The proposed rule amendments will address training, education, and reemployment benefits provided to injured workers.

 

DEPARTMENT OF FINANCIAL SERVICES

Division of Workers' Compensation

RULE NOS.:RULE TITLES:

69L-22.006Screening Process

69L-22.007Vocational Evaluations

69L-22.008Reemployment Services and Programs

69L-22.011List of Forms

69L-22.012Expenditures from the Workers' Compensation Administration Trust Fund

69L-22.013Trial Period of Reemployment

PURPOSE AND EFFECT: The proposed rule amendments will address training, education, and reemployment benefits provided to injured workers.

SUMMARY: The proposed amendments will update language to streamline rule text, clarify time frames and document requirements for worker’s compensation screenings and evaluations. The proposed edits will also provide guidelines for payments, to obtain a general education diploma, and for other training and educational certificates. This rulemaking will also provide parameters for a trial period of reemployment to help the injured individual reenter the work force and make other necessary changes.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The Department’s economic analysis of the potential impact of the proposed rule amendments determined that there will be no adverse economic impact or increased regulatory costs that would require legislative ratification.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 440.15, 440.491, 440.591 FS.

LAW IMPLEMENTED: 440.15, 440.491 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Lisel Laslie, Chief, Bureau of Employee Assistance, 200 E. Gaines Street, Tallahassee, FL 32399-4229, [e-mail], [phone].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

69L-22.006 Screening Process.

(1) A request for screening must be made using Form DFS-F3-DWC-23, Request for Screening, as incorporated by reference in rule 69L-22.011, F.A.C. Before the Department will consider a request complete and initiate a screening, the injured employee must:

(a) through (b) No change.

(c) Provide documentation to establish identity and employment eligibility. Such documentation shall be consistent with the acceptable documents for verifying identity and employment eligibility as required by the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services’ Form I-9, Employment Eligibility Verification (Effective 10/21/19 Rev. 03/08/13 N), which is incorporated by reference herein and available at: http://www.myfloridacfo.com/Division/wc/ or http://www.flrules.org/Gateway/reference.asp?No=Ref-___ http://www.uscis.gov/files/form/i-9.pdf.

(d) No change.

(2) No change.

(3) The screening process shall consist of:

(a) No change.

(b) A review of the documentation which supports the payment of temporary partial disability and wage loss benefits to determine the injured employee’s inability to obtain suitable gainful employment because of his or her injury;

(c) No change.

(d) A vocational assessment. The vocational assessment shall determine the relevance and weight of the following factors in the case: the permanent physical restrictions, if any, present in the case; the availability of employment with the employer at the time of the injury; the injured employee’s transferable skills and the labor market; whether the injured employee conducted an unsuccessful job search, and the reasons the job search was unsuccessful; the injured employee’s education and academic skills and vocational education; the injured employee’s motivation; the injured employee’s financial ability to complete a training and education program; and the availability of transportation to allow the injured employee to complete a training and education program. The vocational assessment shall determine whether the injured employee is eligible or ineligible to receive reemployment services, or is eligible to receive reemployment services. If the injured employee is eligible to receive reemployment services, the vocational assessment shall determine which of the following shall be offered to the injured employee: job placement assistance, and/or on-the-job training, and/or a vocational evaluation, and/or a training and education program costing less than $2,500 and lasting twelve (12) months or less.

(4) A rehabilitation provider performing vocational assessments shall:

(a) Conduct an initial interview with the injured employee within seven (7) days of accepting the referral;

(b) Submit to the Department, within thirty (30) calendar days of the initial interview, a written report which shall address each of the vocational assessment factors enumerated above and discuss how the provision of the recommended service(s) will facilitate reemployment;

(c) No change.

(d) Submit to the Department, within ten (10) days of submission of the written report, a signed statement affirming of acknowledgement of the vocational assessment signed by the injured employee and the rehabilitation provider has discussed the results of the vocational assessment with the injured employee.

