Legislative and Regulatory Update2017

Donald C. Smith, Esq., DIR Senior Division Counsel

Legal DisclaimerThe views and opinions expressed in the writtenmaterials and in any of the presentations at thisconference are those of the presenter and do notnecessarily reflect the official policy or position of theDepartment of Business and Industry, Division ofIndustrial Relations. The Division does not warrantythe materials’ completeness or accuracy.

2017 Legislative Summary▪ 1,077 Bills Considered (522 Assembly; 555 Senate)

▪ 649 Bills Approved (608 Signed By Governor, 41 Vetoed)

▪ 1 Initiative Petition Considered and Approved (Vetoed by Governor)

▪ 71 Resolutions Introduced (47 Passed or Adopted)

Important Issues Addressed

▪ Fish Pedicures (AB 158)

▪ Plastic Bag Charges ($ 0.10 per bag; AB 344)

▪Recess for Kindergarten through 5th Grade (AB 166)

▪Barring Microchip Implantation in People (SB 109)

▪ Increasing Access to Public Records (SB 170)

More Important Issues▪ High-Speed Rail Link between Las Vegas and Reno

(AB 360)

▪ Minimum Wage (SB 106)

▪ Prevailing Wage (AB 154)

▪ Land Use Planning (AB 277)

▪ Pay Raise for State Employees (AB 517 & SB 368)

And All of these Bills Did Not Pass, Except Two.▪ However, the 2017 Legislative Session Produced

Many Memorable Events.

▪ 2017 Donkeys vs. Elephants Biennial Basketball Game (Donkeys 30, Elephants 24)

▪ 1st Biennial Kickball Game (Legislators, Staff & Lobbyists vs. The World; The World “like 11”, Legislature “like 9”

▪ And finally, the forward thinking of the Nevada Legislature was demonstrated by celebrating “Cuatro De Mayo.”

▪Marijuana

▪Marijuana

▪Marijuana

And the Most Important Issue…

▪ Assembly Bills

▪ 130, 135, 227, 259, 302, 319, 345, 384, 422, 438, 463 and 474

▪ Senate Bills

▪ 101, 210, 228, 229, 236, 277, 290, 298, 302, 329, 341, 344, 351, 358, 374, 375, 378, 379, 396, 416, 487, 507, 508 and 545

Just a sampling of these bills…

Also Addressed Was Workers’ Compensation

▪…Or What the 2017 Legislature

▪ Could Have Done,

▪ Might Have Done, and

▪ Actually Did

THE LEGISLATURE COULD HAVE…▪ AB 13 would have amended the requirements for

claim closure under NRS 616C.235; added a new provision in Chapter 616D re: nurse case managers; and amended 616D.330 to include nurse case manager communications with treating providers. Failed 4/14/17 Deadline.

▪ AB 300 would have doubled the length of vocational rehabilitation programs. Failed 4/14/17 Deadline.

▪ SB 276 would have added a new provision to Chapter 616B authorizing the adjusting of WC claims outside Nevada. Failed 4/14/17 Deadline.

THE LEGISLATURE MIGHT HAVE…

▪ SB 209 would have stricken the “bricks and mortar” requirement for WC claims offices, but Sections 1-5 were deleted by amendment.

▪ SB 227 would have made Advanced Practice Registered Nurses fully comparable to physicians or chiropractors in WC, i.e., APRNs would have been authorized members of the DIR Treating and Rating Panels, could perform IMEs and PPDs, and would have a billing rate comparable to treating physicians or chiropractors. Sections 91-126 were deleted by amendment.

ACTUALLY DID…▪ AB 135, Section 17 amends the reference in NRS 616C.230 to NRS

484C.110, which now requires testing for marijuana by blood only of marijuana (delta 9) at 2 nanograms per milliliter or marijuana metabolite (11 OH) at 5 nanograms per milliliter. Effective July 1, 2017.

▪ AB 458, effective July 1, 2017, adds new provisions:

▪ Section 2 adds a new provision to Chapter 616C making, "Directly connect this injury or occupational disease as job incurred" (Form C-4 language) and "A reasonable medical probability that the condition in question was caused by the industrial injury" (United Expo. Serv. Co. v. SIIS, 109 Nev. 421, 831 P.2d 423 (1993)) equivalent and interchangeable, essentially overturning the Nevada Court of Appeals Decision in Sands v. MGM Resorts Intl., Case No 68926, 2016 Nev. App. Unpub. LEXIS 311 (Sept. 9, 2016).

