BILL NUMBER: AB 2883 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 13, 2016
AMENDED IN ASSEMBLY MAY 27, 2016
AMENDED IN ASSEMBLY MARCH 29, 2016
INTRODUCED BY Committee on Insurance (Assembly Members Daly
(Chair), Travis Allen, Bigelow, Calderon, Cooley, Cooper, Dababneh,
Frazier, Beth Gaines, Gatto, Gonzalez, and Rodriguez)
FEBRUARY 25, 2016
An act to amend Sections 3351 and 3352 of, to add
Section 77.7 to, and to repeal Section 6354.7 of, the Labor Code,
relating to workers' compensation.
LEGISLATIVE COUNSEL'S DIGEST
AB 2883, as amended, Committee on Insurance. Workers'
compensation: utilization review. review:
employees .
Existing law establishes a workers' compensation system,
administered by the Administrative Director of the Division of
Workers' Compensation, within the Department of Industrial Relations,
to compensate an employee for injuries sustained in the course of
his or her employment. Existing law requires every employer to
establish a utilization review process, and defines "utilization
review" as utilization review or utilization management functions
that prospectively, retrospectively, or concurrently review and
approve, modify, delay, or deny, based in whole or in part on medical
necessity to cure and relieve an injured worker from the effects of
his or her injury, treatment recommendations by physicians, prior to,
retrospectively, or concurrent with providing medical treatment
services.
Existing law also establishes the Commission on Health and Safety
and Workers' Compensation in the department. Existing law directs the
commission to conduct a continuing examination of the workers'
compensation system and of the state's activities to prevent
industrial injuries and occupational diseases. Existing law also
authorizes the commission to conduct or contract for studies it deems
necessary to carry out its responsibilities.
This bill would require the commission to conduct, or contract for
the conduct of, a feasibility study regarding the extent to which
physicians' requests for authorization of medical treatment for
injured employees may be processed using an entirely paperless
system. The bill would provide that the focus of the feasibility
study shall be to determine whether the change to a paperless system
would reduce the time required to provide medical treatment services
to injured employees and improve the clarity and quality of
communication between physicians and the employer's utilization
review process. The bill would require the commission to consult with
stakeholders, as specified, and would grant the commission
discretion to decide whether to conduct or contract for the conduct
of the feasibility study. The bill would also delete obsolete
provisions.
Existing law defines an employee, for purposes of the laws
governing workers' compensation, to include, among other persons,
officers and members of boards of directors of quasi-public or
private corporations while rendering actual service for the
corporations for pay. Existing law excludes from that definition,
among other persons, officers and directors of a private corporation
who are the sole shareholders of the corporation and working members
of a partnership or limited liability company, as specified, unless
they elect to come under the compensation provisions of the laws
governing workers' compensation.
This bill would revise those exceptions from the definition of an
employee to apply to an officer or member of the board of directors,
as specified, if he or she owns at least 15% of the issued and
outstanding stock of the corporation, or an individual who is a
general partner of a partnership or a managing member of a limited
liability company, and that person elects to be excluded by executing
a written waiver of his or her rights under the laws governing
workers' compensation, stating under penalty of perjury that he or
she is a qualifying officer or director, or a qualifying general
partner or managing member, as applicable. The bill would specify the
effective date of the waivers.
The bill would also make technical and clarifying changes to the
provision excluding specified persons from the definition of
employee.
Existing law proscribes the crime of perjury.
By expanding the scope of the crime of perjury, the bill would
impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 77.7 is added to the Labor Code, to read:
77.7. (a) The commission shall conduct, or contract for the
conduct of, a feasibility study regarding the extent to which
physicians' requests for authorization of medical treatment for
injured employees may be processed using an entirely paperless
system. The focus of the feasibility study shall be to determine
whether the change to a paperless system would reduce the time
required to provide medical treatment services to injured employees
and improve the clarity and quality of communication between
physicians and the employer's utilization review process. To make
that determination, the study shall also include an assessment
regarding the current state of infrastructure in place to meet this
goal, and any additional costs and requirements for providers and the
state that may be deemed necessary to ensure efficiency,
interoperability, and privacy protections in making the change to a
paperless system.
(b) The commission shall consult with stakeholders, including
employers, employees, and medical providers, in conducting or
contracting for the feasibility study pursuant to subdivision (a).
