Subchapter II. Payments for Injuries or Death and Incidental Benefits
§ 2321. Minimum duration of incapacity.
Permanent injury relating to hearing or vision loss, surgical, medical and hospital services, medicines and supplies, and
funeral benefits shall be paid from the 1st day of injury. Beginning with the 4th day of incapacity, all compensation otherwise
provided by law shall be paid. If the incapacity extends to 7 days or more, including the day of injury, the employee shall
receive all compensation otherwise provided by law from the 1st day of injury.
Code 1915, § 3193h; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 2; 32 Del. Laws, c. 186, § 1; 37 Del. Laws, c. 239, § 1; Code 1935, § 6078; 43 Del. Laws, c. 269, § 6; 19 Del. C. 1953, § 2321; 49 Del. Laws, c. 429, § 1; 70 Del. Laws, c. 205, § 1; 70 Del. Laws, c. 532, § 1.;
§ 2322. Medical and other services, and supplies as furnished by employer.
(a) During the period of disability the employer shall furnish reasonable surgical, medical, dental, optometric, chiropractic
and hospital services, medicine and supplies, including repairing damage to or replacing false dentures, false eyes or eye
glasses and providing hearing aids, as and when needed, unless the employee refuses to allow them to be furnished by the employer.
(b) If the employer, upon application made to the employer, refuses to furnish the services, medicines and supplies mentioned
in subsection (a) of this section, the employee may procure the same and shall receive from the employer the reasonable cost
thereof within the above limitations.
(c) Upon application made to the Board by the injured employee or someone in the injured employee's behalf, the Board may,
at its discretion, require the employer to furnish additional services, medicines and supplies of the kind mentioned in subsection
(a) of this subsection, as and when needed, for such further period as it shall deem right and proper. The charges for such
additional services, medicines and supplies shall not exceed the rates regularly charged to other individuals for like services
and supplies, provided, however, that the Board shall at all times have jurisdiction to determine and shall determine the
character of services and supplies to be furnished.
(d) An employee, at any time after a claim for compensation is made, shall have the right, upon application to the employee's
employer, to inspect, copy and reproduce any medical records pertaining to said employee in the possession of the employee's
employer or the employee's insurance carrier. Medical records, as used in this subsection, shall include physician's reports,
hospital reports, diagnostic reports, treatment reports, X-rays and X-ray reports.
(e) The fees of medical witnesses testifying at hearings before the Industrial Accident Board in behalf of an injured employee
shall be taxed as a cost to the employer or the employer's insurance carrier in the event the injured employee receives an
award.
(f) Every insurance carrier or self-insurer shall be required to replace or renew a defective or worn out prosthesis for the
life of the injured person without such replacement or renewal constituting a new claim period.
(g) An employee shall be entitled to mileage reimbursement in an amount equal to the State specified mileage allowance rate
in effect at the time of travel, for travel to obtain:
(1) Reasonable surgical, medical, dental, optometric, chiropractic and hospital services; and
(2) Medicine and supplies, including repairing and replacing damaged dentures, false eyes or eyeglasses, and providing hearing
aids and prosthetic devices.
(h) An employer or insurance carrier may pay any health care invoice or indemnity benefit without prejudice to the employer's
or insurance carrier's right to contest the compensability of the underlying claim or the appropriateness of future payments
of health care or indemnity benefits. In order for any provision or payment of health care services to constitute a payment
without prejudice, the employer or insurance carrier shall provide to the health care provider and the employee a clear and
concise explanation of the payment, including the specific expenses that are being paid, the date on which such charges are
paid, and the following statement, which shall be conspicuously displayed on the explanation in at least 14 point type:
This claim is IN DISPUTE and payment is being made without prejudice to the Employer's right to dispute the compensability
of the workers' compensation claim generally or the Employer's obligation to pay this bill in particular.
(1) Partial payment of the uncontested portion of a partially contested health care invoice shall be considered a payment
without prejudice to the right to contest the unpaid portion of a health care invoice, provided the above notice requirements
are met.
(2) No payment without prejudice made under a reservation of rights pursuant to this subsection shall be subject to return,
recapture or offset, absent a showing that the claim for payment was fraudulent.
(3) No payment without prejudice that complies with the above is admissible as evidence to establish that the claim is compensable.
(4) No payment without prejudice that complies with the above shall extend the statute of limitations unless the claim is
otherwise determined by agreement or the Board to be compensable.
(i) Availability of vocational rehabilitation services.
(1) Statement of intent. -- The General Assembly realizes that despite the best efforts of all concerned, some injured workers
may not be able to return to their pre-injury employment and may benefit from vocational rehabilitation.
(2) To the extent assistance may be required in this regard, resources are available to employees including, but not limited
to, from the following organizations:
a. Delaware Division of Vocational Rehabilitation;
b. First State Project with Industry; and
c. One Stop Centers.
(3) Nothing in this section is intended to change the existing rights and responsibilities of injured employees or employers
regarding vocational rehabilitation services.
Code 1915, § 3193h; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 2; 32 Del. Laws, c. 186, § 1; 37 Del. Laws, c. 239, § 1; Code 1935, § 6078; 43 Del. Laws, c. 269, § 6; 46 Del. Laws, c. 27; 48 Del. Laws, c. 229; 19 Del. C. 1953, § 2322; 50 Del. Laws, c. 267, § 1; 50 Del. Laws, c. 339, § 5; 53 Del. Laws, c. 126; 61 Del. Laws, c. 505, § 1; 65 Del. Laws, c. 469, § 1; 70 Del. Laws, c. 172, § 4; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 85, § 1; 76 Del. Laws, c. 1, § 9.;
§ 2322A. Health Care Advisory Panel.
(a) The General Assembly recognizes that issues related to health care in workers' compensation require the expertise of the
medical community and other health care professionals for resolution. A Health Care Advisory Panel is hereby established.
The purpose of the Health Care Advisory Panel shall be to carry out the provisions of this chapter, with a diversity of perspectives,
on matters relating to the provision of health care to employees pursuant to this chapter.
(b) Membership; terms. -- The Health Care Advisory Panel shall consist of 17 members. All members shall be appointed by the
Governor by and with the consent of the Senate. As provided below, a majority of members shall be health care providers or
representatives of providers. Members shall be appointed for a term of up to 3 years and may be re-appointed. Terms of members
shall be staggered so that less than half of the members' terms expire in any 1 year. Members shall receive no compensation.
(c) Representation. -- The Health Care Advisory Panel shall include: 1 representative of insurance carriers providing coverage
pursuant to this chapter; 1 representative of employers; 1 representative of employees; 2 attorneys licensed to practice law,
1 who regularly represents employees and 1 who regularly represents employers in matters arising under this chapter; 3 public
members; and 9 provider members. A public member: may not be nor may ever have been certified, licensed, or registered in
any health-related field; may not be the spouse of someone certified, licensed, or registered in any health-related field;
at the time of appointment may not be a member of the immediate family of someone certified, licensed, or registered in any
health-related field; may not be employed by a company engaged in a directly health-related business; and may not have a material
financial interest in providing goods or services to persons engaged in the practice of medicine. The 9 provider members appointed
to the Health Care Advisory Panel shall include a diverse group of health care providers (or provider representatives) who
are most representative of those providing medical care to employees pursuant to this chapter. The provider members shall
include representatives nominated by the following professional societies or associations:
(1) Four representatives of the Medical Society of Delaware (including 1 in the field of primary care, 1 in the field of neurosurgery,
1 in the field of occupational medicine and 1 at large representative);
(2) One representative of the Delaware Society of Orthopaedic Surgeons;
(3) One representative of the Delaware Academy of Physical Medicine and Rehabilitation;
(4) One representative of the Delaware Healthcare Association;
(5) One representative of the Delaware Chiropractic Association; and
(6) One representative of the Delaware Physical Therapy Association.
One member may represent more than 1 category. In addition to their ability to represent the perspective of their profession,
provider members shall be selected for their ability to represent the interests of the community at large. The Department
of Labor, Office of Workers' Compensation shall provide at least 1 nonvoting staff to assist the Panel in its work.
(d) Any person appointed to fill a vacancy on the Health Care Advisory Panel shall serve for the remainder of the unexpired
term of the former member and shall be eligible for reappointment.
(e) Regular attendance is vital to the purposes of the Health Care Advisory Panel. Members shall accept the duty and obligation
to attend meetings. Repeated absences shall be grounds for removal from the Panel at the discretion of the Governor.
(f) A Chair and Vice Chair shall be elected by a majority of members of the Health Care Advisory Panel for terms of 1 year.
The Chair and/or Vice Chair may be replaced at any time by a majority vote of members of the Health Care Advisory Panel. The
Chair and Vice Chair of the Health Care Advisory Panel shall set an agenda for each meeting, shall preside at meetings, and
shall forward recommendations, opinions and other communications of the Health Care Advisory Panel to the Governor and General
Assembly.
(g) The Health Care Advisory Panel is authorized to appoint by majority vote such committees as it may deem appropriate and
to define the powers duties and responsibilities of such committees. Such committees may include persons who are not regular
members of the Health Care Advisory Panel.
(h) Order of business and schedule of meetings. -- Meetings of the Health Care Advisory Panel shall be held at least 4 times
annually and shall be scheduled by the Chair. Agendas for meetings shall be developed by the Chair and/or Vice-Chair of the
Panel. Any member wishing to include an item on the agenda has the responsibility to draft and present the agenda item to
the Chair for approval and inclusion. An agenda shall be distributed by the Office of Workers' Compensation to members at
least 14 days prior to the next meeting. Staff from Office of Workers' Compensation shall record all meeting proceedings and
prepare minutes for approval by the Health Care Advisory Panel prior to the next meeting. The Health Care Advisory Panel is
authorized to adopt by majority vote bylaws and other procedures for meetings not inconsistent with this chapter. For any
matter considered by the Health Care Advisory Panel that does not have unanimous approval, members shall be authorized to
issue minority reports. Neither the Health Care Advisory Panel nor any committee thereof shall be subject to the provisions
of Chapter 100 of Title 29.
(i) Quorum and voting. -- Administrative decisions, including the election of officers, recommendations to remove a member,
or the adoption or amendment of bylaws, shall be effective upon approval by a majority of all members of the Health Care Advisory
Panel. All other matters shall be subject to approval for by a majority of persons present at a duly constituted meeting consisting
of at least a quorum of members. A quorum of at least 9 members, at least 5 of whom shall be provider representatives referred
to in subsection (c) of this section above.
76 Del. Laws, c. 1, § 10.;
§ 2322B. Procedures and requirements for promulgation of health care payment system.
The health care payment system developed pursuant to this section shall be subject to the following procedures and requirements:
(1) The intent of the General Assembly in authorizing a health care payment system is not to establish a "push down" system,
but is instead to establish a system that eliminates outlier charges and streamlines payments by creating a presumption of
acceptability of charges implemented through a transparent process, involving relevant interested parties, that prospectively
responds to the cost of maintaining a health care practice, eliminating cost-shifting among health care service categories
and avoiding institutionalization of upward rate creep.
(2) The health care payment system shall include payment rates, instructions, guidelines, and payment guides and policies
regarding application of the payment system. When completed, the payment system shall be published on the Internet at no charge
to the user via a link from the Office of Workers' Compensation website at www.delawareworks.com/industrialaffairs/services/workerscomp
.shtml, or a successor website. The payment system shall also be made available in written form at the Office of Workers'
Compensation during regular business hours.
(3) The maximum allowable payment for health care treatment and procedures covered under this chapter shall be the lesser
of the health care provider's actual charges or the fee set by the payment system. The payment system will set fees at 90%
of the seventy-fifth percentile of actual charges within the geozip where the service or treatment is rendered, utilizing
information contained in employers' and insurer carriers' national databases. For purposes of this section, "geozip" means
an area defined by reference to United States ZIP Codes; Delaware shall consist of 1 "197 geozip" (comprised of all areas
within the State where the address has a ZIP Code beginning with the 3 digits "197" or "198"), and 1 "199 geozip" (comprised
of all areas within the State where the address has a ZIP Code beginning with the 3 digits of "199"). If a geozip does not
have the necessary number of charges and fees to calculate a valid percentile for a specific procedure, treatment, or service,
the Health Care Advisory Panel in its discretion may combine data from Delaware's 2 geozips for a specific procedure, treatment,
or service. In the event that the Health Care Advisory Panel determines that there is insufficient data to calculate a valid
percentile for a procedure, treatment or service, or that data from a commercial vendor is not sufficiently reliable to implement
a payment system for professional services for a specific procedure, treatment or service, then the Health Care Advisory Panel
may recommend an alternative method for a payment system for professional charges.
The payment system will be adjusted yearly based on percentage changes to the Consumer Price Index-Urban, U.S. City Average,
All Items, as published by the United States Bureau of Labor Statistics. After January 17, 2010, the Health Care Advisory
Panel shall review the geozip reporting system and make a recommendation concerning whether the State should operate its workers'
compensation health care payment system on a geozip basis or on a single statewide basis.
(4) Upon adoption of the health care payment system, an employer and/or insurance carrier shall pay the lesser of the rate
set forth by the payment system or the health care provider's actual charge. If an employer or insurance carrier contracts
with a provider for the purpose of providing services under this chapter, the rate negotiated in any such contract shall prevail.
(5) Whenever the health care payment system does not set a specific fee for a procedure, treatment or service in the schedule,
the amount of reimbursement shall be at 85% of actual charge as of November 1, 2008.
(6) The health care payment system shall include provisions for health care treatment and procedures performed outside of
the State of Delaware. If any procedure, treatment or service is rendered outside the State of Delaware, the amount of reimbursement
shall be the greater of:
a. The amount set forth in a workers' compensation health care payment system or fee schedule adopted by the state in which
the procedure, treatment or service is rendered, if such a schedule has been adopted; or
b. The amount that would be authorized by the payment system adopted pursuant to this chapter if the service or treatment
were performed in the geozip where the injury occurred or where the employee was principally assigned.
Charges for a procedure, treatment or service outside the State of Delaware shall be subject to the instructions, guidelines,
and payment guides and policies in the health care payment system.
(7) The health care payment system shall include separate service categories for the fields of: ambulatory surgical treatment
centers, anesthesia and related services, dental and related services, hospital care, and professional services.
(8) Hospital fees developed in the health care payment system shall be determined in accordance with the following provisions:
a. Hospital fees billed for inpatient and outpatient services provided to injured workers pursuant to this chapter shall be
reimbursed at a rate equal to 85.0% of each hospital's actual charges for such services as of October 31, 2006, subject to
adjustment as provided in this subsection. Verification that such billing is performed in compliance with this subsection
shall be provided by each hospital to the Office of Workers' Compensation within 60 days of the completion and issuance of
audited financial statements to the hospital by its independent financial auditors. Such verification shall be subject to
further review or audit by the Department of Insurance. Reasonable costs of such review or audit for purposes of this section
shall be reimbursed to the Department of Insurance by the hospital whose billing is audited.
b. On the effective date of the regulation provided for in paragraph (14) of this section, and each January thereafter, the
Department of Labor shall make an automatic adjustment to each hospital's reimbursement rates, as derived pursuant to paragraph
(8)a. of this section, for procedures, treatments or services in effect in January of that year. The amount payable to each
hospital pursuant to paragraph (8)a. of this section shall be adjusted annually by the Department of Labor in accordance with
the Consumer Price Index-Urban, U.S. City Average for Medical Care, as published by the United States Bureau of Labor Statistics.
The adjustment factor adopted by this paragraph shall be reviewed by the Health Care Advisory Panel after January 17, 2010,
and the Panel shall make a recommendation concerning the continued use the Consumer Price Index for medical care, or the adoption
of a different index for cost adjustments in fees for hospital services.
c. Services provided an emergency department of a hospital, or any other facility subject to the federal Emergency Medical
Treatment and Active Labor Act, 42 U.S.C. § 1395dd, and any emergency medical services provided in a pre-hospital setting
by ambulance attendants and/or paramedics, shall be exempt from the health care payment system and shall not be subject to
the requirement that a health care provider be certified pursuant to § 2322D of this title, requirements for preauthorization
of services, or the health care practice guidelines adopted pursuant to § 2322C of this title. Upon admission to a hospital
and discharge from an emergency department, hospital charges shall be subject to paragraph (8)a. of this section.
(9) Ambulatory Surgical Treatment Center ("ASTC") fees developed in the health care payment system shall be determined in
accordance with the following provisions:
a. Fees billed for services provided to injured workers pursuant to this chapter by an ASTC shall be reimbursed at a rate
equal to 85.0% of each ASTC's actual charges for such services as of October 31, 2006, subject to annual adjustment as provided
in this subsection. Verification that such billing is performed in compliance with this subsection shall be provided by each
ASTC to the Office of Workers' Compensation within 60 days of the completion and issuance of audited financial statements
to the ASTC by its independent financial auditors. Such verification shall be subject to further review or audit by the Department
of Insurance. Reasonable costs of such review or audit for purposes of this section shall be reimbursed to the Department
of Insurance by the ASTC whose billing is audited. The ASTC fee determination mechanism adopted pursuant to this subsection
shall apply to all services provided after the effective date of the regulation provided for in paragraph (8) of this section,
regardless of the date of injury.
b. On the effective date of the regulation provided for in paragraph (14) of this section, and each January thereafter, the
Department of Labor shall make an automatic adjustment to each ASTC's reimbursement rates, as derived pursuant to paragraph
(9)a. of this section, for procedures, treatments or services in effect in January of that year. The amount payable to each
ASTC pursuant to paragraph (9)a. of this section shall be adjusted annually by the Department of Labor in accordance with
the Consumer Price Index-Urban, U.S. City Average for Medical Care, as published by the United States Bureau of Labor Statistics.
