RELATING TO WORKERS' COMPENSATION.

HB423

HOUSE OF REPRESENTATIVES

H.B. NO.

423

THIRTY-THIRD LEGISLATURE, 2025

STATE OF HAWAII

A BILL FOR AN ACT

relating
to workers' compensation
.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

����
SECTION 1.
�
The legislature finds that early intervention
is vital to ensure the efficient and effective rehabilitation of employees who
suffer a work-related injury.
�
This often
begins with the referral of an injured employee for vocational rehabilitation
services.
�
Vocational rehabilitation
services are intended to help the employee return to work as quickly as
possible with pay as close as possible to pre-injury wages.
�
Urgency is needed when initiating the
vocational rehabilitation process to avoid prolonged adverse effects on injured
employees and minimize costs for employers and insurers.

����
The
legislature further finds that it is crucial for injured employees to have
access to appropriate vocational rehabilitation services in the State.
�
Many vocational rehabilitation providers have
expressed concern regarding the future availability of services as several
providers retire or leave the practice.
�

It is important for current and future providers to be properly trained
on the vocational rehabilitation process.

����
The
purpose of this Act is to:

����
(1)
�
Clarify the process for selecting a certified
provider of rehabilitation services; and

����
(2)
�
Require a provider to automatically approve an
injured employee for vocational rehabilitation services if the provider
determines that the injured employee will likely require vocational
rehabilitation services to return to suitable gainful employment.

����
SECTION
2
.
�
Section 386-25, Hawaii Revised Statutes, is
amended to read as follows:

����
"
�386-25
�

Vocational rehabilitation.
�

(a)
�
The purposes of vocational
rehabilitation are to restore an injured worker's earnings capacity as nearly
as possible to that level that the worker was earning at the time of injury and
to return the injured worker to suitable gainful employment in the active labor
force as quickly as possible in a cost-effective manner.
�
Vocational rehabilitation shall not be
available for public employees who have retired from a public employer, as
defined in section 76-11, with whom they sustained their work injury.

����
Employees of public employers, as
defined in section 76-11, who are eligible for their respective public
employer's return to work program, shall participate in and complete the return
to work program, including temporary light duty placement efforts, as a
prerequisite to vocational rehabilitation benefits under this section.

����
(b)
�
The director may refer employees who may have
or have suffered permanent disability as a result of work injuries and who, in
the director's opinion, can be vocationally rehabilitated to the department of
human services or to private providers of rehabilitation services for
vocational rehabilitation services that are feasible.
�
A referral shall be made upon recommendation
of the rehabilitation unit established under section 386-71.5 and after the
employee has been deemed physically able to participate in rehabilitation by
the employee's attending physician.
�
The
unit shall include appropriate professional staff and shall have the following
duties and responsibilities:

����
(1)
�
To review and approve rehabilitation plans
developed by certified providers of rehabilitation services, whether they be
private or public;

����
(2)
�
To adopt rules consistent with this section
that shall expedite and facilitate the identification, notification, and
referral of industrially injured employees to rehabilitation services, and
establish minimum standards for providers providing rehabilitation services
under this section;

����
(3)
�
To certify private and public providers of
rehabilitation services meeting the minimum standards established under
paragraph (2); and

����
(4)
�
To enforce the implementation of
rehabilitation plans.

����
(c)
�
Enrollment in a rehabilitation plan or
program shall not be mandatory and the approval of a proposed rehabilitation
plan or program by the injured employee shall be required.
�
The injured employee [
may
]
shall

select a certified provider of rehabilitation services[
.
]
within
thirty days.
�
Both the certified
provider and the injured employee, within a reasonable time after initiating
rehabilitation services, shall give proper notice of selection to the employer.
�
If the injured employee fails to select a
certified provider within thirty days, the employer shall select the certified
provider of rehabilitation services and give proper notice of selection to the
employee.
�
The injured employee shall
have thirty days after the notice of selection is received to select a
different certified provider of rehabilitation services.