(5) The carrier shall provide, within 10 business days of receipt of a request from the Department, any medical, vocational, and other requested documents or reports related to the injured employee’s workers’ compensation claim case.

(6) through (7) No change.

(8) The Department shall not provide any reemployment services, including a vocational evaluation unless the injured employee provides documentation to establish identity and employment eligibility. Such documentation shall be consistent with the acceptable documents for verifying identity and employment eligibility as required by the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services’ Form I-9, Employment Eligibility Verification, which is incorporated by reference in this Rule (Rev. 03/08/13 N) which is incorporated by reference herein and available at http://www.uscis.gov/files/form/i-9.pdf.

(9) through (10) No Change.

(11) The Department shall not refer the injured employee for a vocational evaluation if the injured employee:

(a) through (b) No change.

(c) Has transferable skills which would allow the injured employee to return to work in suitable gainful employment;

(d) Was terminated by the employer for good cause unrelated to the injury or any restrictions or limitations resulting therefrom; or

(e) Terminated suitable gainful employment for reasons unrelated to the injury; or .

(f) Refused an offer of employment within the injured employee’s functional limitations and restrictions, and such employment would pay at least eighty percent (80%) of the compensation rate.

Rulemaking Authority 440.491(6), 440.591 FS. Law Implemented 440.491 FS. History–New 7-1-96, Amended 6-26-01, Formerly 38F-55.009, Amended 5-5-04, 5-7-09, Formerly 6A-22.006, Amended 3-31-14, 5-9-16, ______.

69L-22.007 Vocational Evaluations.

(1) The provision of Department sponsored vocational evaluations shall be limited to one (1) per injured employee, per date of accident. Vocational evaluations shall be adapted to the specific needs of the an injured employee to insure validity.

(2) through (3) No changes.

(4) Testing instruments, including work samples, used in vocational evaluations, reemployment assessments, vocational assessments, or other reemployment service activities may be administered and scored under the supervision of a rehabilitation provider. Testing instruments shall be interpreted by the rehabilitation provider with whom the contract for services is authorized.

Rulemaking Authority 440.491(6), 440.591 FS. Law Implemented 440.491 FS. History–New 7-1-96, Formerly 38F-55.010, Formerly 6A-22.007, Amended 3-31-14, ______.

69L-22.008 Reemployment Services and Programs.

(1)    through (6) No Change.

(7) The Department will not approve training for a General Education Diploma (GED) longer than two (2) semesters unless the Department has authorized enrollment in a training and education program that runs concurrent with the GED training.

(8)(7) The Department will approve an individual course or multiple courses when it is demonstrated that the skills to be gained are necessary for the injured employee to secure suitable gainful employment.

(9)(8) The Department will approve training and education programs which exceed fifty-two (52) weeks only when there is no program shorter than fifty-two (52) weeks which would enable the injured employee to return to suitable gainful employment, the injured employee provides a plan for living expenses during the period in excess of fifty-two (52)  weeks, and the injured employee has no formal marketable vocational training and education.

(10)(9) If the Department determines a training and education program is necessary to return the an injured employee to suitable gainful employment, the Department shall have the exclusive right to approve training and education programs and facilities at which to sponsor the injured employee.

(a) No change.

(b) For dates of accident October 1, 1989 through and including September 30, 2003, training and education programs at private training and education facilities shall not be approved unless such recommended training and education is not offered at a public training and education facility or provides an overall cost or time cost/time savings.

1. through 2. No change.

3. The injured employee presents evidence of acceptance into a degree program prior to the Department’s Disposition letter of approval; and,

4. No change.

(c) No change.

(d) For dates of accident on or after July 1, 2010, only training and education programs which are consistent with the requirements found in section 440.491(6)(a), F.S., as effective on July 1, 2010, shall be approved. Training and education services secured from additional providers must demonstrate an overall cost or time cost/time savings.