The adjustment factor adopted by this paragraph shall be reviewed by the Health Care Advisory Panel after January 17, 2010,
and the Panel shall make a recommendation concerning the continued use the Consumer Price Index for medical care, or the adoption
of a different index for cost adjustments in fees for ASTC services.
(10) Professional service fees developed in the health care payment system shall be determined in accordance with the following
provisions:
a. The payment system for professional services shall conform to the Current Procedural Terminology ("CPT"), American Medical
Association, 515 North State Street, Chicago, Illinois, 60610, 2006, no later dates or editions.
b. Services covered by the payment system shall include evaluation and management, surgery, physician, medicine, radiology,
pathology and laboratory, chiropractic, physical therapy, and other services covered under the CPT.
c. The health care payment system shall require that services be reported with the Healthcare Common Procedural Coding System
Level II ("HCPCS Level II") or CPT codes that most comprehensively describe the services performed. Proprietary bundling edits
more restrictive than the National Correct Coding Policy Manual in Comprehensive Code Sequence for Part B Medicare Carriers,
Version 12.0, U.S. Department of Health and Human Services, Centers for Medicare and Medicare Services, 7500 Security Boulevard,
Baltimore, Maryland, 21244, 2006, no later dates or editions, shall be prohibited. Bundling edits is the process of reporting
codes so that they most comprehensively describe the services performed.
d. An allied health care professional, such as a certified registered nurse anesthetist ("CRNA"), physician assistant ("PA"),
or nurse practitioner ("NP"), shall be reimbursed at the same rate as other health care professionals when the allied health
care professional is performing, coding and billing for the same services as other health care professionals if a physician
health care provider is physically present when the service or treatment is rendered, and shall be reimbursed at 80% of the
primary health care provider's rate if a physician health care provider is not physically present when the service or treatment
is rendered.
e. Charges of an independently operated diagnostic testing facility shall be subject to the professional services and HCPCS
Level II health care payment system where applicable. An independent diagnostic testing facility is an entity independent
of a hospital or physician's office, whether a fixed location, a mobile entity, or an individual nonphysician practitioner,
in which diagnostic tests are performed by licensed or certified non-physician personnel under appropriate physician supervision.
(11) As part of the health care payment system, the Health Care Advisory Panel shall adopt and recommend a reimbursement schedule
for pathology, laboratory and radiological services. Such schedule shall be designed to result in savings of 15% from charges
prevailing in workers' compensation matters as of October 31, 2006.
(12) As part of the health care payment system, the Health Care Advisory Panel shall adopt and recommend a formulary and fee
methodology for pharmacy services, prescription drugs and other pharmaceuticals, and for durable medical equipment. Such formulary
and fee methodology shall be designed to result in savings of 15% from charges prevailing in workers' compensation matters
as of October 31, 2006.
(13) Fees for nonclinical services, such as retrieving, copying and transmitting medical reports and records, testimony by
affidavit, deposition or live testimony at any hearing or proceeding, or completion and transmission of any required report,
form or documentation, and associated regulations and procedures for the determination of and verification of containment
of fees, shall be developed and proposed by the Health Care Advisory Panel, and adopted as part of the health care payment
system. Such fees shall be revised periodically on the recommendation of the Health Care Advisory Panel to reflect changes
in the cost of providing such services. Following the adoption of the initial health care payment system, adjustments to fees
for non-clinical services shall be adopted by regulation of the Department of Labor pursuant to Chapter 101 of Title 29. The
nonclinical service fees adopted pursuant to this paragraph shall apply to all services provided after the effective date
of the regulation, regardless of the date of injury.
(14) Subject to the foregoing provisions, the health care payment system authorized by this section shall be approved and
proposed by the Health Care Advisory Panel. Thereafter, the health care payment system shall be adopted by regulation of the
Department of Labor pursuant to Chapter 101 of Title 29. Such regulation shall be promulgated and adopted within 180 days
of the first meeting of the Health Care Advisory Panel. One year after the effective date of the regulation and each January
thereafter, the Department of Labor shall make an automatic adjustment to the maximum payment for a procedure, treatment or
service in effect in January of that year. Except with respect to hospital charges that shall be adjusted in accordance with
paragraph (8) of this section, the Department of Labor shall increase or decrease the maximum payment by the percentage change
of increase or decrease in the Consumer Product Index -- Urban, U.S. City Average, All Items, as published by the United States
Bureau of Labor Statistics. The adjustment provided for in this section shall not be applied to fees for nonclinical services
and supplies.
76 Del. Laws, c. 1, § 11; 76 Del. Laws, c. 143, §§ 1, 2; 77 Del. Laws, c. 94, §§ 1-4.;
§ 2322C. Development of health care practice guidelines.
Health care practice guidelines shall be developed in accordance with the following provisions:
(1) The Health Care Advisory Panel shall adopt and recommend a coordinated set of health care practice guidelines and associated
procedures to guide utilization of health care treatments in workers' compensation, including but not limited to care provided
for the treatment of employees by or under the supervision of a licensed health care provider, prescription drug utilization,
inpatient hospitalization and length of stay, diagnostic testing, physical therapy, chiropractic care and palliative care.
The health care practice guidelines shall apply to all treatments provided after the effective date of the regulation referred
to in paragraph (7) of this section, regardless of the date of injury.
(2) The guidelines shall be, to the extent permitted by the most current medical science or other applicable science, based
on well-documented scientific research concerning efficacious treatment for injuries and occupational disease. To the extent
that well-documented scientific research concerning efficacious treatment is not available at the time of adoption or revision
of the guidelines, the guidelines shall be based upon the best available information concerning national consensus regarding
best health care practices in the relevant health care community.
(3) The guidelines shall, to the extent practical consistent with this section, address treatment of those physical conditions
which occur with the greatest frequency (for services compensable under this chapter), or which require the most expensive
treatments (for services compensable under this chapter), based upon currently available Delaware data.
(4) The guidelines shall contain a section guiding the utilization of prescription medications.
(5) The original health care practice guidelines may be based upon an existing model, already in use, to guide treatment of
medical care for workers' compensation. Additional guidelines may be initially adopted, pursuant to the same criteria, to
obtain coverage of areas or issues of treatment not included in other adopted guidelines. In no event shall multiple guidelines
covering the same aspects of the same medical condition be simultaneously in force.
(6) Services rendered by any health care provider certified to provide treatment services for employees shall be presumed,
in the absence of contrary evidence, to be reasonable and necessary if such services conform to the most current version of
the Delaware health care practice guidelines. Services provided by health care providers that are not certified shall not
be presumed reasonable and necessary unless such services are preauthorized by the employer or insurance carrier, subject
to the exception set forth in § 2322D(b) of this title. It is intended that these guidelines will be produced by Health Care
Advisory Panel subcommittees in coordination with a qualified contractor with expertise in establishing treatment guidelines,
developing the rules that define the use of such guidelines, and disseminating the guidelines in a manner that streamlines
the delivery of health care.
(7) Subject to the foregoing provisions, after receiving the approval and recommendation of the Health Care Advisory Panel,
the guidelines shall be adopted by regulation of the Department of Labor pursuant to Chapter 101 of Title 29. Such regulations
shall be adopted and effective not later than 1 year after the first meeting of the Health Care Advisory Panel. Health care
practice guidelines shall be subject to review and revision by the Health Care Advisory Panel on at least an annual basis.
It is the intent of the General Assembly that the development of health care guidelines will be directed by a predominantly
medical or other health professional panel, recognizing that health care professionals are best equipped to determine appropriate
treatment. It is further intended that subcommittees comprised of representatives from appropriate specialties will make comment
and offer recommendations to the Health Care Advisory Panel.
76 Del. Laws, c. 1, § 12.;
§ 2322D. Certification of health care providers.
(a)(1) Certification shall be required for a health care provider to provide treatment to an employee, pursuant to this chapter,
without the requirement that the health care provider first preauthorize each health care procedure, office visit or health
care service to be provided to the employee with the employer or insurance carrier. The provisions of this subsection shall
apply to all treatments to employees provided after the effective date of the rule provided by subsection (c) of this section,
regardless of the date of injury. A health care provider shall be certified only upon meeting the following minimum certification
requirements:
a. Have a current license to practice, as applicable;
b. Meet other general certification requirements for the specific provider type;
c. Possess a current and valid Drug Enforcement Agency ("DEA") registration, unless not required by the provider's discipline
and scope of practice;
d. Have no previous involuntary termination from participation in Medicare, Medicaid or the Delaware workers' compensation
system, which shall be determined to be inconsistent with certification under regulations adopted pursuant to subsection (c)
of this section;
e. Have no felony convictions in any jurisdiction, under a federal-controlled substance act or for an act involving dishonesty,
fraud or misrepresentation, which shall be determined to be inconsistent with certification under regulations adopted pursuant
to subsection (c) of this section; and
f. Provide proof of adequate, current professional malpractice and liability insurance.
(2) The certification rules shall require that any health care provider to be certified agree to the following terms and conditions:
a. Compliance with Delaware workers' compensation laws and rules;
b. Maintenance of acceptable malpractice coverage;
c. Completion of State-approved continuing education courses in workers' compensation care every 2 years;
d. Practice in a best-practices environment, complying with practice guidelines and Utilization Review Accreditation Council
("URAC") utilization review determinations;
e. Agreement to bill only for services and items performed or provided, and medically necessary, cost-effective and related
to the claim or allowed condition;
f. Agreement to inform an employee of that employee's liability for payment of noncovered services prior to delivery;
g. Acceptance of reimbursement and not unbundled charges into separate procedure codes when a single procedure code is more
appropriate; and
h. Agreement not to balance bill any employee or employer. Employees shall not be required to contribute a copayment or meet
any deductibles.
(b) Notwithstanding the provisions of this section, any health care provider may provide services during 1 office visit, or
other single instance of treatment, without first having obtained prior authorization, and receive reimbursement for reasonable
and necessary services directly related to the employee's injury or condition at the health care provider's usual and customary
fee, or the maximum allowable fee pursuant to the workers' compensation health care payment system adopted pursuant to § 2322B
of this title, whichever is less. The provisions of this subsection are limited to the occasion of the employee's first contact
with any health care provider for treatment of the injury, and further limited to instances when the health care provider
believes in good faith, after inquiry, that the injury or occupational disease was suffered in the course of the employee's
employment. The provisions of this subsection shall apply to all treatments to injured employees provided after the effective
date of the rule provided by subsection (c) of this section, regardless of the date of injury.
(c) Subject to the foregoing provisions, complete rules and regulations relating to provider certification shall be approved
and proposed by the Health Care Advisory Panel. Thereafter, such regulations shall be adopted by regulation of the Department
of Labor pursuant to Chapter 101 of Title 29. Such regulations shall be adopted and effective not later than 1 year after
the first meeting of the Health Care Advisory Panel.
76 Del. Laws, c. 1, § 13; 70 Del. Laws, c. 186, § 1.;
§ 2322E. Development of consistent forms for health care providers.
(a) The Health Care Advisory Panel is authorized and directed to approve and propose standard forms for the provision of health
care services pursuant to this chapter. Upon such recommendation, such forms and provisions governing their use shall be adopted
by regulation of the Department of Labor, pursuant to Chapter 101 of Title 29. Such regulations shall be adopted and effective
not later than 180 days after the first meeting of the Health Care Advisory Panel. Forms authorized by this section shall
provide for prompt initial report of an employee's condition upon the initial occurrence of injury treated pursuant to this
chapter and upon reasonable intervals thereafter to report the conditions and limitations of an employee. At a minimum the
initial reporting form shall provide for an outline of the physical capabilities of the employee in order to enable and encourage
the injured employee to return to work at the highest level of capability.
(b) The health care provider most responsible for the treatment of the employee's work-related injury shall complete and submit,
as expeditiously as possible and not later than 10 days after the date of first evaluation or treatment, a report of employee
condition and limitations, on a form adopted for that purpose pursuant to this section, and shall expeditiously provide copies
of the report of employee condition and limitations to the employee, the employer and the employer's insurance carrier, if
applicable. In the event that an employee is treated and released from the emergency department of a hospital, the health
care provider most responsible for follow up care, if applicable, or the emergency room attending physician, shall provide
the report of employee condition and limitations to the employee upon release, and the employee shall be responsible for provision
of the report to the employer and the employer's insurance carrier, if applicable, within the time period provided by the
rules adopted pursuant to this section.
(c) Every health care provider shall prepare supplemental reports of employee condition and limitations on forms prescribed
pursuant to this section, and shall expeditiously provide copies of the report of employee condition and limitations to the
employee, the employer and the employer's insurance carrier, if applicable.
(d) Within 14 days of receiving a notice of injury, an employer shall provide to the health care provider and the employer's
insurance carrier, if applicable, an outline of modified-duty jobs which may be available to the employee. The health care
provider portion of the employer's modified duty availability report must be signed and returned by the health care provider
within 14 days of the next date of service after receipt of the form from the employer, but not later than 21 days from the
health care provider's receipt of such form.
(e) Fees for completion, copying and transmission of the forms shall be developed by the Health Care Advisory Panel. The employer
or the employer's insurance carrier shall be liable for payment of the fee for all such reports of employee condition and
limitations, provided however, that the employer or insurance carrier shall not be liable for any such reports, requested
by an employee more frequently than once during each 3-month period.
76 Del. Laws, c. 1, § 14; 77 Del. Laws, c. 94, §§ 5, 6.;
§ 2322F. Billing and payment for health care services.
(a) Charges for medical evaluation, treatment and therapy, including all drugs, supplies, tests and associated chargeable
items and events, shall be submitted to the employer or insurance carrier along with a bill or invoice for such charges, accompanied
by records or notes, concerning the treatment or services submitted for payment, documenting the employee's condition and
the appropriateness of the evaluation, treatment or therapy, with reference to the health care practice guidelines adopted
pursuant to § 2322C of this title, or documenting the preauthorization of such evaluation, treatment or therapy. The initial
copy of the supporting notes or records shall be produced without separate or additional charge to the employer, insurance
carrier or employee.
(b) Charges for hospital services and items supplied by a hospital, including all drugs, supplies, tests and associated chargeable
items and events, shall be submitted to the employer or insurance carrier along with a bill or invoice which shall be documented
in a nationally recognized uniform billing code format, in sufficient detail to document the services or items provided, and
any preauthorization of the services and items shall also be documented. The initial copy of the supporting medical notes
or records shall be produced without separate or additional charge to the employer, insurance carrier or employee. Payment
for hospital services, including payment for invoices rendered for emergency department services, shall be made within 30
days of the submission of a "clean claim" accompanied by notes documenting the employee's condition and the appropriateness
of the evaluation, treatment or therapy.
(c) Preauthorized evaluations, treatments or therapy shall be paid at the agreed fee within 30 days of the date of submission
of the invoice, unless the compliance with the preauthorization is contested, in good faith, pursuant to the utilization review
system set forth in subsection (j) of this section below.
(d) Treatments, evaluations and therapy provided by a certified health care provider shall be paid within 30 days of receipt
of the health care provider's bill or invoice together with records or notes as provided in this section, unless compliance
with the health care payment system or practice guidelines adopted pursuant to § 2322B or § 2322C is contested, in good faith,
to the utilization review system set forth in subsection (j) of this section below.
(e) Denial of payment for health care services provided pursuant to this chapter, whether in whole or in part, shall be accompanied
with written explanation of reason for denial.
(f) In the event that a portion of a health care invoice is contested pursuant to this section, the uncontested portion shall
be paid without prejudice to the right to contest the remainder. The time limits set forth in this section shall apply to
payment of all uncontested portions of health care payments.
(g) If, following a hearing, the Industrial Accident Board determines that an employer, an insurance carrier or a health care
provider failed in its responsibilities under § 2322B, § 2322C, § 2322D, § 2322E or § 2322F of this title, it shall assess
a fine of not less than $1,000 nor more than $5,000 for violations of said sections. Such fines shall be payable to the Workers'
Compensation Fund.
(h) Prompt pay required for nonpreauthorized care. -- An employer or insurance carrier shall be required to pay a health care
invoice within 30 days of receipt of the invoice as long as the claim contains substantially all the required data elements
necessary to adjudicate the invoice, unless the invoice is contested in good faith. If the contested invoice pertains to an
acknowledged compensable claim and the denial is based upon compliance with the health care payment system and/or health care
practice guidelines, it shall be referred to utilization review. Any such referral to utilization review shall be made within
15 days of denial. Unpaid invoices shall incur interest at a rate of 1% per month payable to the provider. A provider shall
not hold an employee liable for costs related to nondisputed services for a compensable injury and shall not bill or attempt
to recover from the employee the difference between the provider's charge and the amount paid by the employer or insurance
carrier on a compensable injury.
(i) A health care provider referring an employee to, or encouraging an employee to utilize, any inpatient or outpatient facility
or any medical or therapeutic practice, laboratory, diagnostic testing or radiological imaging machinery, equipment, practice
or facility shall disclose to the employee any financial interest the health care provider has in such inpatient or outpatient
facility, any medical or therapeutic practice, laboratory, diagnostic testing or radiological imaging machinery, equipment,
practice or facility. The requirements of this subsection may be met by the prominent placement of a sign or signs in such
health care provider's office identifying such affiliated equipment, practices or facilities.