(c) The commission shall have discretion to decide whether to
conduct or contract for the conduct of the feasibility study pursuant
to this section.
SEC. 2. Section 3351 of the Labor Code
is amended to read:
3351. "Employee" means every person in the service of an employer
under any appointment or contract of hire or apprenticeship, express
or implied, oral or written, whether lawfully or unlawfully
employed, and includes:
(a) Aliens and minors.
(b) All elected and appointed paid public officers.
(c) All officers and members of boards of directors of
quasi-public or private corporations while rendering actual service
for the corporations for pay; provided that, where the
officers and directors of the private corporation are the sole
shareholders thereof, the corporation and the officers and directors
shall come under the compensation provisions of this division only by
election as provided in subdivision (a) of Section 4151.
pay may elect to be excluded from coverage in accordance with
subdivision (p) of Section 3352.
(d) Except as provided in subdivision (h) of Section 3352, any
person employed by the owner or occupant of a residential dwelling
whose duties are incidental to the ownership, maintenance, or use of
the dwelling, including the care and supervision of children, or
whose duties are personal and not in the course of the trade,
business, profession, or occupation of the owner or occupant.
(e) All persons incarcerated in a state penal or correctional
institution while engaged in assigned work or employment as defined
in paragraph (1) of subdivision (a) of Section 10021 of Title 8 of
the California Code of Regulations, or engaged in work performed
under contract.
(f) All working members of a partnership or limited liability
company receiving wages irrespective of profits from the partnership
or limited liability company; provided that where the
working members of the partnership or limited liability company are
general partners or managers, the partnership or limited liability
company and the partners or managers shall come under the
compensation provisions of this division only by election as provided
in subdivision (a) of Section 4151. If a private corporation is a
general partner or manager, "working members of a partnership or
limited liability company" shall include the corporation and the
officers and directors of the corporation, provided that the officers
and directors are the sole shareholders of the corporation. If a
limited liability company is a partner or member, "working members of
the partnership or limited liability company" shall include the
managers of the limited liability company. company may
elect to be excluded from coverage in accordance with
subdivision (q) of Section 3352.
(g) For the purposes of subdivisions (c) and (f), the persons
holding the power to revoke a trust as to shares of a private
corporation or as to general partnership or limited liability company
interests held in the trust, shall be deemed to be the shareholders
of the private corporation, or the general partners of the
partnership, or the managers of the limited liability company.
SEC. 3. Section 3352 of the Labor Code
is amended to read:
3352. "Employee" excludes the following:
(a) Any A person defined in
subdivision (d) of Section 3351 who is employed by his or her parent,
spouse, or child.
(b) Any A person performing services
in return for aid or sustenance only, received from any religious,
charitable, or relief organization.
(c) Any A person holding an
appointment as deputy clerk or deputy sheriff appointed for his or
her own convenience, and who receives no does
not receive compensation from the county or municipal
corporation or from the citizens thereof of
that county or municipal corporation for his or her services as
the deputy. This exclusion is operative only as to employment by the
county or municipal corporation and does not deprive any
that person so deputized from
recourse against a private person employing him or her for injury
occurring in the course of of, and
arising out of of, the employment.
(d) Any A person performing
voluntary services at or for a recreational camp, hut, or lodge
operated by a nonprofit organization, exempt from federal income tax
under Section 101(6) 501 of the
Internal Revenue Code, of which he or she or a member of his or her
family is a member and who receives no does
not receive compensation for those services
services, other than meals, lodging, or transportation.
(e) Any A person performing
voluntary service as a ski patrolman who receives no
does not receive compensation for those
services services, other than meals or lodging
or the use of ski tow or ski lift facilities.
(f) Any A person employed by a ski
lift operator to work at a snow ski area who is relieved of
of, and is not performing
any any, prescribed duties, while participating
in recreational activities on his or her own initiative.
(g) Any A person, other than a
regular employee, participating in sports or athletics who
receives no does not receive compensation for
the participation other than the use of athletic equipment, uniforms,
transportation, travel, meals, lodgings, or other expenses
incidental thereto.