AB 458 Continued▪ Section 3 adds a new provision to Chapter 616C authorizing an

injured employee to schedule their own IME, once a year, paid for by the insurer, when the claim is open, claim closure is in dispute or a hearing or appeal is pending. A copy of the IME report is to be provided upon request to the insurer.

▪ Section 4 adds a new provision to Chapter 616C requiring the selection of voc rehab counselors by agreement or if no agreement, the insurer providing a list of 3 from which the injured employee makes a selection within 7 days. (Does not address time for insurer to provide list or what happens if IE fails to make a selection.)

AB 458 Continued▪ Section 7.3 amends NRS 616C.235 increasing the amount from $300 to

$800 in medical expenses in the first 12 months for claim closure without reopening.

▪ Section 7.7 amends NRS 616C.390 by adding a new subsection 11 defining "retired", "wages" and "governmental program." "Retired " is used in existing subsection 6 discussing reopening and disqualification from receiving voc rehab or TTD benefits.

▪ Section 8 amends NRS 616C.490 by adding a new subsection 10 which overturns the Supreme Court decision in PACT v. Blake, 127 Nev. 863, 265 P.3d 694 (2011), and authorizes PPD apportionment by simple subtraction of prior awards, rather than recalculating the prior disability under the AMA 5th Ed. of the Guides and then subtracting.

AB 458 Continued

▪ Section 9 amends NRS 616C.495 in two ways:

▪ FIRST, it amends subsection 1(d) by clarifying lump sum PPDs for injuries incurred between 1/1/95 to 1/1/16 a 25% or 30% maximum, at the option to the insurer, and creates a new subsection 1(e) confirming the 1/1/16 to 7/1/17 30% LS PPD maximum; and in new subsection 1(f) for injuries incurred on or after 7/1/17 of 30% LS PPD maximum.

AB 458 Continued▪ Section 9 amends NRS 616C.495 in two ways:

▪ SECOND, it amends subsection 5 to require that the present value table for LS PPDs (set forth in NAC 616C.502) be adjusted on July 1 of each year using: (5)(a) "The most recent unisex 'Static Mortality Tables for Defined Benefit Pension Plans' published by the Internal Revenue System"; and (5)(b) "The average 30-Year Treasury Constant Maturity Rate for March of the current year as reported by the Board of Governors of the Federal Reserve System."

Actually Did Continued▪ AB 267, effective for claims incurred on or after October 1, 2017,

amends provisions in Chapters 616C and 617.

▪ Section 1 amends NRS 616C.400 by adding a new subsection 1(c) excluding NRS 617.453, 617.455 or 617.457 from the 5 days of disability before qualifying for TTD.

▪ Section 2 amends NRS 617.420(2) clarifying that medical benefits must be paid for claims under NRS 617.453, 617.455 or 617.457.

▪ Section 3 amends NRS 617.454 by adding a new subsection 3 limiting the release of an employee's physical examination results.

AB 267 Continued▪ Section 4 amends 617.455 by adding a new subsection 10 requiring

the DIR Administrator to review police officers' and fire fighters' lung claims which have been in the appeals process for longer than 6 months. Adds a new subsection 11 which authorizes the DIR Administrator to award a benefit penalty of up to $200 per day for a denied claim which is ultimately reversed.

▪ Section 5 amends NRS 617.457 by adding a new subsection 15 requiring the DIR Administrator to review police officer's and firefighter's heart claims which have been in the appeals process for longer than 6 months. Adds a new subsection 16 which authorizes the DIR Administrator to award a benefit penalty of up to $200 per day for a denied claim which is ultimately reversed.

Actually Did Continued▪ AB 12 requires TPA employees who adjust WC claims to be licensed

(Sec. 0.5); sets forth requirements for adjusters’ behavior (Sec. 8); creates two (2) new types of adjusters- a "company adjuster" (an employee of an insurer) and a "staff adjuster" (an employee of a TPA) (Sec. 14); and a salaried employee of an insurer is not required to obtain a company license (Sec. 15(4)). Effective July 1, 2018 (Sec. 26).