(j) Utilization review. -- The Health Care Advisory Panel shall develop a utilization review program. The intent is to provide
reference for employers, insurance carriers, and health care providers for evaluation of health care and charges. The intended
purpose of utilization review services shall be the prompt resolution of issues related to treatment and/or compliance with
the health care payment system or practice guidelines for those claims which have been acknowledged to be compensable. An
employer or insurance carrier may engage in utilization review to evaluate the quality, reasonableness and/or necessity of
proposed or provided health care services for acknowledged compensable claims. Any person conducting a utilization review
program for workers' compensation shall be required to contract with the Office of Workers' Compensation once every 2 years
and certify compliance with Workers' Compensation Utilization Management Standards or Health Utilization Management Standards
of Utilization Review Accreditation Council ("URAC") sufficient to achieve URAC accreditation or submit evidence of accreditation
by URAC. If a party disagrees with the findings following utilization review, a petition may be filed with the Industrial
Accident Board for de novo review. Complete rules and regulations relating to utilization review shall be approved and recommended
by the Health Care Advisory Panel. Thereafter, such rules shall be adopted by regulation of the Department of Labor pursuant
to Chapter 101 of Title 29. Such regulations shall be adopted and effective not later than 1 year after the first meeting
of the Health Care Advisory Panel.
(k) Coordination of health care payments. --
(1) Upon notification to an employer that an employee is exercising that employee's rights under § 2304 of this title with
respect to an injury or condition, the employer shall be exclusively responsible for treatment of that injury or condition
to the extent that the employer is obliged to provide treatment under this chapter.
(2) An employee, as part of a notification that an employee will exercise rights under § 2304 of this title, shall notify
the employer of all health insurance benefits that could compensate the employee for treatment of the injury or condition
in question in the absence of coverage under this chapter. Such notification to the employer is intended to facilitate the
notice provided for in paragraph (k)(4) of this section; the failure of an employee to provide such notice shall not waive
or defeat any rights the employee may have under this chapter.
(3) An employee whose health care treatment for an injury or condition is being paid for pursuant to this chapter shall not
be entitled to seek compensation from any other health insurance carrier for the same treatment. A health care provider who
is being paid for treating an injury or condition pursuant to this chapter shall not seek compensation from any other health
insurance carrier for the same treatment.
(4) At any time that a final determination is made that an employee is not entitled to health care treatment pursuant to this
chapter, the employer shall notify any health insurance carrier of which it is aware pursuant to paragraph (k)(2) of this
section of such a final determination.
(5) Notwithstanding any other provision of this chapter, if a final determination is made that an employee is not entitled
to health care treatment pursuant to this chapter, the employee and/or the health care provider who provided said treatment
may seek payment for such treatment from a health insurance carrier from which the employee had coverage applicable at the
time of the injury or condition.
(6) Any time restrictions imposed upon an employee with respect to making claims against that employee's health insurance
coverage for an injury or condition for which that employee initially sought treatment under this chapter shall be tolled
until notification of the health insurance carrier under paragraph (k)(4) of this section.
(7) No requirements for preauthorization of treatment in any health insurance policy shall be the basis for denying payment
of a claim submitted under paragraph (k)(5) of this section.
(8) With respect to claims submitted by an employee pursuant to paragraph (k)(5) of this section for treatment provided by
a health care provider that had a contract with the health insurance carrier at the time of the treatment, reimbursement shall
be at the contract rate.
(9) With respect to claims submitted by an employee pursuant to paragraph (k)(5) of this section for treatment provided by
a health care provider that did not have a contract with the health insurance carrier at the time of the treatment, reimbursement
shall be at the health insurance carrier's average contract rate for the same treatment with health care providers with whom
it does have a contract.
(10) All claims submitted pursuant to paragraph (k)(5) of this section shall be entitled to treatment under Insurance Department
Regulation 1310 [18 Del. Code Regs. § 1310] or any successor regulation relating to the prompt payment of health care claims
by health insurance carriers.
(11) A health insurance carrier may deny payment of claims submitted under paragraph (k)(5) of this section for health care
that it determines was not reasonable or necessary. However, an employee shall have the right to immediate appeal to an Independent
Utilization Review organization under § 6416 of Title 18 for all such denials of treatment, with the cost of such appeal being
borne by the health insurance carrier.
(12) A health care provider may not balance bill an employee for treatment for which the health care provider has been compensated
under paragraph (k)(8) or (9) of this section.
(l) Balance billing prohibited. --
(1) Any health care provider rendering services under this chapter shall be prohibited from billing or invoicing an employee,
employer or insurance carrier for charges or expenses other than those authorized by this chapter and the health care payment
system provided for herein. No health care provider rendering treatment or services under this chapter shall seek payment
for charges from an employee except as authorized by this section.
(2) Billing procedures where compensability under this chapter is contested.
a. A provider may seek payment of the actual charges from the employee if the employer or insurance carrier notifies the provider
that it does not consider the illness or injury to be compensable. If an employer notifies a provider that it will pay only
a portion of a bill, the provider may seek payment of the unpaid portion from the employee up to the lesser of the actual
charge, the negotiated rate, or the rate authorized by the payment system.
b. If an employee informs the health care provider that a claim is on file at the Department, the provider shall cease all
efforts to collect payment from the employee.
c. While a claim concerning compensability is pending with the Department, a provider may notify an employee that the employee
will be responsible for payment of unpaid invoices when the claim has been determined not to be compensable and the provider
is able to resume collection efforts. Any such notice or reminder made under this subsection shall not be disclosed or otherwise
provided to any credit agency. The provider may request information about the Department claim, and if the employee fails
to respond or provide the information within 90 days, the provider shall be entitled to resume collection efforts directly
and the employee may be determined liable for invoices as otherwise provided by law.
(3) Upon final award or settlement, a provider may resume efforts to collect payment from the employee and the employee shall
be responsible for payment of any outstanding bills without regard to this section and as otherwise provided or authorized
by law. If the service is found compensable, the provider shall not require a payment rate, excluding interest, greater than
the lesser of the actual charge or payment level set by the payment system. The employee shall be responsible for payment
for services found not covered or compensable unless agreed otherwise by the provider and employee. Services not covered or
not compensable shall not be subject to the payment system.
76 Del. Laws, c. 1, § 15; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 94, §§ 7, 8.;
§ 2323. Selection of physician, surgeon, dentist, optometrist or chiropractor by employee.
Any employee who alleges an industrial injury shall have the right to employ a physician, surgeon, dentist, optometrist or
chiropractor of the employee's own choosing. Notice of the employee's intention to employ medical aid as aforesaid shall be
given to the employee's employer or its insurance carrier or to the Board. Notice that medical aid was employed as aforesaid
shall be given within 30 days thereafter to the employer or its insurance carrier in writing. If the alleged injury is subsequently
held to be compensable, the employer shall be liable for the reasonable cost of the services of any physician, surgeon, dentist,
optometrist or chiropractor whose employment was utilized by the employee provided notice of said employment was given to
the employer or its insurance carrier.
Code 1915, § 3193h; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 2; 32 Del. Laws, c. 186, § 1; Code 1935, § 6078; 44 Del. Laws, c. 201; 19 Del. C. 1953, § 2323; 50 Del. Laws, c. 267, § 2; 53 Del. Laws, c. 126, § 3; 55 Del. Laws, c. 83, § 2; 70 Del. Laws, c. 172, § 4; 70 Del. Laws, c. 186, § 1.;
§ 2324. Compensation for total disability.
For injuries resulting in total disability occurring after July 1, 1975, the compensation to be paid during the continuance
of total disability shall be 662/3% of the wages of the injured employee, as defined by this chapter, but the compensation
shall not be more than 662/3% of the average weekly wage per week as announced by the Secretary of the Department of Labor
for the last calendar year for which a determination of the average weekly wage has been made, nor less than 222/9% of the
average weekly wage per week. If at the time of the injury the employee receives wages of less than 222/9% of the average
weekly wage per week, then the employee shall receive the full amount of such wages per week, as compensation. Nothing in
this section shall require the payment of compensation after disability ceases.
Code 1915, § 3193j; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 3; 32 Del. Laws, c. 186, § 2; 35 Del. Laws, c. 192, § 1; 37 Del. Laws, c. 239, § 2; Code 1935, § 6080; 43 Del. Laws, c. 269, § 8; 45 Del. Laws, c. 297, § 1; 46 Del. Laws, c. 29; 47 Del. Laws, c. 160, § 1; 48 Del. Laws, c. 190, § 1; 19 Del. C. 1953, § 2324; 50 Del. Laws, c. 339, § 6; 50 Del. Laws, c. 465, § 2; 52 Del. Laws, c. 27; 57 Del. Laws, c. 520, § 1; 59 Del. Laws, c. 454, § 10; 70 Del. Laws, c. 172, § 4; 70 Del. Laws, c. 186, § 1.;
§ 2325. Compensation during partial disability.
For injuries resulting in partial disability for work, except the particular cases mentioned in subsections (a)-(g) of § 2326
of this title, the compensation to be paid shall be 662/3 percent of the difference between the wages received by the injured
employee before the injury and the earning power of the employee thereafter; but such compensation shall not be more than
662/3% of the average weekly wage per week as announced by the Secretary of Labor for the last calendar year for which a determination
of the average weekly wage has been made. This compensation shall be paid during the period of such partial disability for
work, not, however, beyond 300 weeks. In construing the words "earning power of the employee thereafter" as those words appear
in this section, the Board shall take into consideration the value of gratuities, board, lodging and similar advantages received
by the employee in subsequent employment.
Code 1915, §§ 139A, 3193j, 3193tt; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 3; 32 Del. Laws, c. 186, §§ 2, 4; 35 Del. Laws, c. 192, § 1; 37 Del. Laws, c. 239, § 2; Code 1935, § 6080; 43 Del. Laws, c. 269, § 8; 45 Del. Laws, c. 297, § 2; 47 Del. Laws, c. 160, § 2; 48 Del. Laws, c. 190, § 2; 19 Del. C. 1953, § 2325; 50 Del. Laws, c. 339, § 7; 52 Del. Laws, c. 45, § 1; 57 Del. Laws, c. 520, § 2; 61 Del. Laws, c. 515, § 1.;
§ 2326. Compensation for certain permanent injuries.
(a) For all permanent injuries of the following classes, the compensation to be paid regardless of the earning power of the
injured employee after the injury shall be as follows:
For the loss of a hand, 662/3 percent of wages during 220 weeks;
For the loss of an arm, 662/3 percent of wages during 250 weeks;
For the loss of a foot, 662/3 percent of wages during 160 weeks;
For the loss of a leg, 662/3 percent of wages during 250 weeks;
For the loss of 2 or more of such members, not constituting total disability, 662/3 percent of wages during the aggregate
of the period specified for each;
For the loss of a thumb, 662/3 percent of wages during 75 weeks;
For the loss of a first finger, commonly called index finger, 662/3 percent of wages during 50 weeks;
For the loss of a second finger, 662/3 percent of wages during 40 weeks;
For the loss of a third finger, 662/3 percent of wages during 30 weeks;
For the loss of a fourth finger, commonly called little finger, 662/3 percent of wages during 20 weeks;
The loss of the first phalange of the thumb or any finger shall be considered to be equal to the loss of one half of such
thumb or finger and compensation shall be for one half of the period, and compensation for the loss of one half of the first
phalange shall be for one fourth of the period;
The loss of more phalanges than 1 shall be considered as the loss of the entire finger or thumb, provided, however, that in
no case shall the amount received for more than 1 finger exceed the amount provided in this schedule for the loss of a hand;
The loss of 3 fingers or 2 fingers and a thumb of the same hand shall be considered as the loss of one half of the hand, and
compensation shall be paid for such loss for a period of 110 weeks, or compensation shall be paid for the loss of 3 fingers
or 2 fingers and a thumb of the same hand for the number of weeks stated in the above schedule for such a loss, whichever
is greater;
For the loss of a great toe, 662/3 percent of wages during 40 weeks;
For the loss of 1 of the toes, other than the great toe, 662/3 percent of wages during 15 weeks;
The loss of the first phalange of any toe shall be considered to be equal to the loss of one half of such toe, and compensation
shall
Subchapter II. Payments for Injuries or Death and Incidental Benefits
§ 2321. Minimum duration of incapacity.
Permanent injury relating to hearing or vision loss, surgical, medical and hospital services, medicines and supplies, and
funeral benefits shall be paid from the 1st day of injury. Beginning with the 4th day of incapacity, all compensation otherwise
provided by law shall be paid. If the incapacity extends to 7 days or more, including the day of injury, the employee shall
receive all compensation otherwise provided by law from the 1st day of injury.
Code 1915, § 3193h; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 2; 32 Del. Laws, c. 186, § 1; 37 Del. Laws, c. 239, § 1; Code 1935, § 6078; 43 Del. Laws, c. 269, § 6; 19 Del. C. 1953, § 2321; 49 Del. Laws, c. 429, § 1; 70 Del. Laws, c. 205, § 1; 70 Del. Laws, c. 532, § 1.;
§ 2322. Medical and other services, and supplies as furnished by employer.
(a) During the period of disability the employer shall furnish reasonable surgical, medical, dental, optometric, chiropractic
and hospital services, medicine and supplies, including repairing damage to or replacing false dentures, false eyes or eye
glasses and providing hearing aids, as and when needed, unless the employee refuses to allow them to be furnished by the employer.
(b) If the employer, upon application made to the employer, refuses to furnish the services, medicines and supplies mentioned
in subsection (a) of this section, the employee may procure the same and shall receive from the employer the reasonable cost
thereof within the above limitations.
(c) Upon application made to the Board by the injured employee or someone in the injured employee's behalf, the Board may,
at its discretion, require the employer to furnish additional services, medicines and supplies of the kind mentioned in subsection
(a) of this subsection, as and when needed, for such further period as it shall deem right and proper. The charges for such
additional services, medicines and supplies shall not exceed the rates regularly charged to other individuals for like services
and supplies, provided, however, that the Board shall at all times have jurisdiction to determine and shall determine the
character of services and supplies to be furnished.
(d) An employee, at any time after a claim for compensation is made, shall have the right, upon application to the employee's
employer, to inspect, copy and reproduce any medical records pertaining to said employee in the possession of the employee's
employer or the employee's insurance carrier. Medical records, as used in this subsection, shall include physician's reports,
hospital reports, diagnostic reports, treatment reports, X-rays and X-ray reports.
(e) The fees of medical witnesses testifying at hearings before the Industrial Accident Board in behalf of an injured employee
shall be taxed as a cost to the employer or the employer's insurance carrier in the event the injured employee receives an
award.
(f) Every insurance carrier or self-insurer shall be required to replace or renew a defective or worn out prosthesis for the
life of the injured person without such replacement or renewal constituting a new claim period.
(g) An employee shall be entitled to mileage reimbursement in an amount equal to the State specified mileage allowance rate
in effect at the time of travel, for travel to obtain:
(1) Reasonable surgical, medical, dental, optometric, chiropractic and hospital services; and
(2) Medicine and supplies, including repairing and replacing damaged dentures, false eyes or eyeglasses, and providing hearing
aids and prosthetic devices.
(h) An employer or insurance carrier may pay any health care invoice or indemnity benefit without prejudice to the employer's
or insurance carrier's right to contest the compensability of the underlying claim or the appropriateness of future payments
of health care or indemnity benefits. In order for any provision or payment of health care services to constitute a payment
without prejudice, the employer or insurance carrier shall provide to the health care provider and the employee a clear and
concise explanation of the payment, including the specific expenses that are being paid, the date on which such charges are
paid, and the following statement, which shall be conspicuously displayed on the explanation in at least 14 point type:
This claim is IN DISPUTE and payment is being made without prejudice to the Employer's right to dispute the compensability
of the workers' compensation claim generally or the Employer's obligation to pay this bill in particular.
(1) Partial payment of the uncontested portion of a partially contested health care invoice shall be considered a payment
without prejudice to the right to contest the unpaid portion of a health care invoice, provided the above notice requirements
are met.
(2) No payment without prejudice made under a reservation of rights pursuant to this subsection shall be subject to return,
recapture or offset, absent a showing that the claim for payment was fraudulent.
(3) No payment without prejudice that complies with the above is admissible as evidence to establish that the claim is compensable.
(4) No payment without prejudice that complies with the above shall extend the statute of limitations unless the claim is
otherwise determined by agreement or the Board to be compensable.
(i) Availability of vocational rehabilitation services.
(1) Statement of intent. -- The General Assembly realizes that despite the best efforts of all concerned, some injured workers
may not be able to return to their pre-injury employment and may benefit from vocational rehabilitation.
(2) To the extent assistance may be required in this regard, resources are available to employees including, but not limited
to, from the following organizations:
a. Delaware Division of Vocational Rehabilitation;
b. First State Project with Industry; and
c. One Stop Centers.
(3) Nothing in this section is intended to change the existing rights and responsibilities of injured employees or employers
regarding vocational rehabilitation services.
Code 1915, § 3193h; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 2; 32 Del. Laws, c. 186, § 1; 37 Del. Laws, c. 239, § 1; Code 1935, § 6078; 43 Del. Laws, c. 269, § 6; 46 Del. Laws, c. 27; 48 Del. Laws, c. 229; 19 Del. C. 1953, § 2322; 50 Del. Laws, c. 267, § 1; 50 Del. Laws, c. 339, § 5; 53 Del. Laws, c. 126; 61 Del. Laws, c. 505, § 1; 65 Del. Laws, c. 469, § 1; 70 Del. Laws, c. 172, § 4; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 85, § 1; 76 Del. Laws, c. 1, § 9.;
§ 2322A. Health Care Advisory Panel.
(a) The General Assembly recognizes that issues related to health care in workers' compensation require the expertise of the
medical community and other health care professionals for resolution. A Health Care Advisory Panel is hereby established.
The purpose of the Health Care Advisory Panel shall be to carry out the provisions of this chapter, with a diversity of perspectives,
on matters relating to the provision of health care to employees pursuant to this chapter.
