2013 -- H 5889 SUBSTITUTE A

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

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A N A C T

RELATING TO LABOR AND LABOR RELATIONS -- TEMPORARY DISABILITY

INSURANCE

     Introduced By: Representatives E Coderre, Ajello, Williams, Ferri, and Blazejewski

     Date Introduced: March 19, 2013

     Referred To: House Finance

It is enacted by the General Assembly as follows:

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     SECTION 1. Chapter 28-41 of the General Laws entitled "Temporary Disability

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Insurance - Benefits" are hereby amended by adding thereto the following sections:

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     28-41-34. Temporary caregiver insurance. – The purpose of this chapter is to establish,

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within the state temporary disability insurance program, a temporary caregiver insurance program

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to provide wage replacement benefits in accordance with the provisions of this chapter, to

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workers who take time off work to care for a seriously ill child, spouse, domestic partner, parent,

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parent-in-law, grandparent, or to bond with a new child.

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     Definitions as used in this chapter:

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     (1) "Child" means a biological, adopted, or foster son or daughter, a stepson or

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stepdaughter, a legal ward, a son or daughter of a domestic partner, or a son or daughter of an

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employee who stands in loco parentis to that child.

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     (2) "Newborn child" means a child under one year of age.

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     (3) "Adopted child" means a child adopted by, or placed for adoption with, the employee.

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     (4) "Bonding or bond" means to develop a psychological and emotional attachment

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between a child and his or her parent(s) or persons who stand in loco parentis. This shall involve

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being in one another's physical presence.

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     (5) "Parent" means a biological, foster, or adoptive parent, a stepparent, a legal guardian,

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or other person who stands in loco parentis to the employee or the employee's spouse or domestic

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partner when he/she was a child.

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     (6) "Domestic partner" means a party to a civil union as defined by chapter 15-3.1.

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     (7) "Spouse" means a party in a common law marriage, a party in a marriage conducted

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and recognized by another state or country, or in a marriage as defined by chapter 15-3.

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     (8) "Grandparent" means a parent of the employee's parent.

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     (9) "Parent-in-law" means the parent of the employee's spouse or domestic partner.

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     (10) "Employee" means any person who is or has been employed by an employer subject

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to chapters 39 through 41 of this title and in employment subject to those chapters.

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     (11) "Serious health condition" means any illness, injury, impairment, or physical or

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mental condition that involves inpatient care in a hospital, hospice, residential health care facility,

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or continued treatment or continuing supervision by a licensed health care provider.

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     (12) "Department" means the department of labor and training.

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     (13) "Persons who stand in loco parentis" means those with day-to-day responsibilities to

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care for and financially support a child or, in the case of an employee, who had such

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responsibility for the employee when the employee was a child. A biological or legal relationship

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shall not be required.

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     28-41-35. Benefits. – (a) Subject to the conditions set forth in this chapter, an employee

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shall be eligible for temporary caregiver benefits for any week in which he or she is unable to

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perform his or her regular and customary work because he or she is:

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     (1) Bonding with a newborn child or a child newly placed for adoption or foster care with

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the employee or domestic partner in accordance with the provisions of subdivision 28-41-36-

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(c)(1); or

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     (2) Caring for a child, a parent, parent-in-law, grandparent, spouse, or domestic partner,

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who has a serious health condition, subject to a waiting period in accordance with the provisions

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of section 28-41-12. Employees may use accrued sick time during eligibility waiting period in

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accordance with the policy of the individual's employer.

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     (b) Temporary caregiver benefits shall be available only to the employee exercising his or

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her right to leave while covered by the temporary caregiver insurance program. An employee

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shall file a written intent with their employer, in accordance with rules and regulations

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promulgated by the department, with a minimum of thirty (30) days notice prior to

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commencement of the family leave. Failure by the employee to provide the written intent may

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result in delay or reduction in the claimant's benefits, except in the event the time of the leave is

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unforeseeable or the time of the leave changes for unforeseeable circumstances.

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     (c) Employees cannot file for both temporary caregiver benefits and temporary disability

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benefits for the same purpose, concurrently, in accordance with all provisions of this act and

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chapter 39-41.

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     (d) Temporary caregiver benefits may be available to any individual exercising his or her

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right to leave while covered by the temporary caregiver insurance program, commencing on or

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after January 1, 2014, which shall not exceed the individual's maximum benefits in accordance

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with chapters 39-41. The benefits for the temporary caregiver program shall be payable with

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respect to the first day of leave taken after the waiting period and each subsequent day of leave

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during that period of family temporary disability leave. Benefits shall be in accordance with the

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following:

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     (1) Beginning January 1, 2014 temporary caregiver benefits shall be limited to a

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maximum of four (4) weeks in a benefit year;

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     (e) In addition, no individual shall be paid temporary caregiver benefits and temporary

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disability benefits which together exceed thirty (30) times his or her weekly benefit rate in any

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benefit year.