����
(d)
�
A provider shall submit an initial evaluation
report of the employee to the employer and the director within forty-five days
of the date of referral or selection.
�

The evaluation shall determine whether the employee requires vocational
rehabilitation services to return to suitable gainful employment, identify the
necessary services, and state whether the provider can provide these
services.
�
The initial evaluation report
shall contain:

����
(1)
�
An assessment of the employee's:

���������
(A)
�
Current medical status;

���������
(B)
�
Primary disability;

���������
(C)
�
Secondary disability;

���������
(D)
�
Disabilities that are not related to the work
injury; and

���������
(E)
�
Physical or psychological limitations or both.

���������
If this
information is not provided by the treating physician within a reasonable
amount of time, information from another physician shall be accepted;

����
(2)
�
A job analysis addressing the demands of the
employee's employment;

����
(3)
�
A statement from the provider identifying the
employee's vocational handicaps in relation to the employee's ability to:

���������
(A)
�
Return to usual and customary employment; and

���������
(B)
�
Participate in and benefit from a vocational
rehabilitation program;

����
(4)
�
A statement from the provider determining the
feasibility of vocational rehabilitation services, including:

���������
(A)
�
The provider's ability to assist the employee
in the employee's efforts to return to suitable gainful employment;

���������
(B)
�
An outline of specific vocational
rehabilitation services to be provided, justification for the necessity of
services, and how the effectiveness of these services is measured; and

���������
(C)
�
How the vocational rehabilitation services
directly relate to the employee obtaining suitable gainful employment; and

����
(5)
�
The enrollment form and the statement of
worker's rights and responsibilities form obtained from the department.

����
(e)
�
A provider shall automatically approve vocational
rehabilitation services for an injured employee if the provider determines that
the injured employee will likely require vocational rehabilitation services to
return to suitable gainful employment.

����
[
(e)
]

(f)
�
A provider shall file the
employee's plan with the approval of the employee.
�
Upon receipt of the plan from the provider,
an employee shall have ten days to review and sign the plan.
�
The plan shall be submitted to the employer
and the employee and be filed with the director within two days from the date
of the employee's signature.
�
A plan
shall include a statement of the feasibility of the vocational goal, using the
process of:

����
(1)
�
First determining
if the employee's usual and customary employment represents suitable gainful
employment, and, should it not;

����
(2)
�
Next determining
if modified work or other work with the same employer represents suitable
gainful employment, and, should it not;

����
(3)
�
Next determining
if modified or other employment with a different employer represents suitable
gainful employment, and finally, should it not;

����
(4)
�
Then providing
training to obtain employment in another occupational field.
�
When training to obtain employment in another
occupational field is required, the first appropriate option among the
following options shall be selected for the employee:

���������
(A)
�
On-the-job
training;

���������
(B)
�
Short-term
retraining program (less than fifty-two weeks); or

���������
(C)
�
Long-term
retraining program (more than fifty-two weeks); and

����
(5)
�
Lastly, if
training under paragraph (4) is not feasible, then self-employment may be
considered.

����
[
(f)
]

(g)
�
A plan may be approved by the
director; provided the plan includes:

����
(1)
�
A physician's assessment of the employee's
physical limitations, psychological limitations, and ability to return to
work.
�
If this information is not
provided by the treating physician within a reasonable amount of time,
information from another physician shall be accepted;

����
(2)
�
A labor market survey indicating there are
reasonable assurances that the proposed occupation for which the employee is to
be placed or trained is readily available in the community when placement
begins, or there are assurances of reemployment by the employer;

����
(3)
�
A job analysis of the proposed occupation,
setting forth its duties, responsibilities, physical demands, environmental
working conditions, specific qualifications needed for entry-level employment,
reasonable accommodations, expected estimated earnings, and other relevant
information;

����
(4)
�
The nature and extent of the vocational
rehabilitation services to be provided, including:

���������
(A)
�
Specific services to be provided;

���������
(B)
�
Justification for the necessity of the
services;

���������
(C)
�
Estimated time frames for delivery of
services;

���������
(D)
�
The manner in which the effectiveness of these
services is to be measured;

���������
(E)
�
Criteria for determining successful completion
of the vocational rehabilitation plan; and

���������
(F)
�
The employee's responsibilities;

����
(5)
�
A report of tests and copies thereof that have
been administered to the employee, including a statement regarding the need for
and use of the tests to identify a vocational goal;

����
(6)
�
If retraining, including on-the-job training,
is found to be necessary, the estimated cost of retraining, a description of
specific skills to be learned or knowledge acquired with specific time periods
and clearly defined measurements of success, and the nature, amount, and
duration of living expenses;

����
(7)
�
The total cost of the plan; and

����
(8)
�
The employee's approval of the plan.