(b) Membership; terms. -- The Health Care Advisory Panel shall consist of 17 members. All members shall be appointed by the
Governor by and with the consent of the Senate. As provided below, a majority of members shall be health care providers or
representatives of providers. Members shall be appointed for a term of up to 3 years and may be re-appointed. Terms of members
shall be staggered so that less than half of the members' terms expire in any 1 year. Members shall receive no compensation.
(c) Representation. -- The Health Care Advisory Panel shall include: 1 representative of insurance carriers providing coverage
pursuant to this chapter; 1 representative of employers; 1 representative of employees; 2 attorneys licensed to practice law,
1 who regularly represents employees and 1 who regularly represents employers in matters arising under this chapter; 3 public
members; and 9 provider members. A public member: may not be nor may ever have been certified, licensed, or registered in
any health-related field; may not be the spouse of someone certified, licensed, or registered in any health-related field;
at the time of appointment may not be a member of the immediate family of someone certified, licensed, or registered in any
health-related field; may not be employed by a company engaged in a directly health-related business; and may not have a material
financial interest in providing goods or services to persons engaged in the practice of medicine. The 9 provider members appointed
to the Health Care Advisory Panel shall include a diverse group of health care providers (or provider representatives) who
are most representative of those providing medical care to employees pursuant to this chapter. The provider members shall
include representatives nominated by the following professional societies or associations:
(1) Four representatives of the Medical Society of Delaware (including 1 in the field of primary care, 1 in the field of neurosurgery,
1 in the field of occupational medicine and 1 at large representative);
(2) One representative of the Delaware Society of Orthopaedic Surgeons;
(3) One representative of the Delaware Academy of Physical Medicine and Rehabilitation;
(4) One representative of the Delaware Healthcare Association;
(5) One representative of the Delaware Chiropractic Association; and
(6) One representative of the Delaware Physical Therapy Association.
One member may represent more than 1 category. In addition to their ability to represent the perspective of their profession,
provider members shall be selected for their ability to represent the interests of the community at large. The Department
of Labor, Office of Workers' Compensation shall provide at least 1 nonvoting staff to assist the Panel in its work.
(d) Any person appointed to fill a vacancy on the Health Care Advisory Panel shall serve for the remainder of the unexpired
term of the former member and shall be eligible for reappointment.
(e) Regular attendance is vital to the purposes of the Health Care Advisory Panel. Members shall accept the duty and obligation
to attend meetings. Repeated absences shall be grounds for removal from the Panel at the discretion of the Governor.
(f) A Chair and Vice Chair shall be elected by a majority of members of the Health Care Advisory Panel for terms of 1 year.
The Chair and/or Vice Chair may be replaced at any time by a majority vote of members of the Health Care Advisory Panel. The
Chair and Vice Chair of the Health Care Advisory Panel shall set an agenda for each meeting, shall preside at meetings, and
shall forward recommendations, opinions and other communications of the Health Care Advisory Panel to the Governor and General
Assembly.
(g) The Health Care Advisory Panel is authorized to appoint by majority vote such committees as it may deem appropriate and
to define the powers duties and responsibilities of such committees. Such committees may include persons who are not regular
members of the Health Care Advisory Panel.
(h) Order of business and schedule of meetings. -- Meetings of the Health Care Advisory Panel shall be held at least 4 times
annually and shall be scheduled by the Chair. Agendas for meetings shall be developed by the Chair and/or Vice-Chair of the
Panel. Any member wishing to include an item on the agenda has the responsibility to draft and present the agenda item to
the Chair for approval and inclusion. An agenda shall be distributed by the Office of Workers' Compensation to members at
least 14 days prior to the next meeting. Staff from Office of Workers' Compensation shall record all meeting proceedings and
prepare minutes for approval by the Health Care Advisory Panel prior to the next meeting. The Health Care Advisory Panel is
authorized to adopt by majority vote bylaws and other procedures for meetings not inconsistent with this chapter. For any
matter considered by the Health Care Advisory Panel that does not have unanimous approval, members shall be authorized to
issue minority reports. Neither the Health Care Advisory Panel nor any committee thereof shall be subject to the provisions
of Chapter 100 of Title 29.
(i) Quorum and voting. -- Administrative decisions, including the election of officers, recommendations to remove a member,
or the adoption or amendment of bylaws, shall be effective upon approval by a majority of all members of the Health Care Advisory
Panel. All other matters shall be subject to approval for by a majority of persons present at a duly constituted meeting consisting
of at least a quorum of members. A quorum of at least 9 members, at least 5 of whom shall be provider representatives referred
to in subsection (c) of this section above.
76 Del. Laws, c. 1, § 10.;
§ 2322B. Procedures and requirements for promulgation of health care payment system.
The health care payment system developed pursuant to this section shall be subject to the following procedures and requirements:
(1) The intent of the General Assembly in authorizing a health care payment system is not to establish a "push down" system,
but is instead to establish a system that eliminates outlier charges and streamlines payments by creating a presumption of
acceptability of charges implemented through a transparent process, involving relevant interested parties, that prospectively
responds to the cost of maintaining a health care practice, eliminating cost-shifting among health care service categories
and avoiding institutionalization of upward rate creep.
(2) The health care payment system shall include payment rates, instructions, guidelines, and payment guides and policies
regarding application of the payment system. When completed, the payment system shall be published on the Internet at no charge
to the user via a link from the Office of Workers' Compensation website at www.delawareworks.com/industrialaffairs/services/workerscomp
.shtml, or a successor website. The payment system shall also be made available in written form at the Office of Workers'
Compensation during regular business hours.
(3) The maximum allowable payment for health care treatment and procedures covered under this chapter shall be the lesser
of the health care provider's actual charges or the fee set by the payment system. The payment system will set fees at 90%
of the seventy-fifth percentile of actual charges within the geozip where the service or treatment is rendered, utilizing
information contained in employers' and insurer carriers' national databases. For purposes of this section, "geozip" means
an area defined by reference to United States ZIP Codes; Delaware shall consist of 1 "197 geozip" (comprised of all areas
within the State where the address has a ZIP Code beginning with the 3 digits "197" or "198"), and 1 "199 geozip" (comprised
of all areas within the State where the address has a ZIP Code beginning with the 3 digits of "199"). If a geozip does not
have the necessary number of charges and fees to calculate a valid percentile for a specific procedure, treatment, or service,
the Health Care Advisory Panel in its discretion may combine data from Delaware's 2 geozips for a specific procedure, treatment,
or service. In the event that the Health Care Advisory Panel determines that there is insufficient data to calculate a valid
percentile for a procedure, treatment or service, or that data from a commercial vendor is not sufficiently reliable to implement
a payment system for professional services for a specific procedure, treatment or service, then the Health Care Advisory Panel
may recommend an alternative method for a payment system for professional charges.
The payment system will be adjusted yearly based on percentage changes to the Consumer Price Index-Urban, U.S. City Average,
All Items, as published by the United States Bureau of Labor Statistics. After January 17, 2010, the Health Care Advisory
Panel shall review the geozip reporting system and make a recommendation concerning whether the State should operate its workers'
compensation health care payment system on a geozip basis or on a single statewide basis.
(4) Upon adoption of the health care payment system, an employer and/or insurance carrier shall pay the lesser of the rate
set forth by the payment system or the health care provider's actual charge. If an employer or insurance carrier contracts
with a provider for the purpose of providing services under this chapter, the rate negotiated in any such contract shall prevail.
(5) Whenever the health care payment system does not set a specific fee for a procedure, treatment or service in the schedule,
the amount of reimbursement shall be at 85% of actual charge as of November 1, 2008.
(6) The health care payment system shall include provisions for health care treatment and procedures performed outside of
the State of Delaware. If any procedure, treatment or service is rendered outside the State of Delaware, the amount of reimbursement
shall be the greater of:
a. The amount set forth in a workers' compensation health care payment system or fee schedule adopted by the state in which
the procedure, treatment or service is rendered, if such a schedule has been adopted; or
b. The amount that would be authorized by the payment system adopted pursuant to this chapter if the service or treatment
were performed in the geozip where the injury occurred or where the employee was principally assigned.
Charges for a procedure, treatment or service outside the State of Delaware shall be subject to the instructions, guidelines,
and payment guides and policies in the health care payment system.
(7) The health care payment system shall include separate service categories for the fields of: ambulatory surgical treatment
centers, anesthesia and related services, dental and related services, hospital care, and professional services.
(8) Hospital fees developed in the health care payment system shall be determined in accordance with the following provisions:
a. Hospital fees billed for inpatient and outpatient services provided to injured workers pursuant to this chapter shall be
reimbursed at a rate equal to 85.0% of each hospital's actual charges for such services as of October 31, 2006, subject to
adjustment as provided in this subsection. Verification that such billing is performed in compliance with this subsection
shall be provided by each hospital to the Office of Workers' Compensation within 60 days of the completion and issuance of
audited financial statements to the hospital by its independent financial auditors. Such verification shall be subject to
further review or audit by the Department of Insurance. Reasonable costs of such review or audit for purposes of this section
shall be reimbursed to the Department of Insurance by the hospital whose billing is audited.
b. On the effective date of the regulation provided for in paragraph (14) of this section, and each January thereafter, the
Department of Labor shall make an automatic adjustment to each hospital's reimbursement rates, as derived pursuant to paragraph
(8)a. of this section, for procedures, treatments or services in effect in January of that year. The amount payable to each
hospital pursuant to paragraph (8)a. of this section shall be adjusted annually by the Department of Labor in accordance with
the Consumer Price Index-Urban, U.S. City Average for Medical Care, as published by the United States Bureau of Labor Statistics.
The adjustment factor adopted by this paragraph shall be reviewed by the Health Care Advisory Panel after January 17, 2010,
and the Panel shall make a recommendation concerning the continued use the Consumer Price Index for medical care, or the adoption
of a different index for cost adjustments in fees for hospital services.
c. Services provided an emergency department of a hospital, or any other facility subject to the federal Emergency Medical
Treatment and Active Labor Act, 42 U.S.C. § 1395dd, and any emergency medical services provided in a pre-hospital setting
by ambulance attendants and/or paramedics, shall be exempt from the health care payment system and shall not be subject to
the requirement that a health care provider be certified pursuant to § 2322D of this title, requirements for preauthorization
of services, or the health care practice guidelines adopted pursuant to § 2322C of this title. Upon admission to a hospital
and discharge from an emergency department, hospital charges shall be subject to paragraph (8)a. of this section.
(9) Ambulatory Surgical Treatment Center ("ASTC") fees developed in the health care payment system shall be determined in
accordance with the following provisions:
a. Fees billed for services provided to injured workers pursuant to this chapter by an ASTC shall be reimbursed at a rate
equal to 85.0% of each ASTC's actual charges for such services as of October 31, 2006, subject to annual adjustment as provided
in this subsection. Verification that such billing is performed in compliance with this subsection shall be provided by each
ASTC to the Office of Workers' Compensation within 60 days of the completion and issuance of audited financial statements
to the ASTC by its independent financial auditors. Such verification shall be subject to further review or audit by the Department
of Insurance. Reasonable costs of such review or audit for purposes of this section shall be reimbursed to the Department
of Insurance by the ASTC whose billing is audited. The ASTC fee determination mechanism adopted pursuant to this subsection
shall apply to all services provided after the effective date of the regulation provided for in paragraph (8) of this section,
regardless of the date of injury.
b. On the effective date of the regulation provided for in paragraph (14) of this section, and each January thereafter, the
Department of Labor shall make an automatic adjustment to each ASTC's reimbursement rates, as derived pursuant to paragraph
(9)a. of this section, for procedures, treatments or services in effect in January of that year. The amount payable to each
ASTC pursuant to paragraph (9)a. of this section shall be adjusted annually by the Department of Labor in accordance with
the Consumer Price Index-Urban, U.S. City Average for Medical Care, as published by the United States Bureau of Labor Statistics.
The adjustment factor adopted by this paragraph shall be reviewed by the Health Care Advisory Panel after January 17, 2010,
and the Panel shall make a recommendation concerning the continued use the Consumer Price Index for medical care, or the adoption
of a different index for cost adjustments in fees for ASTC services.
(10) Professional service fees developed in the health care payment system shall be determined in accordance with the following
provisions:
a. The payment system for professional services shall conform to the Current Procedural Terminology ("CPT"), American Medical
Association, 515 North State Street, Chicago, Illinois, 60610, 2006, no later dates or editions.
b. Services covered by the payment system shall include evaluation and management, surgery, physician, medicine, radiology,
pathology and laboratory, chiropractic, physical therapy, and other services covered under the CPT.
c. The health care payment system shall require that services be reported with the Healthcare Common Procedural Coding System
Level II ("HCPCS Level II") or CPT codes that most comprehensively describe the services performed. Proprietary bundling edits
more restrictive than the National Correct Coding Policy Manual in Comprehensive Code Sequence for Part B Medicare Carriers,
Version 12.0, U.S. Department of Health and Human Services, Centers for Medicare and Medicare Services, 7500 Security Boulevard,
Baltimore, Maryland, 21244, 2006, no later dates or editions, shall be prohibited. Bundling edits is the process of reporting
codes so that they most comprehensively describe the services performed.
d. An allied health care professional, such as a certified registered nurse anesthetist ("CRNA"), physician assistant ("PA"),
or nurse practitioner ("NP"), shall be reimbursed at the same rate as other health care professionals when the allied health
care professional is performing, coding and billing for the same services as other health care professionals if a physician
health care provider is physically present when the service or treatment is rendered, and shall be reimbursed at 80% of the
primary health care provider's rate if a physician health care provider is not physically present when the service or treatment
is rendered.
e. Charges of an independently operated diagnostic testing facility shall be subject to the professional services and HCPCS
Level II health care payment system where applicable. An independent diagnostic testing facility is an entity independent
of a hospital or physician's office, whether a fixed location, a mobile entity, or an individual nonphysician practitioner,
in which diagnostic tests are performed by licensed or certified non-physician personnel under appropriate physician supervision.
(11) As part of the health care payment system, the Health Care Advisory Panel shall adopt and recommend a reimbursement schedule
for pathology, laboratory and radiological services. Such schedule shall be designed to result in savings of 15% from charges
prevailing in workers' compensation matters as of October 31, 2006.
(12) As part of the health care payment system, the Health Care Advisory Panel shall adopt and recommend a formulary and fee
methodology for pharmacy services, prescription drugs and other pharmaceuticals, and for durable medical equipment. Such formulary
and fee methodology shall be designed to result in savings of 15% from charges prevailing in workers' compensation matters
as of October 31, 2006.
(13) Fees for nonclinical services, such as retrieving, copying and transmitting medical reports and records, testimony by
affidavit, deposition or live testimony at any hearing or proceeding, or completion and transmission of any required report,
form or documentation, and associated regulations and procedures for the determination of and verification of containment
of fees, shall be developed and proposed by the Health Care Advisory Panel, and adopted as part of the health care payment
system. Such fees shall be revised periodically on the recommendation of the Health Care Advisory Panel to reflect changes
in the cost of providing such services. Following the adoption of the initial health care payment system, adjustments to fees
for non-clinical services shall be adopted by regulation of the Department of Labor pursuant to Chapter 101 of Title 29. The
nonclinical service fees adopted pursuant to this paragraph shall apply to all services provided after the effective date
of the regulation, regardless of the date of injury.
(14) Subject to the foregoing provisions, the health care payment system authorized by this section shall be approved and
proposed by the Health Care Advisory Panel. Thereafter, the health care payment system shall be adopted by regulation of the
Department of Labor pursuant to Chapter 101 of Title 29. Such regulation shall be promulgated and adopted within 180 days
of the first meeting of the Health Care Advisory Panel. One year after the effective date of the regulation and each January
thereafter, the Department of Labor shall make an automatic adjustment to the maximum payment for a procedure, treatment or
service in effect in January of that year. Except with respect to hospital charges that shall be adjusted in accordance with
paragraph (8) of this section, the Department of Labor shall increase or decrease the maximum payment by the percentage change
of increase or decrease in the Consumer Product Index -- Urban, U.S. City Average, All Items, as published by the United States
Bureau of Labor Statistics. The adjustment provided for in this section shall not be applied to fees for nonclinical services
and supplies.
76 Del. Laws, c. 1, § 11; 76 Del. Laws, c. 143, §§ 1, 2; 77 Del. Laws, c. 94, §§ 1-4.;
§ 2322C. Development of health care practice guidelines.
Health care practice guidelines shall be developed in accordance with the following provisions:
(1) The Health Care Advisory Panel shall adopt and recommend a coordinated set of health care practice guidelines and associated
procedures to guide utilization of health care treatments in workers' compensation, including but not limited to care provided
for the treatment of employees by or under the supervision of a licensed health care provider, prescription drug utilization,
inpatient hospitalization and length of stay, diagnostic testing, physical therapy, chiropractic care and palliative care.
The health care practice guidelines shall apply to all treatments provided after the effective date of the regulation referred
to in paragraph (7) of this section, regardless of the date of injury.
(2) The guidelines shall be, to the extent permitted by the most current medical science or other applicable science, based
on well-documented scientific research concerning efficacious treatment for injuries and occupational disease. To the extent
that well-documented scientific research concerning efficacious treatment is not available at the time of adoption or revision
of the guidelines, the guidelines shall be based upon the best available information concerning national consensus regarding
best health care practices in the relevant health care community.
(3) The guidelines shall, to the extent practical consistent with this section, address treatment of those physical conditions
which occur with the greatest frequency (for services compensable under this chapter), or which require the most expensive
treatments (for services compensable under this chapter), based upon currently available Delaware data.
(4) The guidelines shall contain a section guiding the utilization of prescription medications.