(10) through (11) renumbered as (11) through (12) No change.

Rulemaking Authority 440.491(6), 440.591 FS. Law Implemented 440.491 FS. History–New 7-1-96, Amended 2-9-00, 6-26-01, Formerly 38F-55.011, Amended 3-1-05, 5-7-09, Formerly 6A-22.008, Amended 3-31-14, 5-9-16, __________.

69L-22.011 List of Forms.

(1) No change.

(2) Copies of the above The Department will not supply the forms promulgated under this chapter, but will make sample forms are available on the Department’s web site at: http://www.myfloridacfo.com/Division/wc/.

Rulemaking Authority 440.491(6), 440.591 FS. Law Implemented 440.491 FS. History–New 7-1-96, Amended 6-26-01, Formerly 38F-55.014, Amended 5-5-04, 5-7-09, Formerly 6A-22.011, Amended 3-31-14, 5-9-16, ____.

69L-22.012 Expenditures from the Workers’ Compensation Administration Trust Fund.

(1) through (2) No change.

(3) The maximum cost the Department shall expend for an approved training and education plan shall not exceed 85% of the injured employee’s pre-injury average weekly wages as calculated on an annual basis, which amount shall include:

(a) Pre-approved costs for fees, tuition, books and special supplies required by the approved training and education program curriculum.; The Department will not pay for more than seventy-three (73) credit hours, which shall include any required remedial course work;

(b) Pre-approved costs for board, lodging, and travel at the rate currently allowed for state employees when an approved training and education program requires temporary relocation for participation; or pre-approved mileage reimbursement at the rate currently allowed for state employees for mileage to the training and education facility in excess of 50 miles, one-way, using the most direct route from the injured employee’s customary residence. Mileage expense will not be reimbursed or paid by the Department when the training and education facility is less than 50 miles from the injured employee’s customary residence at the time of approval for training and education;.

(c) One-time, pre-approved costs for certification examinations as recommended in a vocational evaluation or vocational assessment; and

(d) Pre-approved costs for the General Education Diploma (GED) one (1) time per date of accident.  Costs shall be limited to:

1. One pre-GED test which shall include all GED subject areas;

2. Not more than two (2) semesters of GED preparation or remediation;

3. One GED test; and,

4. If the injured employee does not pass all GED subtests, up to two (2) re-tests per subject area.

(4) through (8) No change.

Rulemaking Authority 440.491(6), 440.591 FS. Law Implemented 440.491 FS. History–New 7-1-96, Amended 12-2-98, 6-26-01, Formerly 38F-55.015, Amended 5-7-09, Formerly 6A-22.012, Amended 3-31-14, ______.

69L-22.013              Trial Period of Reemployment.

(1) The initiation or termination of a trial period of reemployment constitutes an action or change in employment status for purposes of rule 69L-56.404, F.A.C.

(2) The trial period of reemployment shall:

(a) through (c) No change.

(d) Automatically terminate:

1. When the injured employee is unable to perform the duties as a result of the permanently disabling condition, or

2. One year from the date of initiation of the trial period of reemployment hire if the injured employee is able to work 50 percent (50%) of his or her normal pre-injury working hours with an earning capacity of at least 80% of his or her previous average weekly wage.

(2) Following termination of the trial period of reemployment the carrier shall file a notice of action/change form DWC-4 with the Division to report whether the return to work was successful. Form DWC-4 is incorporated by reference in Rule 69L-3.025, F.A.C.

Rulemaking Authority 440.15(1), (3), 440.491(5), (6), (8), 440.591 FS. Law Implemented 440.15, 440.491 FS. History–New 7-1-96, Amended 6-26-01, Formerly 38F-55.004, Amended _________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Lisel Laslie, Chief, Bureau of Employee Assistance

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Jimmy Patronis, Chief Financial Officer

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: May 23, 2023

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: August 3, 2022