114, 129.401--129.413, 129.451--129.464, 129.701--129.705, 129.1001--129.1011, 129.1301--129.1303 and 129.1601, 129.1602; and by amending §§ 123.202, 125.133 and 125.155; and by deleting §§ 143.1, 143.2, 143.101--143.118, 143.401, 143.411--143.414, 143.451--143.458, 143.701--143.703 and 143.1001--143.1009, to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(b) The Secretary of the Department shall submit this order and Annex A to the Office of Attorney General and the Office of General Counsel for approval as to legality and form as required by law.
(c) The Secretary of the Department shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect upon publication in the Pennsylvania Bulletin as final-form rulemaking.
JOHNNY J. BUTLER,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 31 Pa.B. 2444 (May 5, 2001).)
Fiscal Note: Fiscal Note 12-54 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 34. LABOR AND INDUSTRY
PART VIII. BUREAU OF WORKERS' COMPENSATION
CHAPTER 123. GENERAL PROVISIONS--PART II
Subchapter C. QUALIFICATIONS FOR VOCATIONAL EXPERTS APPROVED BY THE DEPARTMENT § 123.202. Qualifications.
To be an expert approved by the Department for the purpose of conducting earning power assessment interviews, the individual shall possess a minimum of one of the following:
* * * * * (4) At least 5 years experience primarily in the workers' compensation field prior to August 23, 1996, as a vocational evaluator, with experience in analyzing labor market information and conditions, industrial and occupational trends, with primary duties providing actual vocational rehabilitation services, which include, but are not limited to, the following:
(i) Job seeking skills.
(ii) Job development.
(iii) Job analysis.
(iv) Career exploration.
(v) Placement of individuals with disabilities.
CHAPTER 125. WORKERS' COMPENSATION SELF-INSURANCE
Subchapter B. GROUP SELF-INSURANCE § 125.133. Application.
* * * * * (c) With the application, the applicant shall include:
* * * * * (4) An explanation of the same classification series, as described under § 125.155(a) (relating to homogeneity), common to all prospective members with the amount of each member's contributions derived from the classification codes within the common series, or an explanation of how the prospective members are engaged in the same or similar types of business, as described under § 125.155(b). The Bureau may request additional information to determine the homogeneity of the applicant.
* * * * * § 125.155. Homogeneity.
(a) The definition of ''homogeneous employer'' under section 801 of the act (77 P. S. § 1036.1) and under § 125.132 (relating to definitions) is deemed satisfied as to employers who have been assigned to the same classification series if the members derive a majority of their contributions from codes within the same classification group listed in a manual of risk classes approved by the Commissioner of the Insurance Department under Article VII of the act (77 P. S. §§ 1035.1--1035.22).
* * * * *
CHAPTER 129. WORKERS' COMPENSATION HEALTH AND SAFETY Subchap.
A. PRELIMINARY PROVISIONS B. INSURER'S ACCIDENT AND ILLNESS PREVENTION SERVICES C. INDIVIDUAL SELF-INSURED EMPLOYER'S ACCIDENT AND ILLNESS PREVENTION PROGRAMS D. GROUP SELF-INSURANCE FUND'S ACCIDENT AND ILLNESS PREVENTION PROGRAMS E. ACCIDENT AND ILLNESS PREVENTION SERVICES PROVIDERS REQUIREMENTS F. WORKPLACE SAFETY COMMITTEES G. HEARINGS H. ORDER TO SHOW CAUSE/PENALTIES
Subchapter A. PRELIMINARY PROVISIONS Sec.
129.1. Purpose. 129.2. Definitions. § 129.1. Purpose.
This subchapter provides definitions of terms used in this chapter to allow for accurate understanding of commonly and frequently used terminology.
[Continued on next Web Page]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