(5) The original health care practice guidelines may be based upon an existing model, already in use, to guide treatment of
medical care for workers' compensation. Additional guidelines may be initially adopted, pursuant to the same criteria, to
obtain coverage of areas or issues of treatment not included in other adopted guidelines. In no event shall multiple guidelines
covering the same aspects of the same medical condition be simultaneously in force.
(6) Services rendered by any health care provider certified to provide treatment services for employees shall be presumed,
in the absence of contrary evidence, to be reasonable and necessary if such services conform to the most current version of
the Delaware health care practice guidelines. Services provided by health care providers that are not certified shall not
be presumed reasonable and necessary unless such services are preauthorized by the employer or insurance carrier, subject
to the exception set forth in § 2322D(b) of this title. It is intended that these guidelines will be produced by Health Care
Advisory Panel subcommittees in coordination with a qualified contractor with expertise in establishing treatment guidelines,
developing the rules that define the use of such guidelines, and disseminating the guidelines in a manner that streamlines
the delivery of health care.
(7) Subject to the foregoing provisions, after receiving the approval and recommendation of the Health Care Advisory Panel,
the guidelines shall be adopted by regulation of the Department of Labor pursuant to Chapter 101 of Title 29. Such regulations
shall be adopted and effective not later than 1 year after the first meeting of the Health Care Advisory Panel. Health care
practice guidelines shall be subject to review and revision by the Health Care Advisory Panel on at least an annual basis.
It is the intent of the General Assembly that the development of health care guidelines will be directed by a predominantly
medical or other health professional panel, recognizing that health care professionals are best equipped to determine appropriate
treatment. It is further intended that subcommittees comprised of representatives from appropriate specialties will make comment
and offer recommendations to the Health Care Advisory Panel.
76 Del. Laws, c. 1, § 12.;
§ 2322D. Certification of health care providers.
(a)(1) Certification shall be required for a health care provider to provide treatment to an employee, pursuant to this chapter,
without the requirement that the health care provider first preauthorize each health care procedure, office visit or health
care service to be provided to the employee with the employer or insurance carrier. The provisions of this subsection shall
apply to all treatments to employees provided after the effective date of the rule provided by subsection (c) of this section,
regardless of the date of injury. A health care provider shall be certified only upon meeting the following minimum certification
requirements:
a. Have a current license to practice, as applicable;
b. Meet other general certification requirements for the specific provider type;
c. Possess a current and valid Drug Enforcement Agency ("DEA") registration, unless not required by the provider's discipline
and scope of practice;
d. Have no previous involuntary termination from participation in Medicare, Medicaid or the Delaware workers' compensation
system, which shall be determined to be inconsistent with certification under regulations adopted pursuant to subsection (c)
of this section;
e. Have no felony convictions in any jurisdiction, under a federal-controlled substance act or for an act involving dishonesty,
fraud or misrepresentation, which shall be determined to be inconsistent with certification under regulations adopted pursuant
to subsection (c) of this section; and
f. Provide proof of adequate, current professional malpractice and liability insurance.
(2) The certification rules shall require that any health care provider to be certified agree to the following terms and conditions:
a. Compliance with Delaware workers' compensation laws and rules;
b. Maintenance of acceptable malpractice coverage;
c. Completion of State-approved continuing education courses in workers' compensation care every 2 years;
d. Practice in a best-practices environment, complying with practice guidelines and Utilization Review Accreditation Council
("URAC") utilization review determinations;
e. Agreement to bill only for services and items performed or provided, and medically necessary, cost-effective and related
to the claim or allowed condition;
f. Agreement to inform an employee of that employee's liability for payment of noncovered services prior to delivery;
g. Acceptance of reimbursement and not unbundled charges into separate procedure codes when a single procedure code is more
appropriate; and
h. Agreement not to balance bill any employee or employer. Employees shall not be required to contribute a copayment or meet
any deductibles.
(b) Notwithstanding the provisions of this section, any health care provider may provide services during 1 office visit, or
other single instance of treatment, without first having obtained prior authorization, and receive reimbursement for reasonable
and necessary services directly related to the employee's injury or condition at the health care provider's usual and customary
fee, or the maximum allowable fee pursuant to the workers' compensation health care payment system adopted pursuant to § 2322B
of this title, whichever is less. The provisions of this subsection are limited to the occasion of the employee's first contact
with any health care provider for treatment of the injury, and further limited to instances when the health care provider
believes in good faith, after inquiry, that the injury or occupational disease was suffered in the course of the employee's
employment. The provisions of this subsection shall apply to all treatments to injured employees provided after the effective
date of the rule provided by subsection (c) of this section, regardless of the date of injury.
(c) Subject to the foregoing provisions, complete rules and regulations relating to provider certification shall be approved
and proposed by the Health Care Advisory Panel. Thereafter, such regulations shall be adopted by regulation of the Department
of Labor pursuant to Chapter 101 of Title 29. Such regulations shall be adopted and effective not later than 1 year after
the first meeting of the Health Care Advisory Panel.
76 Del. Laws, c. 1, § 13; 70 Del. Laws, c. 186, § 1.;
§ 2322E. Development of consistent forms for health care providers.
(a) The Health Care Advisory Panel is authorized and directed to approve and propose standard forms for the provision of health
care services pursuant to this chapter. Upon such recommendation, such forms and provisions governing their use shall be adopted
by regulation of the Department of Labor, pursuant to Chapter 101 of Title 29. Such regulations shall be adopted and effective
not later than 180 days after the first meeting of the Health Care Advisory Panel. Forms authorized by this section shall
provide for prompt initial report of an employee's condition upon the initial occurrence of injury treated pursuant to this
chapter and upon reasonable intervals thereafter to report the conditions and limitations of an employee. At a minimum the
initial reporting form shall provide for an outline of the physical capabilities of the employee in order to enable and encourage
the injured employee to return to work at the highest level of capability.
(b) The health care provider most responsible for the treatment of the employee's work-related injury shall complete and submit,
as expeditiously as possible and not later than 10 days after the date of first evaluation or treatment, a report of employee
condition and limitations, on a form adopted for that purpose pursuant to this section, and shall expeditiously provide copies
of the report of employee condition and limitations to the employee, the employer and the employer's insurance carrier, if
applicable. In the event that an employee is treated and released from the emergency department of a hospital, the health
care provider most responsible for follow up care, if applicable, or the emergency room attending physician, shall provide
the report of employee condition and limitations to the employee upon release, and the employee shall be responsible for provision
of the report to the employer and the employer's insurance carrier, if applicable, within the time period provided by the
rules adopted pursuant to this section.
(c) Every health care provider shall prepare supplemental reports of employee condition and limitations on forms prescribed
pursuant to this section, and shall expeditiously provide copies of the report of employee condition and limitations to the
employee, the employer and the employer's insurance carrier, if applicable.
(d) Within 14 days of receiving a notice of injury, an employer shall provide to the health care provider and the employer's
insurance carrier, if applicable, an outline of modified-duty jobs which may be available to the employee. The health care
provider portion of the employer's modified duty availability report must be signed and returned by the health care provider
within 14 days of the next date of service after receipt of the form from the employer, but not later than 21 days from the
health care provider's receipt of such form.
(e) Fees for completion, copying and transmission of the forms shall be developed by the Health Care Advisory Panel. The employer
or the employer's insurance carrier shall be liable for payment of the fee for all such reports of employee condition and
limitations, provided however, that the employer or insurance carrier shall not be liable for any such reports, requested
by an employee more frequently than once during each 3-month period.
76 Del. Laws, c. 1, § 14; 77 Del. Laws, c. 94, §§ 5, 6.;
§ 2322F. Billing and payment for health care services.
(a) Charges for medical evaluation, treatment and therapy, including all drugs, supplies, tests and associated chargeable
items and events, shall be submitted to the employer or insurance carrier along with a bill or invoice for such charges, accompanied
by records or notes, concerning the treatment or services submitted for payment, documenting the employee's condition and
the appropriateness of the evaluation, treatment or therapy, with reference to the health care practice guidelines adopted
pursuant to § 2322C of this title, or documenting the preauthorization of such evaluation, treatment or therapy. The initial
copy of the supporting notes or records shall be produced without separate or additional charge to the employer, insurance
carrier or employee.
(b) Charges for hospital services and items supplied by a hospital, including all drugs, supplies, tests and associated chargeable
items and events, shall be submitted to the employer or insurance carrier along with a bill or invoice which shall be documented
in a nationally recognized uniform billing code format, in sufficient detail to document the services or items provided, and
any preauthorization of the services and items shall also be documented. The initial copy of the supporting medical notes
or records shall be produced without separate or additional charge to the employer, insurance carrier or employee. Payment
for hospital services, including payment for invoices rendered for emergency department services, shall be made within 30
days of the submission of a "clean claim" accompanied by notes documenting the employee's condition and the appropriateness
of the evaluation, treatment or therapy.
(c) Preauthorized evaluations, treatments or therapy shall be paid at the agreed fee within 30 days of the date of submission
of the invoice, unless the compliance with the preauthorization is contested, in good faith, pursuant to the utilization review
system set forth in subsection (j) of this section below.
(d) Treatments, evaluations and therapy provided by a certified health care provider shall be paid within 30 days of receipt
of the health care provider's bill or invoice together with records or notes as provided in this section, unless compliance
with the health care payment system or practice guidelines adopted pursuant to § 2322B or § 2322C is contested, in good faith,
to the utilization review system set forth in subsection (j) of this section below.
(e) Denial of payment for health care services provided pursuant to this chapter, whether in whole or in part, shall be accompanied
with written explanation of reason for denial.
(f) In the event that a portion of a health care invoice is contested pursuant to this section, the uncontested portion shall
be paid without prejudice to the right to contest the remainder. The time limits set forth in this section shall apply to
payment of all uncontested portions of health care payments.
(g) If, following a hearing, the Industrial Accident Board determines that an employer, an insurance carrier or a health care
provider failed in its responsibilities under § 2322B, § 2322C, § 2322D, § 2322E or § 2322F of this title, it shall assess
a fine of not less than $1,000 nor more than $5,000 for violations of said sections. Such fines shall be payable to the Workers'
Compensation Fund.
(h) Prompt pay required for nonpreauthorized care. -- An employer or insurance carrier shall be required to pay a health care
invoice within 30 days of receipt of the invoice as long as the claim contains substantially all the required data elements
necessary to adjudicate the invoice, unless the invoice is contested in good faith. If the contested invoice pertains to an
acknowledged compensable claim and the denial is based upon compliance with the health care payment system and/or health care
practice guidelines, it shall be referred to utilization review. Any such referral to utilization review shall be made within
15 days of denial. Unpaid invoices shall incur interest at a rate of 1% per month payable to the provider. A provider shall
not hold an employee liable for costs related to nondisputed services for a compensable injury and shall not bill or attempt
to recover from the employee the difference between the provider's charge and the amount paid by the employer or insurance
carrier on a compensable injury.
(i) A health care provider referring an employee to, or encouraging an employee to utilize, any inpatient or outpatient facility
or any medical or therapeutic practice, laboratory, diagnostic testing or radiological imaging machinery, equipment, practice
or facility shall disclose to the employee any financial interest the health care provider has in such inpatient or outpatient
facility, any medical or therapeutic practice, laboratory, diagnostic testing or radiological imaging machinery, equipment,
practice or facility. The requirements of this subsection may be met by the prominent placement of a sign or signs in such
health care provider's office identifying such affiliated equipment, practices or facilities.
(j) Utilization review. -- The Health Care Advisory Panel shall develop a utilization review program. The intent is to provide
reference for employers, insurance carriers, and health care providers for evaluation of health care and charges. The intended
purpose of utilization review services shall be the prompt resolution of issues related to treatment and/or compliance with
the health care payment system or practice guidelines for those claims which have been acknowledged to be compensable. An
employer or insurance carrier may engage in utilization review to evaluate the quality, reasonableness and/or necessity of
proposed or provided health care services for acknowledged compensable claims. Any person conducting a utilization review
program for workers' compensation shall be required to contract with the Office of Workers' Compensation once every 2 years
and certify compliance with Workers' Compensation Utilization Management Standards or Health Utilization Management Standards
of Utilization Review Accreditation Council ("URAC") sufficient to achieve URAC accreditation or submit evidence of accreditation
by URAC. If a party disagrees with the findings following utilization review, a petition may be filed with the Industrial
Accident Board for de novo review. Complete rules and regulations relating to utilization review shall be approved and recommended
by the Health Care Advisory Panel. Thereafter, such rules shall be adopted by regulation of the Department of Labor pursuant
to Chapter 101 of Title 29. Such regulations shall be adopted and effective not later than 1 year after the first meeting
of the Health Care Advisory Panel.
(k) Coordination of health care payments. --
(1) Upon notification to an employer that an employee is exercising that employee's rights under § 2304 of this title with
respect to an injury or condition, the employer shall be exclusively responsible for treatment of that injury or condition
to the extent that the employer is obliged to provide treatment under this chapter.
(2) An employee, as part of a notification that an employee will exercise rights under § 2304 of this title, shall notify
the employer of all health insurance benefits that could compensate the employee for treatment of the injury or condition
in question in the absence of coverage under this chapter. Such notification to the employer is intended to facilitate the
notice provided for in paragraph (k)(4) of this section; the failure of an employee to provide such notice shall not waive
or defeat any rights the employee may have under this chapter.
(3) An employee whose health care treatment for an injury or condition is being paid for pursuant to this chapter shall not
be entitled to seek compensation from any other health insurance carrier for the same treatment. A health care provider who
is being paid for treating an injury or condition pursuant to this chapter shall not seek compensation from any other health
insurance carrier for the same treatment.
(4) At any time that a final determination is made that an employee is not entitled to health care treatment pursuant to this
chapter, the employer shall notify any health insurance carrier of which it is aware pursuant to paragraph (k)(2) of this
section of such a final determination.
(5) Notwithstanding any other provision of this chapter, if a final determination is made that an employee is not entitled
to health care treatment pursuant to this chapter, the employee and/or the health care provider who provided said treatment
may seek payment for such treatment from a health insurance carrier from which the employee had coverage applicable at the
time of the injury or condition.
(6) Any time restrictions imposed upon an employee with respect to making claims against that employee's health insurance
coverage for an injury or condition for which that employee initially sought treatment under this chapter shall be tolled
until notification of the health insurance carrier under paragraph (k)(4) of this section.
(7) No requirements for preauthorization of treatment in any health insurance policy shall be the basis for denying payment
of a claim submitted under paragraph (k)(5) of this section.
(8) With respect to claims submitted by an employee pursuant to paragraph (k)(5) of this section for treatment provided by
a health care provider that had a contract with the health insurance carrier at the time of the treatment, reimbursement shall
be at the contract rate.
(9) With respect to claims submitted by an employee pursuant to paragraph (k)(5) of this section for treatment provided by
a health care provider that did not have a contract with the health insurance carrier at the time of the treatment, reimbursement
shall be at the health insurance carrier's average contract rate for the same treatment with health care providers with whom
it does have a contract.
(10) All claims submitted pursuant to paragraph (k)(5) of this section shall be entitled to treatment under Insurance Department
Regulation 1310 [18 Del. Code Regs. § 1310] or any successor regulation relating to the prompt payment of health care claims
by health insurance carriers.
(11) A health insurance carrier may deny payment of claims submitted under paragraph (k)(5) of this section for health care
that it determines was not reasonable or necessary. However, an employee shall have the right to immediate appeal to an Independent
Utilization Review organization under § 6416 of Title 18 for all such denials of treatment, with the cost of such appeal being
borne by the health insurance carrier.
(12) A health care provider may not balance bill an employee for treatment for which the health care provider has been compensated
under paragraph (k)(8) or (9) of this section.
(l) Balance billing prohibited. --
(1) Any health care provider rendering services under this chapter shall be prohibited from billing or invoicing an employee,
employer or insurance carrier for charges or expenses other than those authorized by this chapter and the health care payment
system provided for herein. No health care provider rendering treatment or services under this chapter shall seek payment
for charges from an employee except as authorized by this section.
(2) Billing procedures where compensability under this chapter is contested.
a. A provider may seek payment of the actual charges from the employee if the employer or insurance carrier notifies the provider
that it does not consider the illness or injury to be compensable. If an employer notifies a provider that it will pay only
a portion of a bill, the provider may seek payment of the unpaid portion from the employee up to the lesser of the actual
charge, the negotiated rate, or the rate authorized by the payment system.
b. If an employee informs the health care provider that a claim is on file at the Department, the provider shall cease all
efforts to collect payment from the employee.
c. While a claim concerning compensability is pending with the Department, a provider may notify an employee that the employee
will be responsible for payment of unpaid invoices when the claim has been determined not to be compensable and the provider
is able to resume collection efforts. Any such notice or reminder made under this subsection shall not be disclosed or otherwise
provided to any credit agency. The provider may request information about the Department claim, and if the employee fails
to respond or provide the information within 90 days, the provider shall be entitled to resume collection efforts directly
and the employee may be determined liable for invoices as otherwise provided by law.
(3) Upon final award or settlement, a provider may resume efforts to collect payment from the employee and the employee shall
be responsible for payment of any outstanding bills without regard to this section and as otherwise provided or authorized
by law. If the service is found compensable, the provider shall not require a payment rate, excluding interest, greater than
the lesser of the actual charge or payment level set by the payment system. The employee shall be responsible for payment
for services found not covered or compensable unless agreed otherwise by the provider and employee. Services not covered or
not compensable shall not be subject to the payment system.
76 Del. Laws, c. 1, § 15; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 94, §§ 7, 8.;
§ 2323. Selection of physician, surgeon, dentist, optometrist or chiropractor by employee.
