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PROPOSED RULEMAKING

[34 PA. CODE CH. 123]

Qualifications for Vocational Experts

[35 Pa.B. 3820]

   The Department of Labor and Industry (Department), Bureau of Workers' Compensation (Bureau), proposes to amend Chapter 123 (relating to general provisions--Part II) to read as set forth in Annex A. The proposed rulemaking provides guidance regarding the act of December 23, 2003 (P. L. 371, No. 53) (Act 53), which amended the Workers' Compensation Act (act) (77 P. S. §§ 1--1041.4 and 2501--2506), and implements Act 53. Specifically, Act 53 contains amendments to section 306(b) of the act (77 P. S. § 512(2)). The Department also proposes to delete § 123.201a (relating to effect of Act 53 regarding qualifications of vocational experts--statement of policy).

Statutory Authority

   This rulemaking is proposed under the authority in sections 401.1 and 435 of the act (77 P. S. §§ 710 and 991). Additionally, section 306(b) of the act specifically authorizes the Department to promulgate regulations establishing the minimum qualifications for vocational experts.

Background

   On December 23, 2003, Governor Edward G. Rendell signed Act 53 into law. Act 53 amended section 306(b)(2) of the act. Before its amendment, section 306(b)(2) of the act provided a means for insurers to assess an employee's earning power through an interview ''by an expert approved by the department and selected by the insurer.'' The passage of Act 53 has eliminated the requirement that the Department approve these experts. Instead, Act 53 permits insurers to select an expert ''who meets theminimum qualifications established by the Department through regulation.''

   Act 53 further amended section 306(b)(2) of the act by providing that vocational experts ''shall comply with the Code of Professional Ethics for Rehabilitation Counselors pertaining to the conduct of expert witnesses.'' Act 53 also added section 306(b)(2.1) (77 P. S. § 512(b)(2.1)) of the act, which provides that an insurer must disclose to the employee prior to his referral to an earning power assessment interview, any financial interest that the insurer has in the person or entity that will conduct the earning power assessment interview.

Purpose

   This proposed rulemaking implements Act 53. It provides guidance to Bureau staff, workers' compensation insurance carriers, self-insured employers, employees, workers' compensation judges, workers' compensation practitioners and other interested parties concerning the qualifications and role of vocational experts in workers' compensation proceedings under section 306(b) of the act and section 449 of the act (77 P. S. § 1000.5). Other than in instances when a workers' compensation judge has determined that a vocational expert or insurer has failed to comply with §§ 123.204 and 123.205 (relating to conduct of expert witness; and financial interest disclosure), this proposed rulemaking is not intended to restrict or limit the authority that workers' compensation judges currently possess.

Stakeholder Meeting

   On June 11, 2004, the Department held a stakeholder meeting regarding the Act 53 amendments. Testimony was received from Irwin Aronson and David Wildeman, representing the AFL-CIO; and Terry Leslie, representing the Pennsylvania Association of Rehabilitation Professionals. In addition, the Department received written comments from the Pennsylvania Association of Rehabilitative Professionals Administrative Services, the Pennsylvania Trial Lawyers Association, The Insurance Federation of Pennsylvania Inc., CEC Associates, Inc. and Senator Noah W. Wenger. The Department has reviewed and considered all comments received.

Summary of Proposed Rulemaking

   The minimum qualifications set forth in this proposed rulemaking are the minimum qualifications specified in Act 53.

§ 123.201. Purpose.

   The amendments to this section reflect the passage of Act 53 and clarify that Act 53 no longer requires Departmental approval of vocational experts that wish to conduct earning power assessment interviews.

§ 123.201a.  Effect of Act 53 regarding qualifications of vocational experts--statement of policy.

   The statement of policy is proposed to be deleted.

§ 123.201b. Definitions.