(h) Any person defined in subdivision (d) of Section 3351 who was
employed by the employer to be held liable for less than 52 hours
during the 90 calendar days immediately preceding the date of the
injury for injuries, as defined in Section 5411, or during the 90
calendar days immediately preceding the date of the last employment
in an occupation exposing the employee to the hazards of the disease
or injury for injuries, as defined in Section 5412, or who earned
less than one hundred dollars ($100) in wages from the employer
during the 90 calendar days immediately preceding the date of the
injury for injuries, as defined in Section 5411, or during the 90
calendar days immediately preceding the date of the last employment
in an occupation exposing the employee to the hazards of the disease
or injury for injuries, as defined in Section 5412.
(h) A person described in subdivision (d) of Section 3351 whose
employment by the employer to be held liable, during the 90 calendar
days immediately preceding the date of injury, for injuries as
described in Section 5411, or during the 90 calendar days immediately
preceding the date of the last employment in an occupation exposing
the employee to the hazards of the disease or injury, for diseases or
injuries as described in Section 5412, comes within either of the
following descriptions:
(1) The employment was, or was contracted to be, for less than 52
hours.
(2) The employment was, or was contracted to be, for wages of not
more than one hundred dollars ($100).
(i) Any A person performing
voluntary service for a public agency or a private, nonprofit
organization who receives no does not receive
remuneration for the services
services, other than meals, transportation, lodging, or
reimbursement for incidental expenses.
(j) Any A person, other than a
regular employee, performing officiating services relating to amateur
sporting events sponsored by any a
public agency or private, nonprofit organization, who
receives no does not receive
remuneration for these services services,
other than a stipend for each day of service no greater than
the amount established by the Department of Human Resources as a per
diem expense for employees or officers of the state. The stipend
shall be presumed to cover incidental expenses involved in
officiating, including, but not limited to, meals, transportation,
lodging, rule books and courses, uniforms, and appropriate equipment.
(k) Any A student participating as
an athlete in amateur sporting events sponsored by any
a public agency, agency
or public or private nonprofit college, university
university, or school, who receives no
does not receive remuneration for the
participation participation, other than the use
of athletic equipment, uniforms, transportation, travel, meals,
lodgings, scholarships, grants-in-aid, or other expenses incidental
thereto.
( l ) Any A law
enforcement officer who is regularly employed by a local or state law
enforcement agency in an adjoining state and who is deputized to
work under the supervision of a California peace officer pursuant to
paragraph (4) of subdivision (a) of Section 832.6 of the Penal Code.
(m) Any A law enforcement officer
who is regularly employed by the Oregon State Police, the Nevada
Department of Motor Vehicles and Public Safety, or the Arizona
Department of Public Safety and who is acting as a peace officer in
this state pursuant to subdivision (a) of Section 830.32
830.39 of the Penal Code.
(n) Any A person, other than a
regular employee, performing services as a sports official for an
entity sponsoring an intercollegiate or interscholastic sports event,
or any person performing services as a sports official for a public
agency, public entity, or a private nonprofit organization, which
public agency, public entity, or private nonprofit organization
sponsors an amateur sports event. For purposes of this subdivision,
"sports official" includes an umpire, referee, judge, scorekeeper,
timekeeper, or other person who is a neutral participant in a sports
event.
(o) Any A person who is an
owner-builder, as defined in subdivision (a) of Section 50692 of the
Health and Safety Code, who is participating in a mutual self-help
housing program, as defined in Section 50087 of the Health and Safety
Code, sponsored by a nonprofit corporation.
(p) An officer or member of the board of directors, as described
in subdivision (c) of Section 3351, if he or she owns at least 15
percent of the issued and outstanding stock of the corporation and
executes a written waiver of his or her rights under this chapter
stating under penalty of perjury that the person is a qualifying
officer or director. The waiver shall be effective upon the date of
receipt by the corporation's insurance carrier and shall remain
effective until the officer or member of the board of directors
provides the insurance carrier with a written withdrawal of the
waiver.
(q) An individual who is a general partner of a partnership or a
managing member of a limited liability company who executes a written
waiver of his or her rights under this chapter stating under penalty
of perjury that the person is a qualifying general partner or
managing member. The waiver shall be effective upon the date of
receipt by the partnership or limited liability company's insurance
carrier and shall remain effective until the general partner or
managing member provides the insurance carrier with a written
withdrawal of the waiver.
SEC. 2. SEC. 4. Section 6354.7 of the
Labor Code, as added by Section 84 of Chapter 6 of the Statutes of
2002, is repealed.
SEC. 5. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.