Any employee who alleges an industrial injury shall have the right to employ a physician, surgeon, dentist, optometrist or
chiropractor of the employee's own choosing. Notice of the employee's intention to employ medical aid as aforesaid shall be
given to the employee's employer or its insurance carrier or to the Board. Notice that medical aid was employed as aforesaid
shall be given within 30 days thereafter to the employer or its insurance carrier in writing. If the alleged injury is subsequently
held to be compensable, the employer shall be liable for the reasonable cost of the services of any physician, surgeon, dentist,
optometrist or chiropractor whose employment was utilized by the employee provided notice of said employment was given to
the employer or its insurance carrier.
Code 1915, § 3193h; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 2; 32 Del. Laws, c. 186, § 1; Code 1935, § 6078; 44 Del. Laws, c. 201; 19 Del. C. 1953, § 2323; 50 Del. Laws, c. 267, § 2; 53 Del. Laws, c. 126, § 3; 55 Del. Laws, c. 83, § 2; 70 Del. Laws, c. 172, § 4; 70 Del. Laws, c. 186, § 1.;
§ 2324. Compensation for total disability.
For injuries resulting in total disability occurring after July 1, 1975, the compensation to be paid during the continuance
of total disability shall be 662/3% of the wages of the injured employee, as defined by this chapter, but the compensation
shall not be more than 662/3% of the average weekly wage per week as announced by the Secretary of the Department of Labor
for the last calendar year for which a determination of the average weekly wage has been made, nor less than 222/9% of the
average weekly wage per week. If at the time of the injury the employee receives wages of less than 222/9% of the average
weekly wage per week, then the employee shall receive the full amount of such wages per week, as compensation. Nothing in
this section shall require the payment of compensation after disability ceases.
Code 1915, § 3193j; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 3; 32 Del. Laws, c. 186, § 2; 35 Del. Laws, c. 192, § 1; 37 Del. Laws, c. 239, § 2; Code 1935, § 6080; 43 Del. Laws, c. 269, § 8; 45 Del. Laws, c. 297, § 1; 46 Del. Laws, c. 29; 47 Del. Laws, c. 160, § 1; 48 Del. Laws, c. 190, § 1; 19 Del. C. 1953, § 2324; 50 Del. Laws, c. 339, § 6; 50 Del. Laws, c. 465, § 2; 52 Del. Laws, c. 27; 57 Del. Laws, c. 520, § 1; 59 Del. Laws, c. 454, § 10; 70 Del. Laws, c. 172, § 4; 70 Del. Laws, c. 186, § 1.;
§ 2325. Compensation during partial disability.
For injuries resulting in partial disability for work, except the particular cases mentioned in subsections (a)-(g) of § 2326
of this title, the compensation to be paid shall be 662/3 percent of the difference between the wages received by the injured
employee before the injury and the earning power of the employee thereafter; but such compensation shall not be more than
662/3% of the average weekly wage per week as announced by the Secretary of Labor for the last calendar year for which a determination
of the average weekly wage has been made. This compensation shall be paid during the period of such partial disability for
work, not, however, beyond 300 weeks. In construing the words "earning power of the employee thereafter" as those words appear
in this section, the Board shall take into consideration the value of gratuities, board, lodging and similar advantages received
by the employee in subsequent employment.
Code 1915, §§ 139A, 3193j, 3193tt; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 3; 32 Del. Laws, c. 186, §§ 2, 4; 35 Del. Laws, c. 192, § 1; 37 Del. Laws, c. 239, § 2; Code 1935, § 6080; 43 Del. Laws, c. 269, § 8; 45 Del. Laws, c. 297, § 2; 47 Del. Laws, c. 160, § 2; 48 Del. Laws, c. 190, § 2; 19 Del. C. 1953, § 2325; 50 Del. Laws, c. 339, § 7; 52 Del. Laws, c. 45, § 1; 57 Del. Laws, c. 520, § 2; 61 Del. Laws, c. 515, § 1.;
§ 2326. Compensation for certain permanent injuries.
(a) For all permanent injuries of the following classes, the compensation to be paid regardless of the earning power of the
injured employee after the injury shall be as follows:
For the loss of a hand, 662/3 percent of wages during 220 weeks;
For the loss of an arm, 662/3 percent of wages during 250 weeks;
For the loss of a foot, 662/3 percent of wages during 160 weeks;
For the loss of a leg, 662/3 percent of wages during 250 weeks;
For the loss of 2 or more of such members, not constituting total disability, 662/3 percent of wages during the aggregate
of the period specified for each;
For the loss of a thumb, 662/3 percent of wages during 75 weeks;
For the loss of a first finger, commonly called index finger, 662/3 percent of wages during 50 weeks;
For the loss of a second finger, 662/3 percent of wages during 40 weeks;
For the loss of a third finger, 662/3 percent of wages during 30 weeks;
For the loss of a fourth finger, commonly called little finger, 662/3 percent of wages during 20 weeks;
The loss of the first phalange of the thumb or any finger shall be considered to be equal to the loss of one half of such
thumb or finger and compensation shall be for one half of the period, and compensation for the loss of one half of the first
phalange shall be for one fourth of the period;
The loss of more phalanges than 1 shall be considered as the loss of the entire finger or thumb, provided, however, that in
no case shall the amount received for more than 1 finger exceed the amount provided in this schedule for the loss of a hand;
The loss of 3 fingers or 2 fingers and a thumb of the same hand shall be considered as the loss of one half of the hand, and
compensation shall be paid for such loss for a period of 110 weeks, or compensation shall be paid for the loss of 3 fingers
or 2 fingers and a thumb of the same hand for the number of weeks stated in the above schedule for such a loss, whichever
is greater;
For the loss of a great toe, 662/3 percent of wages during 40 weeks;
For the loss of 1 of the toes, other than the great toe, 662/3 percent of wages during 15 weeks;
The loss of the first phalange of any toe shall be considered to be equal to the loss of one half of such toe, and compensation
shall
Subchapter II. Payments for Injuries or Death and Incidental Benefits
§ 2321. Minimum duration of incapacity.
Permanent injury relating to hearing or vision loss, surgical, medical and hospital services, medicines and supplies, and
funeral benefits shall be paid from the 1st day of injury. Beginning with the 4th day of incapacity, all compensation otherwise
provided by law shall be paid. If the incapacity extends to 7 days or more, including the day of injury, the employee shall
receive all compensation otherwise provided by law from the 1st day of injury.
Code 1915, § 3193h; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 2; 32 Del. Laws, c. 186, § 1; 37 Del. Laws, c. 239, § 1; Code 1935, § 6078; 43 Del. Laws, c. 269, § 6; 19 Del. C. 1953, § 2321; 49 Del. Laws, c. 429, § 1; 70 Del. Laws, c. 205, § 1; 70 Del. Laws, c. 532, § 1.;
§ 2322. Medical and other services, and supplies as furnished by employer.
(a) During the period of disability the employer shall furnish reasonable surgical, medical, dental, optometric, chiropractic
and hospital services, medicine and supplies, including repairing damage to or replacing false dentures, false eyes or eye
glasses and providing hearing aids, as and when needed, unless the employee refuses to allow them to be furnished by the employer.
(b) If the employer, upon application made to the employer, refuses to furnish the services, medicines and supplies mentioned
in subsection (a) of this section, the employee may procure the same and shall receive from the employer the reasonable cost
thereof within the above limitations.
(c) Upon application made to the Board by the injured employee or someone in the injured employee's behalf, the Board may,
at its discretion, require the employer to furnish additional services, medicines and supplies of the kind mentioned in subsection
(a) of this subsection, as and when needed, for such further period as it shall deem right and proper. The charges for such
additional services, medicines and supplies shall not exceed the rates regularly charged to other individuals for like services
and supplies, provided, however, that the Board shall at all times have jurisdiction to determine and shall determine the
character of services and supplies to be furnished.
(d) An employee, at any time after a claim for compensation is made, shall have the right, upon application to the employee's
employer, to inspect, copy and reproduce any medical records pertaining to said employee in the possession of the employee's
employer or the employee's insurance carrier. Medical records, as used in this subsection, shall include physician's reports,
hospital reports, diagnostic reports, treatment reports, X-rays and X-ray reports.
(e) The fees of medical witnesses testifying at hearings before the Industrial Accident Board in behalf of an injured employee
shall be taxed as a cost to the employer or the employer's insurance carrier in the event the injured employee receives an
award.
(f) Every insurance carrier or self-insurer shall be required to replace or renew a defective or worn out prosthesis for the
life of the injured person without such replacement or renewal constituting a new claim period.
(g) An employee shall be entitled to mileage reimbursement in an amount equal to the State specified mileage allowance rate
in effect at the time of travel, for travel to obtain:
(1) Reasonable surgical, medical, dental, optometric, chiropractic and hospital services; and
(2) Medicine and supplies, including repairing and replacing damaged dentures, false eyes or eyeglasses, and providing hearing
aids and prosthetic devices.
(h) An employer or insurance carrier may pay any health care invoice or indemnity benefit without prejudice to the employer's
or insurance carrier's right to contest the compensability of the underlying claim or the appropriateness of future payments
of health care or indemnity benefits. In order for any provision or payment of health care services to constitute a payment
without prejudice, the employer or insurance carrier shall provide to the health care provider and the employee a clear and
concise explanation of the payment, including the specific expenses that are being paid, the date on which such charges are
paid, and the following statement, which shall be conspicuously displayed on the explanation in at least 14 point type:
This claim is IN DISPUTE and payment is being made without prejudice to the Employer's right to dispute the compensability
of the workers' compensation claim generally or the Employer's obligation to pay this bill in particular.
(1) Partial payment of the uncontested portion of a partially contested health care invoice shall be considered a payment
without prejudice to the right to contest the unpaid portion of a health care invoice, provided the above notice requirements
are met.
(2) No payment without prejudice made under a reservation of rights pursuant to this subsection shall be subject to return,
recapture or offset, absent a showing that the claim for payment was fraudulent.
(3) No payment without prejudice that complies with the above is admissible as evidence to establish that the claim is compensable.
(4) No payment without prejudice that complies with the above shall extend the statute of limitations unless the claim is
otherwise determined by agreement or the Board to be compensable.
(i) Availability of vocational rehabilitation services.
(1) Statement of intent. -- The General Assembly realizes that despite the best efforts of all concerned, some injured workers
may not be able to return to their pre-injury employment and may benefit from vocational rehabilitation.
(2) To the extent assistance may be required in this regard, resources are available to employees including, but not limited
to, from the following organizations:
a. Delaware Division of Vocational Rehabilitation;
b. First State Project with Industry; and
c. One Stop Centers.
(3) Nothing in this section is intended to change the existing rights and responsibilities of injured employees or employers
regarding vocational rehabilitation services.
Code 1915, § 3193h; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 2; 32 Del. Laws, c. 186, § 1; 37 Del. Laws, c. 239, § 1; Code 1935, § 6078; 43 Del. Laws, c. 269, § 6; 46 Del. Laws, c. 27; 48 Del. Laws, c. 229; 19 Del. C. 1953, § 2322; 50 Del. Laws, c. 267, § 1; 50 Del. Laws, c. 339, § 5; 53 Del. Laws, c. 126; 61 Del. Laws, c. 505, § 1; 65 Del. Laws, c. 469, § 1; 70 Del. Laws, c. 172, § 4; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 85, § 1; 76 Del. Laws, c. 1, § 9.;
§ 2322A. Health Care Advisory Panel.
(a) The General Assembly recognizes that issues related to health care in workers' compensation require the expertise of the
medical community and other health care professionals for resolution. A Health Care Advisory Panel is hereby established.
The purpose of the Health Care Advisory Panel shall be to carry out the provisions of this chapter, with a diversity of perspectives,
on matters relating to the provision of health care to employees pursuant to this chapter.
(b) Membership; terms. -- The Health Care Advisory Panel shall consist of 17 members. All members shall be appointed by the
Governor by and with the consent of the Senate. As provided below, a majority of members shall be health care providers or
representatives of providers. Members shall be appointed for a term of up to 3 years and may be re-appointed. Terms of members
shall be staggered so that less than half of the members' terms expire in any 1 year. Members shall receive no compensation.
(c) Representation. -- The Health Care Advisory Panel shall include: 1 representative of insurance carriers providing coverage
pursuant to this chapter; 1 representative of employers; 1 representative of employees; 2 attorneys licensed to practice law,
1 who regularly represents employees and 1 who regularly represents employers in matters arising under this chapter; 3 public
members; and 9 provider members. A public member: may not be nor may ever have been certified, licensed, or registered in
any health-related field; may not be the spouse of someone certified, licensed, or registered in any health-related field;
at the time of appointment may not be a member of the immediate family of someone certified, licensed, or registered in any
health-related field; may not be employed by a company engaged in a directly health-related business; and may not have a material
financial interest in providing goods or services to persons engaged in the practice of medicine. The 9 provider members appointed
to the Health Care Advisory Panel shall include a diverse group of health care providers (or provider representatives) who
are most representative of those providing medical care to employees pursuant to this chapter. The provider members shall
include representatives nominated by the following professional societies or associations:
(1) Four representatives of the Medical Society of Delaware (including 1 in the field of primary care, 1 in the field of neurosurgery,
1 in the field of occupational medicine and 1 at large representative);
(2) One representative of the Delaware Society of Orthopaedic Surgeons;
(3) One representative of the Delaware Academy of Physical Medicine and Rehabilitation;
(4) One representative of the Delaware Healthcare Association;
(5) One representative of the Delaware Chiropractic Association; and
(6) One representative of the Delaware Physical Therapy Association.
One member may represent more than 1 category. In addition to their ability to represent the perspective of their profession,
provider members shall be selected for their ability to represent the interests of the community at large. The Department
of Labor, Office of Workers' Compensation shall provide at least 1 nonvoting staff to assist the Panel in its work.
(d) Any person appointed to fill a vacancy on the Health Care Advisory Panel shall serve for the remainder of the unexpired
term of the former member and shall be eligible for reappointment.
(e) Regular attendance is vital to the purposes of the Health Care Advisory Panel. Members shall accept the duty and obligation
to attend meetings. Repeated absences shall be grounds for removal from the Panel at the discretion of the Governor.
(f) A Chair and Vice Chair shall be elected by a majority of members of the Health Care Advisory Panel for terms of 1 year.
The Chair and/or Vice Chair may be replaced at any time by a majority vote of members of the Health Care Advisory Panel. The
Chair and Vice Chair of the Health Care Advisory Panel shall set an agenda for each meeting, shall preside at meetings, and
shall forward recommendations, opinions and other communications of the Health Care Advisory Panel to the Governor and General
Assembly.
(g) The Health Care Advisory Panel is authorized to appoint by majority vote such committees as it may deem appropriate and
to define the powers duties and responsibilities of such committees. Such committees may include persons who are not regular
members of the Health Care Advisory Panel.
(h) Order of business and schedule of meetings. -- Meetings of the Health Care Advisory Panel shall be held at least 4 times
annually and shall be scheduled by the Chair. Agendas for meetings shall be developed by the Chair and/or Vice-Chair of the
Panel. Any member wishing to include an item on the agenda has the responsibility to draft and present the agenda item to
the Chair for approval and inclusion. An agenda shall be distributed by the Office of Workers' Compensation to members at
least 14 days prior to the next meeting. Staff from Office of Workers' Compensation shall record all meeting proceedings and
prepare minutes for approval by the Health Care Advisory Panel prior to the next meeting. The Health Care Advisory Panel is
authorized to adopt by majority vote bylaws and other procedures for meetings not inconsistent with this chapter. For any
matter considered by the Health Care Advisory Panel that does not have unanimous approval, members shall be authorized to
issue minority reports. Neither the Health Care Advisory Panel nor any committee thereof shall be subject to the provisions
of Chapter 100 of Title 29.
(i) Quorum and voting. -- Administrative decisions, including the election of officers, recommendations to remove a member,
or the adoption or amendment of bylaws, shall be effective upon approval by a majority of all members of the Health Care Advisory
Panel. All other matters shall be subject to approval for by a majority of persons present at a duly constituted meeting consisting
of at least a quorum of members. A quorum of at least 9 members, at least 5 of whom shall be provider representatives referred
to in subsection (c) of this section above.
76 Del. Laws, c. 1, § 10.;
§ 2322B. Procedures and requirements for promulgation of health care payment system.
The health care payment system developed pursuant to this section shall be subject to the following procedures and requirements:
(1) The intent of the General Assembly in authorizing a health care payment system is not to establish a "push down" system,
but is instead to establish a system that eliminates outlier charges and streamlines payments by creating a presumption of
acceptability of charges implemented through a transparent process, involving relevant interested parties, that prospectively
responds to the cost of maintaining a health care practice, eliminating cost-shifting among health care service categories
and avoiding institutionalization of upward rate creep.
(2) The health care payment system shall include payment rates, instructions, guidelines, and payment guides and policies
regarding application of the payment system. When completed, the payment system shall be published on the Internet at no charge
to the user via a link from the Office of Workers' Compensation website at www.delawareworks.com/industrialaffairs/services/workerscomp
.shtml, or a successor website. The payment system shall also be made available in written form at the Office of Workers'
Compensation during regular business hours.
