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11 CAR § 25-126. Accident prevention services
11 CAR § 25-126. Accident prevention services.
(a) Purpose and scope.
(1) The purpose of this section is to promote safer Arkansas workplaces by ensuring that Arkansas employers are provided adequate accident prevention services from their workers’ compensation insurance companies as provided for in Arkansas Code § 11-9-409(d).
(2) All insurance companies licensed to write or seeking license to write workers’ compensation insurance policies in Arkansas are subject to the provisions of this section.
(3) This section does not apply to self-insured employers.
(b) Definitions. As used in this section:
(1) “Accident prevention services plan (APSP)” means a document describing the policies and procedures used by the insurance company to provide accident prevention services to its policyholders in accordance with this section;
(2) “Approved professional safety source (APSS)” means an occupational health and safety consultant approved by the Workers’ Compensation Commission Workers’ Health and Safety Division to service employers defined in 11 CAR § 25-127;
(3) “Commission” means Workers’ Compensation Commission;
(4) “Days” means calendar days;
(5) “Direct premium written” means the amount charged to the policyholder for the workers’ compensation policy which shall include:
(A) The expense constant;
(B) Any allowable deviated discounts;
(C) Any experience rating modification;
(D) Any premium discount or debit;
(E) Any reinsurance or deductible arrangement as common with fronting carriers;
(F) Any dividend consideration; or
(G) Any other trade discount;
(6) “Division” means Workers’ Compensation Commission Workers’ Health and Safety Division;
(7) “Employee” means any person in service of an employer as defined by Arkansas Code § 11-9-102(9);
(8) “Employer” means any individual, partnership, association, or corporation as defined by Arkansas Code § 11-9-102(10);
(9) “Extra-Hazardous Employer Program” means the program established by Arkansas Code § 11-9-409(c) with criteria established by 11 CAR § 25-127;
(10) “Field safety representative (FSR)” means an occupational health and safety consultant approved by the Workers’ Health and Safety Division to service workers’ compensation accounts;
(11) “Loss analysis” means an in-depth examination of root causes of losses, which may include a loss run as one (1), but not the sole component;
(12)(A) “Loss ratio” means losses incurred during the policy year, both paid and expected/reserved, divided by the written manual premium.
(B) In the context of this section, “loss ratio” is used as an indicator of whether accident prevention services must include an annual on-site visit or other appropriate services;
(13) “Policyholder” means the person or entity owning the policy of insurance;
(14) “Workplace” means each business operation, facility, or location of an employer where employees are present during part of or for the entire work shift; and
(15)(A) “Written manual premium” means a premium produced in a given year by the manual rates in effect during the experience period which shall exclude the premium produced by the expense constant.
(B) Further, “written manual premium” means premium before:
(i) Allowable deviated discounts;
(ii) Experience-rating modification;
(iii) Premium discount;
(iv) Reinsurance or deductible arrangement as common with fronting carriers;
(v) Dividend consideration; or
(vi) Other trade discount.
(c) Accident prevention services.
(1) An insurance company desiring to write workers’ compensation insurance in Arkansas shall have the ability to provide accident prevention services described in subdivisions (c)(2) – (5) of this section, subject to inspection by the Workers’ Compensation Commission, as a prerequisite to obtaining or maintaining a license to write such insurance.
(2)(A) An APSP must be filed with the commission at the time an insurance company pays its filing fees prior to writing workers’ compensation policies in Arkansas.
(B) If these fees have already been paid, an APSP must be on file with the commission.
(3)(A) An insurance company shall provide or make available basic accident prevention services to policyholders at no additional charge or change in premium.
(B) These may include visits to each policyholder workplace.
(C) Accident prevention services required under 11 CAR § 25-127 must be provided or made available at no additional charge to each policyholder workplace identified under that section.
(4) The insurance company, using only commission-approved FSRs/APSSs, shall:
(A)(i) Provide appropriate accident prevention services to its clients as listed below.
(ii) For services to be appropriate, the insurance company must demonstrate that it actively evaluated the insured’s performance and loss potential stated in this subdivision (c)(4) and then offered to provide services to correct or alleviate hazards recognizable by an occupational health and safety professional;
(B) Respond to requests from policyholder for services within fifteen (15) days of the date services were first requested and provide the actual services within sixty (60) days; and
(C)(i) Provide appropriate services to each Arkansas policyholder.