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     (f) Any employee who exercises his or her right to leave covered by temporary caregiver

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insurance under this chapter shall, upon the expiration of that leave, be entitled to be restored by

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the employer to the position held by the employee when the leave commenced, or to a position

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with equivalent seniority, status, employment benefits, pay, and other terms and conditions of

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employment including fringe benefits and service credits that the employee had been entitled to at

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the commencement of leave.

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     (g) During any caregiver leave taken pursuant to this chapter, the employer shall maintain

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any existing health benefits of the employee in force for the duration of the leave as if the

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employee had continued in employment continuously from the date he or she commenced the

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leave until the date the caregiver benefits terminate; provided, however, that the employee shall

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continue to pay any employee shares of the cost of health benefits as required prior to the

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commencement of the caregiver benefits.

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     (h) No individual shall be entitled to waiting period credit or temporary caregiver benefits

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under this section for any week beginning prior to January 1, 2014.

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     (i) Temporary caregiver benefits shall be in accordance with federal Family and Medical

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Leave Act (FMLA) P.L. 103-3 and Rhode Island Family Parental and Family Leave Act in

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accordance with section 28-48-1, et. seq. An employer may require an employee who is entitled

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to leave under the federal Family and Medical Leave Act, PL 103-3 and/or the Rhode Island

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Parental and Family Medical Leave Act, 28-41 et seq., who exercises his or her right to benefits

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under the temporary caregiver insurance program under this chapter, to take any temporary

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caregiver benefits received, concurrently, with any leave taken pursuant to the federal Family and

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Medical Leave Act and/or the Rhode Island Parental and Family Medical Leave Act.

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     28-41-36. Certification of eligibility for leave. – (a) An individual who exercises his or

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her right to leave covered by the temporary caregiver insurance program under this chapter shall

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file a certificate form with all information required by the department.

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     (b) For leave for reason of caring for a seriously ill family member, an employee shall

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file a certificate with the department that shall contain:

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     (1) A diagnosis and diagnostic code prescribed in the international classification of

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diseases, or where no diagnosis has yet been obtained, a detailed statement of symptoms;

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     (2) The date if known, on which the condition commenced;

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     (3) The probable duration of the condition;

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     (4) An estimate of the amount of time that the licensed qualified health care provider

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believes the employee is needed to care for the family member;

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     (5) A statement that the serious health condition warrants the participation of the

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employee to provide care for his or her family member. "Warrants the participation of the

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employee" includes, but is not limited to, providing psychological comfort, arranging third-party

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care for the family member as well as directly providing, or participating in the medical and

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physical care of the patient; and

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     (6) A certificate filed to establish medical eligibility of the serious health condition of the

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employee's family member shall be made by the family member's treating licensed qualified

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heath care provider.

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     (7) In the case of a parent, or persons who are in loco parentis caring for the serious

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health condition of a foster care child, the employee shall submit all required information in

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accordance with this section, with a written request to the department of children, youth and

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families for the release of medical information by the child's treating licensed qualified health

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care provider. The department of children, youth and families shall transmit the requested

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medical information, pending all properly submitted forms, to the department of labor and

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training, within ten (10) business days of request. In the absence of the requested transmitted

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medical information by the department of children, youth and families within ten (10) business

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days, the employee may request the licensed qualified healthcare provider to directly transmit the

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medical eligibility of the serious health condition to the department of labor and training.

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Payment shall not be delayed, in accordance with all provisions of chapter 39-41, as a result of

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delays by the department of children, youth and families in transmitting medical information.

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     (c) The department shall develop a certificate of eligibility form for leave in the case of

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bonding as defined herein, for the birth of a newborn child of the employee or the employee's

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domestic partner, or the placement of a child with the employee in connection with the adoption

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or foster care of the child by the employee or domestic partner, or persons in loco parentis.

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Information shall include the following:

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     (1) A birth certificate, certificate of adoption, or other competent evidence showing the

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employee or the employee's domestic partner, or persons in loco parentis is the parent of the child

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within twelve (12) months of the child's adoption, birth or placement for adoption or foster care

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with the employee.

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     28-41-37. Determination of a Claim.-- (a) In accordance with section 28-41-16, upon

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the filing of a claim, the director shall promptly examine the claim and on the basis of facts found

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by the director and records maintained by the department, the claim shall be determined to be

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valid or invalid, if the claim is determined to be valid, the director shall promptly notify the

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claimant as to the week with respect to which benefits shall commence, the weekly benefit

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amount payable, and the maximum duration of those benefits. If the claim is determined to be

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invalid, the director shall likewise notify the claimant and any other interested parties of that

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determination and the reasons for it. if the processing of the claim is delayed for any reason, the

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director shall notify the claimant, in writing, within three (3) weeks of the date the application for

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benefits is filed of the reason for the delay. Unless the claimant or any other interested party,

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within fifteen (15) days, requests a hearing before the board of review, the determination with

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reference to the claim is final. However, for good cause shown the fifteen (15) day period may be

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extended after notification by the director has been mailed to his or her last known address, as

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provided in this section. At any time within one year from the date of a monetary determination,

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the director, upon request of the claimant or on his or her own motion, may reconsider his or her

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determination if he or she finds that an error in computation or identity has occurred in

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connection with it or that additional wages pertinent to the claimant's status have become

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available, or if that determination has been made as a result of a nondisclosure or

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misrepresentation of a material fact.