(3) The maximum allowable payment for health care treatment and procedures covered under this chapter shall be the lesser
of the health care provider's actual charges or the fee set by the payment system. The payment system will set fees at 90%
of the seventy-fifth percentile of actual charges within the geozip where the service or treatment is rendered, utilizing
information contained in employers' and insurer carriers' national databases. For purposes of this section, "geozip" means
an area defined by reference to United States ZIP Codes; Delaware shall consist of 1 "197 geozip" (comprised of all areas
within the State where the address has a ZIP Code beginning with the 3 digits "197" or "198"), and 1 "199 geozip" (comprised
of all areas within the State where the address has a ZIP Code beginning with the 3 digits of "199"). If a geozip does not
have the necessary number of charges and fees to calculate a valid percentile for a specific procedure, treatment, or service,
the Health Care Advisory Panel in its discretion may combine data from Delaware's 2 geozips for a specific procedure, treatment,
or service. In the event that the Health Care Advisory Panel determines that there is insufficient data to calculate a valid
percentile for a procedure, treatment or service, or that data from a commercial vendor is not sufficiently reliable to implement
a payment system for professional services for a specific procedure, treatment or service, then the Health Care Advisory Panel
may recommend an alternative method for a payment system for professional charges.
The payment system will be adjusted yearly based on percentage changes to the Consumer Price Index-Urban, U.S. City Average,
All Items, as published by the United States Bureau of Labor Statistics. After January 17, 2010, the Health Care Advisory
Panel shall review the geozip reporting system and make a recommendation concerning whether the State should operate its workers'
compensation health care payment system on a geozip basis or on a single statewide basis.
(4) Upon adoption of the health care payment system, an employer and/or insurance carrier shall pay the lesser of the rate
set forth by the payment system or the health care provider's actual charge. If an employer or insurance carrier contracts
with a provider for the purpose of providing services under this chapter, the rate negotiated in any such contract shall prevail.
(5) Whenever the health care payment system does not set a specific fee for a procedure, treatment or service in the schedule,
the amount of reimbursement shall be at 85% of actual charge as of November 1, 2008.
(6) The health care payment system shall include provisions for health care treatment and procedures performed outside of
the State of Delaware. If any procedure, treatment or service is rendered outside the State of Delaware, the amount of reimbursement
shall be the greater of:
a. The amount set forth in a workers' compensation health care payment system or fee schedule adopted by the state in which
the procedure, treatment or service is rendered, if such a schedule has been adopted; or
b. The amount that would be authorized by the payment system adopted pursuant to this chapter if the service or treatment
were performed in the geozip where the injury occurred or where the employee was principally assigned.
Charges for a procedure, treatment or service outside the State of Delaware shall be subject to the instructions, guidelines,
and payment guides and policies in the health care payment system.
(7) The health care payment system shall include separate service categories for the fields of: ambulatory surgical treatment
centers, anesthesia and related services, dental and related services, hospital care, and professional services.
(8) Hospital fees developed in the health care payment system shall be determined in accordance with the following provisions:
a. Hospital fees billed for inpatient and outpatient services provided to injured workers pursuant to this chapter shall be
reimbursed at a rate equal to 85.0% of each hospital's actual charges for such services as of October 31, 2006, subject to
adjustment as provided in this subsection. Verification that such billing is performed in compliance with this subsection
shall be provided by each hospital to the Office of Workers' Compensation within 60 days of the completion and issuance of
audited financial statements to the hospital by its independent financial auditors. Such verification shall be subject to
further review or audit by the Department of Insurance. Reasonable costs of such review or audit for purposes of this section
shall be reimbursed to the Department of Insurance by the hospital whose billing is audited.
b. On the effective date of the regulation provided for in paragraph (14) of this section, and each January thereafter, the
Department of Labor shall make an automatic adjustment to each hospital's reimbursement rates, as derived pursuant to paragraph
(8)a. of this section, for procedures, treatments or services in effect in January of that year. The amount payable to each
hospital pursuant to paragraph (8)a. of this section shall be adjusted annually by the Department of Labor in accordance with
the Consumer Price Index-Urban, U.S. City Average for Medical Care, as published by the United States Bureau of Labor Statistics.
The adjustment factor adopted by this paragraph shall be reviewed by the Health Care Advisory Panel after January 17, 2010,
and the Panel shall make a recommendation concerning the continued use the Consumer Price Index for medical care, or the adoption
of a different index for cost adjustments in fees for hospital services.
c. Services provided an emergency department of a hospital, or any other facility subject to the federal Emergency Medical
Treatment and Active Labor Act, 42 U.S.C. § 1395dd, and any emergency medical services provided in a pre-hospital setting
by ambulance attendants and/or paramedics, shall be exempt from the health care payment system and shall not be subject to
the requirement that a health care provider be certified pursuant to § 2322D of this title, requirements for preauthorization
of services, or the health care practice guidelines adopted pursuant to § 2322C of this title. Upon admission to a hospital
and discharge from an emergency department, hospital charges shall be subject to paragraph (8)a. of this section.
(9) Ambulatory Surgical Treatment Center ("ASTC") fees developed in the health care payment system shall be determined in
accordance with the following provisions:
a. Fees billed for services provided to injured workers pursuant to this chapter by an ASTC shall be reimbursed at a rate
equal to 85.0% of each ASTC's actual charges for such services as of October 31, 2006, subject to annual adjustment as provided
in this subsection. Verification that such billing is performed in compliance with this subsection shall be provided by each
ASTC to the Office of Workers' Compensation within 60 days of the completion and issuance of audited financial statements
to the ASTC by its independent financial auditors. Such verification shall be subject to further review or audit by the Department
of Insurance. Reasonable costs of such review or audit for purposes of this section shall be reimbursed to the Department
of Insurance by the ASTC whose billing is audited. The ASTC fee determination mechanism adopted pursuant to this subsection
shall apply to all services provided after the effective date of the regulation provided for in paragraph (8) of this section,
regardless of the date of injury.
b. On the effective date of the regulation provided for in paragraph (14) of this section, and each January thereafter, the
Department of Labor shall make an automatic adjustment to each ASTC's reimbursement rates, as derived pursuant to paragraph
(9)a. of this section, for procedures, treatments or services in effect in January of that year. The amount payable to each
ASTC pursuant to paragraph (9)a. of this section shall be adjusted annually by the Department of Labor in accordance with
the Consumer Price Index-Urban, U.S. City Average for Medical Care, as published by the United States Bureau of Labor Statistics.
The adjustment factor adopted by this paragraph shall be reviewed by the Health Care Advisory Panel after January 17, 2010,
and the Panel shall make a recommendation concerning the continued use the Consumer Price Index for medical care, or the adoption
of a different index for cost adjustments in fees for ASTC services.
(10) Professional service fees developed in the health care payment system shall be determined in accordance with the following
provisions:
a. The payment system for professional services shall conform to the Current Procedural Terminology ("CPT"), American Medical
Association, 515 North State Street, Chicago, Illinois, 60610, 2006, no later dates or editions.
b. Services covered by the payment system shall include evaluation and management, surgery, physician, medicine, radiology,
pathology and laboratory, chiropractic, physical therapy, and other services covered under the CPT.
c. The health care payment system shall require that services be reported with the Healthcare Common Procedural Coding System
Level II ("HCPCS Level II") or CPT codes that most comprehensively describe the services performed. Proprietary bundling edits
more restrictive than the National Correct Coding Policy Manual in Comprehensive Code Sequence for Part B Medicare Carriers,
Version 12.0, U.S. Department of Health and Human Services, Centers for Medicare and Medicare Services, 7500 Security Boulevard,
Baltimore, Maryland, 21244, 2006, no later dates or editions, shall be prohibited. Bundling edits is the process of reporting
codes so that they most comprehensively describe the services performed.
d. An allied health care professional, such as a certified registered nurse anesthetist ("CRNA"), physician assistant ("PA"),
or nurse practitioner ("NP"), shall be reimbursed at the same rate as other health care professionals when the allied health
care professional is performing, coding and billing for the same services as other health care professionals if a physician
health care provider is physically present when the service or treatment is rendered, and shall be reimbursed at 80% of the
primary health care provider's rate if a physician health care provider is not physically present when the service or treatment
is rendered.
e. Charges of an independently operated diagnostic testing facility shall be subject to the professional services and HCPCS
Level II health care payment system where applicable. An independent diagnostic testing facility is an entity independent
of a hospital or physician's office, whether a fixed location, a mobile entity, or an individual nonphysician practitioner,
in which diagnostic tests are performed by licensed or certified non-physician personnel under appropriate physician supervision.
(11) As part of the health care payment system, the Health Care Advisory Panel shall adopt and recommend a reimbursement schedule
for pathology, laboratory and radiological services. Such schedule shall be designed to result in savings of 15% from charges
prevailing in workers' compensation matters as of October 31, 2006.
(12) As part of the health care payment system, the Health Care Advisory Panel shall adopt and recommend a formulary and fee
methodology for pharmacy services, prescription drugs and other pharmaceuticals, and for durable medical equipment. Such formulary
and fee methodology shall be designed to result in savings of 15% from charges prevailing in workers' compensation matters
as of October 31, 2006.
(13) Fees for nonclinical services, such as retrieving, copying and transmitting medical reports and records, testimony by
affidavit, deposition or live testimony at any hearing or proceeding, or completion and transmission of any required report,
form or documentation, and associated regulations and procedures for the determination of and verification of containment
of fees, shall be developed and proposed by the Health Care Advisory Panel, and adopted as part of the health care payment
system. Such fees shall be revised periodically on the recommendation of the Health Care Advisory Panel to reflect changes
in the cost of providing such services. Following the adoption of the initial health care payment system, adjustments to fees
for non-clinical services shall be adopted by regulation of the Department of Labor pursuant to Chapter 101 of Title 29. The
nonclinical service fees adopted pursuant to this paragraph shall apply to all services provided after the effective date
of the regulation, regardless of the date of injury.
(14) Subject to the foregoing provisions, the health care payment system authorized by this section shall be approved and
proposed by the Health Care Advisory Panel. Thereafter, the health care payment system shall be adopted by regulation of the
Department of Labor pursuant to Chapter 101 of Title 29. Such regulation shall be promulgated and adopted within 180 days
of the first meeting of the Health Care Advisory Panel. One year after the effective date of the regulation and each January
thereafter, the Department of Labor shall make an automatic adjustment to the maximum payment for a procedure, treatment or
service in effect in January of that year. Except with respect to hospital charges that shall be adjusted in accordance with
paragraph (8) of this section, the Department of Labor shall increase or decrease the maximum payment by the percentage change
of increase or decrease in the Consumer Product Index -- Urban, U.S. City Average, All Items, as published by the United States
Bureau of Labor Statistics. The adjustment provided for in this section shall not be applied to fees for nonclinical services
and supplies.
76 Del. Laws, c. 1, § 11; 76 Del. Laws, c. 143, §§ 1, 2; 77 Del. Laws, c. 94, §§ 1-4.;
§ 2322C. Development of health care practice guidelines.
Health care practice guidelines shall be developed in accordance with the following provisions:
(1) The Health Care Advisory Panel shall adopt and recommend a coordinated set of health care practice guidelines and associated
procedures to guide utilization of health care treatments in workers' compensation, including but not limited to care provided
for the treatment of employees by or under the supervision of a licensed health care provider, prescription drug utilization,
inpatient hospitalization and length of stay, diagnostic testing, physical therapy, chiropractic care and palliative care.
The health care practice guidelines shall apply to all treatments provided after the effective date of the regulation referred
to in paragraph (7) of this section, regardless of the date of injury.
(2) The guidelines shall be, to the extent permitted by the most current medical science or other applicable science, based
on well-documented scientific research concerning efficacious treatment for injuries and occupational disease. To the extent
that well-documented scientific research concerning efficacious treatment is not available at the time of adoption or revision
of the guidelines, the guidelines shall be based upon the best available information concerning national consensus regarding
best health care practices in the relevant health care community.
(3) The guidelines shall, to the extent practical consistent with this section, address treatment of those physical conditions
which occur with the greatest frequency (for services compensable under this chapter), or which require the most expensive
treatments (for services compensable under this chapter), based upon currently available Delaware data.
(4) The guidelines shall contain a section guiding the utilization of prescription medications.
(5) The original health care practice guidelines may be based upon an existing model, already in use, to guide treatment of
medical care for workers' compensation. Additional guidelines may be initially adopted, pursuant to the same criteria, to
obtain coverage of areas or issues of treatment not included in other adopted guidelines. In no event shall multiple guidelines
covering the same aspects of the same medical condition be simultaneously in force.
(6) Services rendered by any health care provider certified to provide treatment services for employees shall be presumed,
in the absence of contrary evidence, to be reasonable and necessary if such services conform to the most current version of
the Delaware health care practice guidelines. Services provided by health care providers that are not certified shall not
be presumed reasonable and necessary unless such services are preauthorized by the employer or insurance carrier, subject
to the exception set forth in § 2322D(b) of this title. It is intended that these guidelines will be produced by Health Care
Advisory Panel subcommittees in coordination with a qualified contractor with expertise in establishing treatment guidelines,
developing the rules that define the use of such guidelines, and disseminating the guidelines in a manner that streamlines
the delivery of health care.
(7) Subject to the foregoing provisions, after receiving the approval and recommendation of the Health Care Advisory Panel,
the guidelines shall be adopted by regulation of the Department of Labor pursuant to Chapter 101 of Title 29. Such regulations
shall be adopted and effective not later than 1 year after the first meeting of the Health Care Advisory Panel. Health care
practice guidelines shall be subject to review and revision by the Health Care Advisory Panel on at least an annual basis.
It is the intent of the General Assembly that the development of health care guidelines will be directed by a predominantly
medical or other health professional panel, recognizing that health care professionals are best equipped to determine appropriate
treatment. It is further intended that subcommittees comprised of representatives from appropriate specialties will make comment
and offer recommendations to the Health Care Advisory Panel.
76 Del. Laws, c. 1, § 12.;
§ 2322D. Certification of health care providers.
(a)(1) Certification shall be required for a health care provider to provide treatment to an employee, pursuant to this chapter,
without the requirement that the health care provider first preauthorize each health care procedure, office visit or health
care service to be provided to the employee with the employer or insurance carrier. The provisions of this subsection shall
apply to all treatments to employees provided after the effective date of the rule provided by subsection (c) of this section,
regardless of the date of injury. A health care provider shall be certified only upon meeting the following minimum certification
requirements:
a. Have a current license to practice, as applicable;
b. Meet other general certification requirements for the specific provider type;
c. Possess a current and valid Drug Enforcement Agency ("DEA") registration, unless not required by the provider's discipline
and scope of practice;
d. Have no previous involuntary termination from participation in Medicare, Medicaid or the Delaware workers' compensation
system, which shall be determined to be inconsistent with certification under regulations adopted pursuant to subsection (c)
of this section;
e. Have no felony convictions in any jurisdiction, under a federal-controlled substance act or for an act involving dishonesty,
fraud or misrepresentation, which shall be determined to be inconsistent with certification under regulations adopted pursuant
to subsection (c) of this section; and
f. Provide proof of adequate, current professional malpractice and liability insurance.
(2) The certification rules shall require that any health care provider to be certified agree to the following terms and conditions:
a. Compliance with Delaware workers' compensation laws and rules;
b. Maintenance of acceptable malpractice coverage;
c. Completion of State-approved continuing education courses in workers' compensation care every 2 years;
d. Practice in a best-practices environment, complying with practice guidelines and Utilization Review Accreditation Council
("URAC") utilization review determinations;
e. Agreement to bill only for services and items performed or provided, and medically necessary, cost-effective and related
to the claim or allowed condition;
f. Agreement to inform an employee of that employee's liability for payment of noncovered services prior to delivery;
g. Acceptance of reimbursement and not unbundled charges into separate procedure codes when a single procedure code is more
appropriate; and
h. Agreement not to balance bill any employee or employer. Employees shall not be required to contribute a copayment or meet
any deductibles.
(b) Notwithstanding the provisions of this section, any health care provider may provide services during 1 office visit, or
other single instance of treatment, without first having obtained prior authorization, and receive reimbursement for reasonable
and necessary services directly related to the employee's injury or condition at the health care provider's usual and customary
fee, or the maximum allowable fee pursuant to the workers' compensation health care payment system adopted pursuant to § 2322B
of this title, whichever is less. The provisions of this subsection are limited to the occasion of the employee's first contact
with any health care provider for treatment of the injury, and further limited to instances when the health care provider
believes in good faith, after inquiry, that the injury or occupational disease was suffered in the course of the employee's
employment. The provisions of this subsection shall apply to all treatments to injured employees provided after the effective
date of the rule provided by subsection (c) of this section, regardless of the date of injury.
(c) Subject to the foregoing provisions, complete rules and regulations relating to provider certification shall be approved
and proposed by the Health Care Advisory Panel. Thereafter, such regulations shall be adopted by regulation of the Department
of Labor pursuant to Chapter 101 of Title 29. Such regulations shall be adopted and effective not later than 1 year after
the first meeting of the Health Care Advisory Panel.
76 Del. Laws, c. 1, § 13; 70 Del. Laws, c. 186, § 1.;
§ 2322E. Development of consistent forms for health care providers.
(a) The Health Care Advisory Panel is authorized and directed to approve and propose standard forms for the provision of health
care services pursuant to this chapter. Upon such recommendation, such forms and provisions governing their use shall be adopted
by regulation of the Department of Labor, pursuant to Chapter 101 of Title 29. Such regulations shall be adopted and effective
not later than 180 days after the first meeting of the Health Care Advisory Panel. Forms authorized by this section shall
provide for prompt initial report of an employee's condition upon the initial occurrence of injury treated pursuant to this
chapter and upon reasonable intervals thereafter to report the conditions and limitations of an employee. At a minimum the
initial reporting form shall provide for an outline of the physical capabilities of the employee in order to enable and encourage
the injured employee to return to work at the highest level of capability.