▪ SB 59 adds a new provision to Chapter 453, NRS, which created a computerized data base by State Board of Pharmacy and Investigation Division of Dept. of Public Safety to track prescriptions of opioids listed in Schedule V dispensed by a pharmacy or a medical practitioner. Effective July 1, 2017.

Actually Did Continued▪ SB 160 amends Chapter 233B, the Nevada Administrative Procedure

Act

▪ Section 1 amends NRS 233B.060(1)(a) to provide that first hearing on regulation be done on 30 days notice and that copy of LCB draft of regulation be posted on its internet website 3 working days before the hearing; and that a second or subsequent hearing may be heard on 3 working days notice.

▪ Section 2 amends NRS 233B.061(2) to make explicit that another workshop is not required before conducting a second or subsequent hearing.

▪ Effective July 1, 2017.

DIR Regulatory Summary▪ Regulations Adopted by DIR and Approved by the Legislative

Commission:

▪ LCB File No. R130-14

▪ LCB File No. R132-14

▪ LCB File No. R136-14

▪ LCB File No. R059-15

▪ Regulations in the Adoption Process

▪ LCB File No. R043-17, amending NAC 616C.502

LCB File No. R130-14 Adopted by DIR on June 24, 2016; Approved by the Legislative Commission on September 9, 2016.

Provides for more seamless procedures when a claim is transferred between third-party administrators to prevent interruptions in benefits payable to the Injured Employee.

▪ Requires more detailed claim acceptance and denial determinations be provided to the Injured Employee including information regarding entitlement to certain benefits.

▪ Makes permanent disability ratings clearer by requiring rating physicians to cite to the relevant AMA Guides ratings tables and enacting a records retention policy for raters.

▪ Permits the DIR to levy administrative fines against vocational rehabilitation counselors who supervise the work of uncertified counselors.

▪ Revises regulations regarding physical examinations for firefighters and police officers.

LCB File Nos. R132-14 and R136-14 Adopted by DIR on March 31, 2016; Approved by the Legislative Commission on June 28, 2016.▪ R132-14 revises the application process for reimbursement for the

subsequent injury account for private employers to clarify the definition of permanent physical impairment and when lump sum payments will be accepted for reimbursement.

▪ R136-14 revises NAC 616C.490 to comply with the Nevada Supreme Court holding in PACT v. Blake, 127 Nev. 863, 265 P.3d 694 (2011), and repeals NAC 616A.500 and 616A.510, which are no longer necessary.

LCB File No. R059-15 Adopted by DIR on December 7, 2016; Approved by the Legislative Commission on December 21, 2016

▪ Amends NAC 616C.498, to comply with NRS 616C.495, as amended by Section 3 of Senate Bill 232, Chapter 240, Statutes of Nevada 2015, at page 1141, increasing the maximum lump sum permanent partial disability payment from 25% to 30% for claims incurred before July 1, 1995 and before January 1, 2016, if the insurer chooses.

Pending or To Be Addressed Regulations▪ LCB File No. R043-17. DIR has drafted and forwarded to the

Legislative Counsel Bureau for review and drafting a proposed regulation amending NAC 616C.502, the lump-sum PPD factor table based on the language recently enacted in AB 458, Section 9. This regulation as proposed uses, "The most recent unisex 'Static Mortality Tables for Defined Benefit Pension Plans' published by the Internal Revenue System" and "The average 30-Year Treasury Constant Maturity Rate for March of the current year as reported by the Board of Governors of the Federal Reserve System.“

▪ DIR may be drafting regulations required by AB 267, Sections 4 and 5 to implement the benefit penalty assessment and calculation

Helpful HintsFull copies of any legislative bill and its history can be obtained on-line at the Nevada Legislature website, under Session Info, 79th (2017) Session.

DIR has posted an unofficial compiled version of the NAC covering Chapters 616A through 617, inclusive, at dir.nv.gov/WCS/Nevada_Law.

Copies of DIR regulations can be viewed at Nevada Legislature’s Nevada Law Library under the Nevada Register athttps://www.leg.state.nv.us/Register/

QUESTIONS?