   This new section defines the terms ''financial interest'' and ''insurer.'' The definition of ''financial interest'' is necessary to implement Act 53's financial interest disclosure requirements under section 306(b)(2.1) of the act. The definition of ''insurer'' is necessary to explain the scope of the disclosure requirements under § 123.205. A ''financial interest'' is an interest equated with money or its equivalent, and includes any of the following: an ownership interest in the entity which employs the vocational expert; a present or former employment relationship between the vocational expert and the insurer making the referral; a managerial, fiduciary or controlling interest in the vocational expert or entity employing the vocational expert; or a contractual or referral arrangement that would require or allow the insurer to provide compensation or other consideration based upon the vocational expert's opinion or outcome of the vocational expert's earning power assessment interview.

   An insurer is any of the following: a workers' compensation insurance carrier; the State Workers' Insurance Fund; an employer authorized by the Department to self-insure its workers' compensation liability under section 305 of the act (77 P. S. § 501); or a group of employers authorized by the Department to act as a self-insurance fund under section 802 of the act (77 P. S. § 1036.2).

§ 123.202.  Qualifications.

   This section provides that individuals, who have previously performed as vocational experts in workers' compensation proceedings prior to the promulgation of this proposed rulemaking, remain able to perform as vocational experts under the previous qualification standards in this section. Further, these individuals are approved to conduct earning power assessment interviews under section 449 of the act.

§ 123.202a.  Qualifications for vocational experts under Act 53 of 2003.

   This proposed rulemaking defines the minimum qualifications for individuals who have not previously performed as vocational experts prior to the effective date of the adoption of this proposed rulemaking. Individuals who have not performed as vocational experts prior to the adoption of this proposed rulemaking shall satisfy new minimum qualifications to be a vocational expert under the act. Specifically, these individuals must possess a current license in good standing as a licensed professional counselor or hold a Bachelor's or postgraduate degree in rehabilitation or a related counseling field and: 1) be certified by a Nationally recognized professional organization; or 2) have 1 year's experience in vocational analysis, evaluation and testing, placement of individuals with disabilities and analyzing labor market information and occupational trends. The proposed amendments to the minimum qualifications are intended to more accurately reflect the knowledge and skill required to provide quality vocational expert services under the act. Further, these individuals are approved to conduct earning power assessment interviews under section 449 of the act.

§ 123.203.  Role of compensation judges.

   This section provides that the workers' compensation judge will determine whether a vocational expert meets the minimum requirements under section 306(b) of the act. Workers' compensation judges are empowered to make determinations on a vocational expert's bias and objectivity. However, if the vocational expert has not complied with § 123.204 or the insurer has not complied with the requirements of § 123.205, the workers' compensation judge is not permitted to consider the results of the earning power assessment interview.

§ 123.204.  Conduct of expert witness.

   This provision implements Act 53's requirement that a vocational expert comply with the Code of Professional Ethics for Rehabilitation Counselors (Code). The Department intends that the standards it has developed are the only criteria required for compliance with the Code. This section provides that a vocational expert is required to disclose to the claimant the role or limits of their relationship. Moreover, the provision states that the vocational expert must generate written documentation, in the form of case notes or a report, of the vocational expert's involvement in the litigation and conclusions from the earning power assessment interview.

§ 123.205.  Financial interest disclosure.

   Under section 306(b)(2.1) of the act, if an insurer intends to refer an employee for an earning power assessment interview to a person or entity with whom the insurer has a financial interest, the insurer must disclose that financial interest to the employee prior to the referral. However, this provision further provides that the mere payment of the cost of a vocational interview will not, of itself, be deemed a financial interest requiring disclosure. For the purposes of this section, a third-party administrator or other entity that performs services for an insurer is also considered an insurer.

Affected Persons

   The persons affected by this proposed rulemaking are employees, self-insured employers, workers' compensation insurance carriers, workers' compensation judges, workers' compensation practitioners and individuals who wish to serve as vocational experts under the act.

Fiscal Impact

   There is no significant fiscal impact associated with this proposed rulemaking.

Reporting, Recordkeeping and Paperwork Requirements

   The Department does not anticipate any changes in existing reporting, recordkeeping or other paperwork requirements.