����
[
(g)
]

(h)
�
The employer shall have ten
calendar days from the postmark date on which the plan was mailed to submit in
writing to the director any objections to the plan.

����
[
(h)
]

(i)
�
The director may approve a
plan that does not include all of the requirements outlined in subsection [
(f);
]

(g);
provided that the director finds the plan:

����
(1)
�
Is in the best interest of the employee;

����
(2)
�
Contains reasonable assurances that the
employee will be placed in suitable gainful employment; and

����
(3)
�
Has been approved by the employee.

����
[
(i)
]

(j)
�
If the plan requires the
purchase of any tools, supplies, or equipment, the purchase deadline shall be
included in the plan.
�
Tools, supplies,
and equipment shall be considered to be the property of the employer until the
plan is determined by the director to be successfully completed, after which it
shall become the property of the employee.
�

If the plan requires the purchase, etc., the employer shall purchase the
items [
prior to
]
before
the purchase deadline in the plan.

����
[
(j)
]

(k)
�
An employee with an approved
plan who is determined as able to return to usual and customary employment may
choose to complete the plan or request a new plan of which the goal may be the
employee's usual and customary employment.

����
[
(k)
]

(l)
�
An injured employee's
enrollment in a rehabilitation plan or program shall not affect the employee's
entitlement to temporary total disability compensation if the employee earns no
wages during the period of enrollment.
�

If the employee receives wages for work performed under the plan or
program, the employee shall be entitled to temporary total disability
compensation in an amount equal to the difference between the employee's
average weekly wages at the time of injury and the wages received under the plan
or program, subject to the limitations on weekly benefit rates prescribed in
section 386-31(a).
�
The employee shall
not be entitled to temporary total disability compensation for any week during
this period where the wages equal or exceed the average weekly wages at the
time of injury.

����
[
(l)
]

(m)

�
The director shall adopt
rules for additional living expenses necessitated by the rehabilitation
program, together with all reasonable and necessary vocational training.

����
[
(m)
]

(n)
�
If the rehabilitation unit
determines that vocational rehabilitation is not possible or feasible, it shall
certify the determination to the director.

����
[
(n)
]

(o)
�
Except as otherwise provided,
determinations of the rehabilitation unit shall be final unless a written
request for reconsideration is filed with the rehabilitation unit within ten
calendar days of the date of the determination.

����
The
rehabilitation unit shall issue a reconsideration determination to affirm,
reverse, or modify the determination or refer the request for reconsideration
for hearing.

����
[
(o)
]

(p)
�
A reconsideration
determination shall be final unless a written request for hearing is filed
within ten calendar days from the date of the reconsideration
determination.
�
All hearings shall be
held before a hearings officer designated by the director.
�
A written decision shall be issued in the
name of the director.

����
[
(p)
]

(q)
�
The eligibility of any
injured employee to receive other benefits under this chapter shall in no way
be affected by the employee's entrance upon a course of vocational
rehabilitation as herein provided.

����
[
(q)
]

(r)
�
Vocational rehabilitation
services for the purpose of developing a vocational rehabilitation plan may be
approved by the director and the director may periodically review progress in
each case."

����
SECTION 3.
�
Statutory material to be repealed is
bracketed and stricken.
�
New statutory
material is underscored.

����
SECTION 4.
�
This Act shall take effect upon its approval.

INTRODUCED BY:

_____________________________

Report Title:

Workers'
Compensation; Vocational Rehabilitation Services

Description:

Clarifies
the process for selecting a certified provider of rehabilitation services.
�
Requires providers to automatically approve vocational
rehabilitation services for an injured employee if those services will likely
be required for suitable gainful employment.

The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.