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     (b) If an appeal is duly filed, benefits with respect to the period prior to the final decision,

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if it is found that those benefits are payable, shall be paid only after the decision. If an appeal

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tribunal affirms a decision of the director, or the board of review affirms a decision of an appeal

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tribunal allowing benefits, those benefits shall be paid regardless of any appeal which may

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subsequently be taken.

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     28-41-38. Confidential Health Information.-- Information pursuant to any individual's

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temporary disability claim or temporary caregiver insurance claim shall be held confidential in

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accordance with chapters 39-41, section 28-39-19, 5-37.3, and all applicable state and federal

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regulations.

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     28-41-39. Powers and Duties.-- (a) The director of the department of labor and training

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shall have the following powers and duties:

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     (1) To promulgate regulations relative to the operation of the temporary caregiver

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insurance program;

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     (2) To create all necessary applications and certificates to fulfill the purposes of this

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section;

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     (3) To disseminate information regarding the program to Rhode Island employers and

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shall carry out a public education program to inform workers and employers about the availability

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of benefits under the temporary caregiver insurance program. The director may use a proportion

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of the funds collected for the temporary caregiver insurance program in a given year to pay for

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the public education program and/or funding received from other sources for the purpose of

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educating the public about their benefits. Outreach information shall be available in English and

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other languages; and

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     (4) To inform Rhode Island employees of their disability insurance rights and benefits

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due to the employee's own sickness, injury, or pregnancy, or the employee's need to provide care

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for any sick or injured family member or new child. The notice shall be given by every eligible

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employer to each new employee hired on or after January 1, 2014, and to each employee taking

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leave from work on or after January 1, 2014 due to pregnancy or the need to provide care for any

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sick or injured family member or new child. The director shall require each employer to post and

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maintain information regarding the program in accordance with section 28-41-15.

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     28-41-40. Fraud and Misrepresentation of Benefits. -- (a) The temporary caregiver

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insurance program shall be part of the temporary disability insurance fund. If the director finds

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that any individual falsely certifies the medical condition of any person in order to obtain family

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temporary disability insurance benefits, with the intent to defraud, whether for the maker or for

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any other person, the director shall assess a penalty against the individual in the amount of

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twenty-five percent (25%) of the benefits paid as a result of the false certification. Unless

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otherwise specified to the contrary, all of the provisions of chapters 39 through 41 of this title

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shall apply to the temporary caregiver insurance program.

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      (b) If a physician or other qualified health care provider licensed by a foreign country is

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under investigation by the department for assisting in the filing of false claims and the department

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does not have the legal remedies to conduct a criminal investigation or prosecution in that

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country, the department may suspend the processing of all further certifications until the licensed

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qualified health care provider fully cooperates and continues to cooperate with the investigation.

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A qualified health care provider licensed by and practicing in a foreign country who has been

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convicted of filing false claims with the department shall be barred indefinitely from filing a

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certificate in support of a temporary disability insurance or temporary caregiver insurance claim

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in the state of Rhode island.

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     28-41-41. Criminal Prosecution. -- All criminal actions for any violation of chapter 39 -

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41 of this title, or any rule or regulation of the department shall be prosecuted by the attorney

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general, or by any qualified member of the Rhode Island bar, that shall be designated by the

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director and approved by the attorney general to institute and prosecute that action.

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     28-41-42. Receipt of Federal Funds. -- To the extent that funds are made available by

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the federal government, under title III of the Social Security Act, (42 U.S.C. 501 et seq.), or

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otherwise for such purpose, the expenses of administering chapter 39-41 of this title shall be paid

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from those funds, provided that this section shall not be considered to permit any expenditure of

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funds from the employment security administration account contrary to section 28-42-29. In the

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event that the Social Security Act is amended to permit funds granted under Title III to be used to

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pay expenses of administering a sickness compensation law, such as chapter 39-41 of this title,

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then from and after the effective date of that amendment, the expenses of administering those

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chapters shall be paid out of the employment security administration account or any other account

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or fund in which funds granted under Title III are deposited.

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     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO LABOR AND LABOR RELATIONS -- TEMPORARY DISABILITY

INSURANCE

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     This act would establish within the state temporary disability insurance program, a

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temporary caregiver insurance program to provide benefits to workers who take time off for a

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seriously ill child, spouse, parent, parent-in-law, grandparent, domestic partner or to bond with a

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new child.

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     This act would take effect upon passage.

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