Effective Date

   This proposed rulemaking will take effect upon final-form publication in the Pennsylvania Bulletin.

Sunset Date

   A sunset date is not appropriate for these regulations. However, the Department will continue to monitor the impact and effectiveness of the regulations.

Public Comment and Contact Person

   Interested parties should submit written comments, recommendations or objections to the proposed rulemaking to Eileen K. Wunsch, Chief, Health Care Services Division, Bureau of Workers' Compensation, P. O. Box 15121, Harrisburg, PA 17105 within 30 days of the publication of the proposed rulemaking in the Pennsylvania Bulletin. The proposed rulemaking will also be available on the Department's website at www.dli.state.pa.us. Written comments received by the Department may be made available to the public.

Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on June 27, 2005, the Department submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate Committee on Labor and Industry and the House Labor Relations Committee. A copy of this material is available to the public upon request.

   Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objec-tions to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Department, the General Assembly and the Governor of comments, recommendations or objections raised.

STEPHEN M. SCHMERIN,   
Secretary

   Fiscal Note: 12-68. No fiscal impact; (8) recommends adoption.

Annex A

TITLE 34.  LABOR AND INDUSTRY

PART VIII.  BUREAU OF WORKERS' COMPENSATION

CHAPTER 123.  GENERAL PROVISIONS--PART II

Subchapter C.  QUALIFICATIONS FOR VOCATIONAL EXPERTS [APPROVED BY THE DEPARTMENT]

§ 123.201.  Purpose.

   This subchapter implements and interprets provisions of the act which [require] permit the Department to [approve] establish qualifications for vocational experts who will conduct earning power assessment interviews under sections 306(b)[(2)] and 449 of the act (77 P. S. §§ 512[(b)](2) and 1000.5). [The experts contemplated by this subchapter are vocational evaluators.] The act's requirements for compliance with the Code of Professional Ethics for Rehabilitation Counselors and financial interest disclosure are also contained in this subchapter.

§ 123.201a. [Effect of Act 53 regarding qualifications of vocational experts--statement of policy] (Reserved).

   [(a)  The Department adopts this section so that all parties will have a clear understanding of their rights and obligations under section 306(b) of the act (77 P. S. § 512). This does not constitute a rule or regulation and is temporary. The Department intends to promulgate regulations on this topic.

   (b)  The minimum qualifications in § 123.202 (relating to qualifications) are the minimum qualifications established by the Department for vocational experts as specified in Act 53 of 2003 (P. L. 371, No. 53)(Act 53) which amended section 306(b) of the act, effective December 23, 2003.]

§ 123.201b.  Definitions.

   The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly states otherwise:

   Financial interest--An interest equated with money or its equivalent, and includes any of the following:

   (i)  An ownership interest in the entity which employs the vocational expert.

   (ii)  A present or former employment relationship between the vocational expert and the insurer making the referral.

   (iii)  A managerial, fiduciary or controlling interest in the vocational expert or entity employing the vocational expert.

   (iv)  A contractual or referral arrangement that would require or allow the insurer to provide compensation or other consideration based upon the vocational expert's opinion or outcome of the vocational expert's earning power assessment interview.

   Insurer--An insurer is any of the following:

   (i)  A workers' compensation insurance carrier.

   (ii)  The State Workers' Insurance Fund of the Department.

   (iii)  An employer authorized by the Department to self-insure its workers' compensation liability under section 305 of the act (77 P. S. § 501).

   (iv)  A group of employers authorized by the Department to act as a self-insurance fund under section 802 of the act (77 P. S. § 1036.2).

§ 123.202.  Qualifications for current vocational experts under Act 57 of 1996.