(b) The health care provider most responsible for the treatment of the employee's work-related injury shall complete and submit,
as expeditiously as possible and not later than 10 days after the date of first evaluation or treatment, a report of employee
condition and limitations, on a form adopted for that purpose pursuant to this section, and shall expeditiously provide copies
of the report of employee condition and limitations to the employee, the employer and the employer's insurance carrier, if
applicable. In the event that an employee is treated and released from the emergency department of a hospital, the health
care provider most responsible for follow up care, if applicable, or the emergency room attending physician, shall provide
the report of employee condition and limitations to the employee upon release, and the employee shall be responsible for provision
of the report to the employer and the employer's insurance carrier, if applicable, within the time period provided by the
rules adopted pursuant to this section.
(c) Every health care provider shall prepare supplemental reports of employee condition and limitations on forms prescribed
pursuant to this section, and shall expeditiously provide copies of the report of employee condition and limitations to the
employee, the employer and the employer's insurance carrier, if applicable.
(d) Within 14 days of receiving a notice of injury, an employer shall provide to the health care provider and the employer's
insurance carrier, if applicable, an outline of modified-duty jobs which may be available to the employee. The health care
provider portion of the employer's modified duty availability report must be signed and returned by the health care provider
within 14 days of the next date of service after receipt of the form from the employer, but not later than 21 days from the
health care provider's receipt of such form.
(e) Fees for completion, copying and transmission of the forms shall be developed by the Health Care Advisory Panel. The employer
or the employer's insurance carrier shall be liable for payment of the fee for all such reports of employee condition and
limitations, provided however, that the employer or insurance carrier shall not be liable for any such reports, requested
by an employee more frequently than once during each 3-month period.
76 Del. Laws, c. 1, § 14; 77 Del. Laws, c. 94, §§ 5, 6.;
§ 2322F. Billing and payment for health care services.
(a) Charges for medical evaluation, treatment and therapy, including all drugs, supplies, tests and associated chargeable
items and events, shall be submitted to the employer or insurance carrier along with a bill or invoice for such charges, accompanied
by records or notes, concerning the treatment or services submitted for payment, documenting the employee's condition and
the appropriateness of the evaluation, treatment or therapy, with reference to the health care practice guidelines adopted
pursuant to § 2322C of this title, or documenting the preauthorization of such evaluation, treatment or therapy. The initial
copy of the supporting notes or records shall be produced without separate or additional charge to the employer, insurance
carrier or employee.
(b) Charges for hospital services and items supplied by a hospital, including all drugs, supplies, tests and associated chargeable
items and events, shall be submitted to the employer or insurance carrier along with a bill or invoice which shall be documented
in a nationally recognized uniform billing code format, in sufficient detail to document the services or items provided, and
any preauthorization of the services and items shall also be documented. The initial copy of the supporting medical notes
or records shall be produced without separate or additional charge to the employer, insurance carrier or employee. Payment
for hospital services, including payment for invoices rendered for emergency department services, shall be made within 30
days of the submission of a "clean claim" accompanied by notes documenting the employee's condition and the appropriateness
of the evaluation, treatment or therapy.
(c) Preauthorized evaluations, treatments or therapy shall be paid at the agreed fee within 30 days of the date of submission
of the invoice, unless the compliance with the preauthorization is contested, in good faith, pursuant to the utilization review
system set forth in subsection (j) of this section below.
(d) Treatments, evaluations and therapy provided by a certified health care provider shall be paid within 30 days of receipt
of the health care provider's bill or invoice together with records or notes as provided in this section, unless compliance
with the health care payment system or practice guidelines adopted pursuant to § 2322B or § 2322C is contested, in good faith,
to the utilization review system set forth in subsection (j) of this section below.
(e) Denial of payment for health care services provided pursuant to this chapter, whether in whole or in part, shall be accompanied
with written explanation of reason for denial.
(f) In the event that a portion of a health care invoice is contested pursuant to this section, the uncontested portion shall
be paid without prejudice to the right to contest the remainder. The time limits set forth in this section shall apply to
payment of all uncontested portions of health care payments.
(g) If, following a hearing, the Industrial Accident Board determines that an employer, an insurance carrier or a health care
provider failed in its responsibilities under § 2322B, § 2322C, § 2322D, § 2322E or § 2322F of this title, it shall assess
a fine of not less than $1,000 nor more than $5,000 for violations of said sections. Such fines shall be payable to the Workers'
Compensation Fund.
(h) Prompt pay required for nonpreauthorized care. -- An employer or insurance carrier shall be required to pay a health care
invoice within 30 days of receipt of the invoice as long as the claim contains substantially all the required data elements
necessary to adjudicate the invoice, unless the invoice is contested in good faith. If the contested invoice pertains to an
acknowledged compensable claim and the denial is based upon compliance with the health care payment system and/or health care
practice guidelines, it shall be referred to utilization review. Any such referral to utilization review shall be made within
15 days of denial. Unpaid invoices shall incur interest at a rate of 1% per month payable to the provider. A provider shall
not hold an employee liable for costs related to nondisputed services for a compensable injury and shall not bill or attempt
to recover from the employee the difference between the provider's charge and the amount paid by the employer or insurance
carrier on a compensable injury.
(i) A health care provider referring an employee to, or encouraging an employee to utilize, any inpatient or outpatient facility
or any medical or therapeutic practice, laboratory, diagnostic testing or radiological imaging machinery, equipment, practice
or facility shall disclose to the employee any financial interest the health care provider has in such inpatient or outpatient
facility, any medical or therapeutic practice, laboratory, diagnostic testing or radiological imaging machinery, equipment,
practice or facility. The requirements of this subsection may be met by the prominent placement of a sign or signs in such
health care provider's office identifying such affiliated equipment, practices or facilities.
(j) Utilization review. -- The Health Care Advisory Panel shall develop a utilization review program. The intent is to provide
reference for employers, insurance carriers, and health care providers for evaluation of health care and charges. The intended
purpose of utilization review services shall be the prompt resolution of issues related to treatment and/or compliance with
the health care payment system or practice guidelines for those claims which have been acknowledged to be compensable. An
employer or insurance carrier may engage in utilization review to evaluate the quality, reasonableness and/or necessity of
proposed or provided health care services for acknowledged compensable claims. Any person conducting a utilization review
program for workers' compensation shall be required to contract with the Office of Workers' Compensation once every 2 years
and certify compliance with Workers' Compensation Utilization Management Standards or Health Utilization Management Standards
of Utilization Review Accreditation Council ("URAC") sufficient to achieve URAC accreditation or submit evidence of accreditation
by URAC. If a party disagrees with the findings following utilization review, a petition may be filed with the Industrial
Accident Board for de novo review. Complete rules and regulations relating to utilization review shall be approved and recommended
by the Health Care Advisory Panel. Thereafter, such rules shall be adopted by regulation of the Department of Labor pursuant
to Chapter 101 of Title 29. Such regulations shall be adopted and effective not later than 1 year after the first meeting
of the Health Care Advisory Panel.
(k) Coordination of health care payments. --
(1) Upon notification to an employer that an employee is exercising that employee's rights under § 2304 of this title with
respect to an injury or condition, the employer shall be exclusively responsible for treatment of that injury or condition
to the extent that the employer is obliged to provide treatment under this chapter.
(2) An employee, as part of a notification that an employee will exercise rights under § 2304 of this title, shall notify
the employer of all health insurance benefits that could compensate the employee for treatment of the injury or condition
in question in the absence of coverage under this chapter. Such notification to the employer is intended to facilitate the
notice provided for in paragraph (k)(4) of this section; the failure of an employee to provide such notice shall not waive
or defeat any rights the employee may have under this chapter.
(3) An employee whose health care treatment for an injury or condition is being paid for pursuant to this chapter shall not
be entitled to seek compensation from any other health insurance carrier for the same treatment. A health care provider who
is being paid for treating an injury or condition pursuant to this chapter shall not seek compensation from any other health
insurance carrier for the same treatment.
(4) At any time that a final determination is made that an employee is not entitled to health care treatment pursuant to this
chapter, the employer shall notify any health insurance carrier of which it is aware pursuant to paragraph (k)(2) of this
section of such a final determination.
(5) Notwithstanding any other provision of this chapter, if a final determination is made that an employee is not entitled
to health care treatment pursuant to this chapter, the employee and/or the health care provider who provided said treatment
may seek payment for such treatment from a health insurance carrier from which the employee had coverage applicable at the
time of the injury or condition.
(6) Any time restrictions imposed upon an employee with respect to making claims against that employee's health insurance
coverage for an injury or condition for which that employee initially sought treatment under this chapter shall be tolled
until notification of the health insurance carrier under paragraph (k)(4) of this section.
(7) No requirements for preauthorization of treatment in any health insurance policy shall be the basis for denying payment
of a claim submitted under paragraph (k)(5) of this section.
(8) With respect to claims submitted by an employee pursuant to paragraph (k)(5) of this section for treatment provided by
a health care provider that had a contract with the health insurance carrier at the time of the treatment, reimbursement shall
be at the contract rate.
(9) With respect to claims submitted by an employee pursuant to paragraph (k)(5) of this section for treatment provided by
a health care provider that did not have a contract with the health insurance carrier at the time of the treatment, reimbursement
shall be at the health insurance carrier's average contract rate for the same treatment with health care providers with whom
it does have a contract.
(10) All claims submitted pursuant to paragraph (k)(5) of this section shall be entitled to treatment under Insurance Department
Regulation 1310 [18 Del. Code Regs. § 1310] or any successor regulation relating to the prompt payment of health care claims
by health insurance carriers.
(11) A health insurance carrier may deny payment of claims submitted under paragraph (k)(5) of this section for health care
that it determines was not reasonable or necessary. However, an employee shall have the right to immediate appeal to an Independent
Utilization Review organization under § 6416 of Title 18 for all such denials of treatment, with the cost of such appeal being
borne by the health insurance carrier.
(12) A health care provider may not balance bill an employee for treatment for which the health care provider has been compensated
under paragraph (k)(8) or (9) of this section.
(l) Balance billing prohibited. --
(1) Any health care provider rendering services under this chapter shall be prohibited from billing or invoicing an employee,
employer or insurance carrier for charges or expenses other than those authorized by this chapter and the health care payment
system provided for herein. No health care provider rendering treatment or services under this chapter shall seek payment
for charges from an employee except as authorized by this section.
(2) Billing procedures where compensability under this chapter is contested.
a. A provider may seek payment of the actual charges from the employee if the employer or insurance carrier notifies the provider
that it does not consider the illness or injury to be compensable. If an employer notifies a provider that it will pay only
a portion of a bill, the provider may seek payment of the unpaid portion from the employee up to the lesser of the actual
charge, the negotiated rate, or the rate authorized by the payment system.
b. If an employee informs the health care provider that a claim is on file at the Department, the provider shall cease all
efforts to collect payment from the employee.
c. While a claim concerning compensability is pending with the Department, a provider may notify an employee that the employee
will be responsible for payment of unpaid invoices when the claim has been determined not to be compensable and the provider
is able to resume collection efforts. Any such notice or reminder made under this subsection shall not be disclosed or otherwise
provided to any credit agency. The provider may request information about the Department claim, and if the employee fails
to respond or provide the information within 90 days, the provider shall be entitled to resume collection efforts directly
and the employee may be determined liable for invoices as otherwise provided by law.
(3) Upon final award or settlement, a provider may resume efforts to collect payment from the employee and the employee shall
be responsible for payment of any outstanding bills without regard to this section and as otherwise provided or authorized
by law. If the service is found compensable, the provider shall not require a payment rate, excluding interest, greater than
the lesser of the actual charge or payment level set by the payment system. The employee shall be responsible for payment
for services found not covered or compensable unless agreed otherwise by the provider and employee. Services not covered or
not compensable shall not be subject to the payment system.
76 Del. Laws, c. 1, § 15; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 94, §§ 7, 8.;
§ 2323. Selection of physician, surgeon, dentist, optometrist or chiropractor by employee.
Any employee who alleges an industrial injury shall have the right to employ a physician, surgeon, dentist, optometrist or
chiropractor of the employee's own choosing. Notice of the employee's intention to employ medical aid as aforesaid shall be
given to the employee's employer or its insurance carrier or to the Board. Notice that medical aid was employed as aforesaid
shall be given within 30 days thereafter to the employer or its insurance carrier in writing. If the alleged injury is subsequently
held to be compensable, the employer shall be liable for the reasonable cost of the services of any physician, surgeon, dentist,
optometrist or chiropractor whose employment was utilized by the employee provided notice of said employment was given to
the employer or its insurance carrier.
Code 1915, § 3193h; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 2; 32 Del. Laws, c. 186, § 1; Code 1935, § 6078; 44 Del. Laws, c. 201; 19 Del. C. 1953, § 2323; 50 Del. Laws, c. 267, § 2; 53 Del. Laws, c. 126, § 3; 55 Del. Laws, c. 83, § 2; 70 Del. Laws, c. 172, § 4; 70 Del. Laws, c. 186, § 1.;
§ 2324. Compensation for total disability.
For injuries resulting in total disability occurring after July 1, 1975, the compensation to be paid during the continuance
of total disability shall be 662/3% of the wages of the injured employee, as defined by this chapter, but the compensation
shall not be more than 662/3% of the average weekly wage per week as announced by the Secretary of the Department of Labor
for the last calendar year for which a determination of the average weekly wage has been made, nor less than 222/9% of the
average weekly wage per week. If at the time of the injury the employee receives wages of less than 222/9% of the average
weekly wage per week, then the employee shall receive the full amount of such wages per week, as compensation. Nothing in
this section shall require the payment of compensation after disability ceases.
Code 1915, § 3193j; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 3; 32 Del. Laws, c. 186, § 2; 35 Del. Laws, c. 192, § 1; 37 Del. Laws, c. 239, § 2; Code 1935, § 6080; 43 Del. Laws, c. 269, § 8; 45 Del. Laws, c. 297, § 1; 46 Del. Laws, c. 29; 47 Del. Laws, c. 160, § 1; 48 Del. Laws, c. 190, § 1; 19 Del. C. 1953, § 2324; 50 Del. Laws, c. 339, § 6; 50 Del. Laws, c. 465, § 2; 52 Del. Laws, c. 27; 57 Del. Laws, c. 520, § 1; 59 Del. Laws, c. 454, § 10; 70 Del. Laws, c. 172, § 4; 70 Del. Laws, c. 186, § 1.;
§ 2325. Compensation during partial disability.
For injuries resulting in partial disability for work, except the particular cases mentioned in subsections (a)-(g) of § 2326
of this title, the compensation to be paid shall be 662/3 percent of the difference between the wages received by the injured
employee before the injury and the earning power of the employee thereafter; but such compensation shall not be more than
662/3% of the average weekly wage per week as announced by the Secretary of Labor for the last calendar year for which a determination
of the average weekly wage has been made. This compensation shall be paid during the period of such partial disability for
work, not, however, beyond 300 weeks. In construing the words "earning power of the employee thereafter" as those words appear
in this section, the Board shall take into consideration the value of gratuities, board, lodging and similar advantages received
by the employee in subsequent employment.
Code 1915, §§ 139A, 3193j, 3193tt; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 3; 32 Del. Laws, c. 186, §§ 2, 4; 35 Del. Laws, c. 192, § 1; 37 Del. Laws, c. 239, § 2; Code 1935, § 6080; 43 Del. Laws, c. 269, § 8; 45 Del. Laws, c. 297, § 2; 47 Del. Laws, c. 160, § 2; 48 Del. Laws, c. 190, § 2; 19 Del. C. 1953, § 2325; 50 Del. Laws, c. 339, § 7; 52 Del. Laws, c. 45, § 1; 57 Del. Laws, c. 520, § 2; 61 Del. Laws, c. 515, § 1.;
§ 2326. Compensation for certain permanent injuries.
(a) For all permanent injuries of the following classes, the compensation to be paid regardless of the earning power of the
injured employee after the injury shall be as follows:
For the loss of a hand, 662/3 percent of wages during 220 weeks;
For the loss of an arm, 662/3 percent of wages during 250 weeks;
For the loss of a foot, 662/3 percent of wages during 160 weeks;
For the loss of a leg, 662/3 percent of wages during 250 weeks;
For the loss of 2 or more of such members, not constituting total disability, 662/3 percent of wages during the aggregate
of the period specified for each;
For the loss of a thumb, 662/3 percent of wages during 75 weeks;
For the loss of a first finger, commonly called index finger, 662/3 percent of wages during 50 weeks;
For the loss of a second finger, 662/3 percent of wages during 40 weeks;
For the loss of a third finger, 662/3 percent of wages during 30 weeks;
For the loss of a fourth finger, commonly called little finger, 662/3 percent of wages during 20 weeks;
The loss of the first phalange of the thumb or any finger shall be considered to be equal to the loss of one half of such
thumb or finger and compensation shall be for one half of the period, and compensation for the loss of one half of the first
phalange shall be for one fourth of the period;
The loss of more phalanges than 1 shall be considered as the loss of the entire finger or thumb, provided, however, that in
no case shall the amount received for more than 1 finger exceed the amount provided in this schedule for the loss of a hand;
The loss of 3 fingers or 2 fingers and a thumb of the same hand shall be considered as the loss of one half of the hand, and
compensation shall be paid for such loss for a period of 110 weeks, or compensation shall be paid for the loss of 3 fingers
or 2 fingers and a thumb of the same hand for the number of weeks stated in the above schedule for such a loss, whichever
is greater;
For the loss of a great toe, 662/3 percent of wages during 40 weeks;
For the loss of 1 of the toes, other than the great toe, 662/3 percent of wages during 15 weeks;
The loss of the first phalange of any toe shall be considered to be equal to the loss of one half of such toe, and compensation
shall
