2013 -- S 0231 SUBSTITUTE B

=======

LC00173/SUB B

=======

STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

____________

A N A C T

RELATING TO LABOR AND LABOR RELATIONS -- TEMPORARY DISABILITY

INSURANCE

     Introduced By: Senators Goldin, Paiva Weed, Miller, Nesselbush, and Metts

     Date Introduced: February 06, 2013

     Referred To: Senate Labor

It is enacted by the General Assembly as follows:

1-1

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

1-2

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

1-3

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

1-4

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

1-5

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

1-6

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

1-7

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

1-8

     Definitions as used in this chapter:

1-9

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

1-10

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

1-11

employee who stands in loco parentis to that child.

1-12

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

1-13

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

1-14

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

1-15

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

1-16

being in one another's physical presence.

1-17

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

1-18

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

1-19

partner when he/she was a child.

2-1

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

2-2

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

2-3

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

2-4

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

2-5

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

2-6

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

2-7

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

2-8

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

2-9

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

2-10

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

2-11

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

2-12

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

2-13

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

2-14

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

2-15

shall not be required.

2-16

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

2-17

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

2-18

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

2-19

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

2-20

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

2-21

(c)(1); or

2-22

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

2-23

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

2-24

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

2-25

accordance with the policy of the individual's employer.

2-26

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

2-27

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

2-28

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

2-29

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

2-30

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

2-31

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

2-32

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

2-33

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

2-34

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

3-1

chapter 39-41.

3-2

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

3-3

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

3-4

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

3-5

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

3-6

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

3-7

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

3-8

following:

3-9

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

3-10

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

3-11

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

3-12

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

3-13

benefit year.

3-14

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

3-15

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

3-16

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

3-17

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

3-18

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

3-19

the commencement of leave.

3-20

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

3-21

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

3-22

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

3-23

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

3-24

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

3-25

commencement of the caregiver benefits.

3-26

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

3-27

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

3-28

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

3-29

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

3-30

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

3-31

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

3-32

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

3-33

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

3-34

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

4-1

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

4-2

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

4-3

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

4-4

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

4-5

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

4-6

file a certificate with the department that shall contain:

4-7

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

4-8

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

4-9

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

4-10

     (3) The probable duration of the condition;

4-11

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

4-12

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

4-13

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

4-14

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

4-15

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

4-16

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

4-17

physical care of the patient; and

4-18

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

4-19

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

4-20

heath care provider.

4-21

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

4-22

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

4-23

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

4-24

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

4-25

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

4-26

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

4-27

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

4-28

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

4-29

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

4-30

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

4-31

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

4-32

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

4-33

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

4-34

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

5-1

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

5-2

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

5-3

Information shall include the following:

5-4

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

5-5

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

5-6

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

5-7

with the employee.

5-8

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

5-9

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

5-10

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

5-11

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

5-12

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

5-13

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

5-14

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

5-15

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

5-16

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

5-17

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

5-18

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

5-19

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

5-20

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

5-21

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

5-22

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

5-23

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

5-24

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

5-25

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

5-26

misrepresentation of a material fact.

5-27

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

5-28

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

5-29

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

5-30

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

5-31

subsequently be taken.

5-32

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

5-33

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

5-34

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

6-1

regulations.

6-2

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

6-3

shall have the following powers and duties:

6-4

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

6-5

insurance program;

6-6

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

6-7

section;

6-8

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

6-9

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

6-10

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

6-11

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

6-12

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

6-13

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

6-14

other languages; and

6-15

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

6-16

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

6-17

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

6-18

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

6-19

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

6-20

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

6-21

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

6-22

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

6-23

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

6-24

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

6-25

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

6-26

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

6-27

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

6-28

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

6-29

shall apply to the temporary caregiver insurance program.

6-30

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

6-31

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

6-32

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

6-33

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

6-34

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

7-1

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

7-2

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

7-3

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

7-4

in the state of Rhode island.

7-5

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

7-6

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

7-7

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

7-8

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

7-9

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

7-10

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

7-11

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

7-12

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

7-13

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

7-14

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

7-15

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

7-16

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

7-17

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

7-18

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

7-19

     SECTION 2. This act shall take effect upon passage.

=======

LC00173/SUB B

========

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO LABOR AND LABOR RELATIONS -- TEMPORARY DISABILITY

INSURANCE

***

8-1

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

8-2

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

8-3

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

8-4

new child.

8-5

     This act would take effect upon passage.

=======

LC00173/SUB B

=======