   (a)  [To be an expert approved by the Department for the purpose of conducting] This section applies to individuals who before ______ (Editor's Note: The blank refers to the effective date of adoption of this proposed rulemaking.), conducted earning power assessment interviews[, the individual shall possess a minimum of] under section 306(b) of the act (77 P. S. § 512(2)). These individuals continue to meet the qualifications established under section 306(b) if they possess a minimum of one of the following:

   (1)  Both of the following:

*      *      *      *      *

   (i)  Certification by one of the following Nationally recognized professional organizations:

*      *      *      *      *

   (E)  Other Nationally recognized professional organizations [approved], published by the Department in the Pennsylvania Bulletin.

   (b)  Individuals meeting the minimum qualifications under subsection (a) are approved to conduct earning power assessment interviews under section 449 of the act (77 P. S. § 1000.5).

§ 123.202a.  Qualifications for vocational experts under Act 53 of 2003.

   (a)  This section applies to individuals who, before ________ (Editor's Note: The blank refers to the effective date of adoption of this proposed rulemaking.), have not conducted earning power assessment interviews under section 306(b) of the act (77 P. S. § 512(2)). These individuals meet the qualifications established under section 306(b) if they possess one of the following:

   (1)  A current license, in good standing, as a licensed professional counselor under the Social Workers, Marriage and Family Therapists and Professional Counselors Act (63 P. S. §§ 1901--1920.2).

   (2)  A Bachelor's or postgraduate degree in rehabilitation or a related counseling field and one of the following:

   (i)  Certification by any of the following Nationally recognized professional organizations:

   (A)  The American Board of Vocational Experts.

   (B)  The Commission on Rehabilitation Counselor Certification.

   (C)  The Commission on Disability Management Specialists Certification.

   (D)  The National Board of Certified Counselors.

   (E)  Other Nationally recognized professional organizations, published by the Department in the Pennsylvania Bulletin.

   (ii)  One year's experience in vocational analysis, evaluation and testing, placement of individuals with disabilities, and analyzing labor market information and occupational trends.

   (b)  Individuals meeting the minimum qualifications under subsection (a) are approved to conduct earning power assessment interviews under section 449 of the act (77 P. S. § 1000.5).

§ 123.203. [Credibility determinations] Role of workers' compensation judges.

   [Credibility determinations relating to the experts contemplated by this subchapter are within the province of the workers' compensation judge.]

   (a)  A workers' compensation judge will determine whether a vocational expert meets the minimum qualifications established in §§ 123.202 and 123.202a (relating to qualifications for current vocational experts under Act 57 of 1996; and qualifications for vocational experts under Act 53 of 2003).

   (b)  Except for subsection (c), this subchapter does not limit a workers' compensation judge's other statutory or regulatory authority and the ability to determine a vocational expert's bias or objectivity.

   (c)  A workers' compensation judge may not consider the results of an earning power assessment interview if the vocational expert has not complied with § 123.204 (relating to conduct of expert witness) or if the insurer has not complied with the requirements of § 123.205 (relating to financial interest disclosure).

§ 123.204.  Conduct of expert witness.

   (a)  A vocational expert who conducts an earning power assessment interview on an insurer's behalf shall disclose to the employee the role and limits of the vocational expert's relationship with the insurer.

   (b)  A vocational expert who conducts an earning power assessment interview on an insurer's behalf shall generate written documentation, in the form of case notes or in a report, as to the expert's involvement in the litigation and conclusions from the interview.

§ 123.205.  Financial interest disclosure.

   (a)  For the purposes of this section, a third-party administrator or another entity that performs services on behalf of an insurer, as specified in section 441(c) of the act (77 P. S. § 997(c)), is an insurer.

   (b)  Before an insurer refers an employee for an earning power assessment interview, the insurer shall disclose to the employee, under section 306 (b)(2.1) of the act (77 P. S. § 512(2.1)), any financial interest the insurer has with the person or entity conducting the earning power assessment interview.

   (c)  The insurer is not required to disclose under this section the mere payment of the vocational interview's cost, without receipt of some other additional form of consideration.

[Pa.B. Doc. No. 05-1292. Filed for public inspection July 8, 2005, 9:00 a.m.]



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