(ii) At a minimum, appropriate services shall include:
(a) Annual on-site workplace visit or visits or other appropriate services to each policyholder with a direct premium written of twenty-five thousand dollars ($25,000) or greater;
(b) Annual workplace visit or visits or other appropriate services to each policyholder with a direct premium written of five thousand dollars ($5,000) up to twenty-four thousand nine hundred ninety-nine dollars ($24,999) whose loss ratio is equal to or greater than one hundred percent (100%);
(c) Annual workplace visit or visits or other appropriate services to each policyholder with a direct premium written of less than five thousand dollars ($5,000), whose loss ratio is equal or greater than one hundred fifty percent (150%); and
(d)(1) Contacting all policyholders not serviced under the guidelines of this subdivision (c)(4) at least once during the policy year within sixty (60) days of policy inception or renewal date, separate from the actual workers’ compensation insurance policy to determine their need for assistance and to advise them that accident prevention services are available at no additional cost.
(2) The insurance company may determine the method of contact (e.g., visit, letter, telephone call, email, etc.).
(5)(A) The insurance company shall provide accident prevention services which meet the standards of the Workers’ Health and Safety Division as required by Arkansas Code § 11-9-409(d).
(B) The program shall provide at a minimum:
(i) An annual evaluation of accident prevention services for policyholders and their workplaces, based on the following criteria:
(a) Hazard, probability of serious accidents, probability of catastrophic accidents, accident frequency, and probability of occupational illnesses or diseases;
(b) Loss experience, including loss ratio as defined by this section, experience modifiers, frequency rates, and severity rates; and
(c) Total number of employees, number of workplaces, and number of employees per workplace;
(ii) Procedures for determining the appropriate accident prevention services to be provided to a policyholder and to each policyholder’s workplace;
(iii) Procedures indicating the time frame and manner in which the requested accident prevention services as stated in subdivision (c)(3) of this section will be provided;
(iv) Records, reports, and evidence of all accident prevention services provided to each policyholder and each workplace;
(v) Procedures for providing safety training and safety material for each policyholder;
(vi) At a minimum of once a year, written notification to policyholders and policyholder workplaces of their actual claims experience including reserves and, if the policyholder meets the criteria of subdivision (c)(4)(C) of this section or if the policyholder is identified under 11 CAR § 25-127, a loss analysis;
(vii) Procedures for providing internal documentation and written reports to the policyholders and policyholders’ workplaces when the FSR/APSS has identified hazardous conditions and work practices; and
(viii) Evidence that the notice required by subsection (e) of this section is provided to policyholders.
(6) The insurance company shall provide the following to the Workers’ Health and Safety Division’s Accident Prevention Services staff:
(A)(i) An APSP, updated as necessary.
(ii) The plan shall describe how the company will meet all the requirements relating to the provision of accident prevention services presented in this section and Arkansas Code § 11-9-409(d).
(iii) The plan must meet the requirements of the Workers’ Health and Safety Division before it is accepted;
(B) Annual reports as required by subsection (f) of this section; and
(C) Other information as requested by the Workers’ Health and Safety Division.
(d) Accident prevention services required inspection.
(1)(A) Each insurance company’s accident prevention services program will be inspected in accordance with Arkansas Code § 11-9-409(d) and may be inspected more frequently at the Workers’ Health and Safety Division director’s discretion.
(B) For insurance companies licensed to write workers’ compensation insurance in the State of Arkansas, but not actively writing workers’ compensation insurance, the inspection shall consist of a review of their APSP.
(C) Once an insurance company starts actively writing workers’ compensation insurance in the State of Arkansas, it is subject to an inspection of its accident prevention services in accordance with Arkansas Code § 11-9-409(d).
(2) The Workers’ Health and Safety Division shall notify the insurance company in writing of the date, time, and location of the inspection at least one hundred twenty (120) days prior to the inspection.
(3) Within thirty (30) days after notification of inspection, the insurance company or company group shall provide the Workers’ Health and Safety Division, in the format requested, the following:
(A)(i) A list of policyholders with Arkansas exposures, separated by insurance company, with physical addresses of all Arkansas workplaces as defined Rule 3, direct premium written and written manual premium for Arkansas based on the insurance company’s most current records.
(ii) The insurance company shall list the policyholders by written manual premium in descending order for each year or portion of year requested.
(iii) For policyholders with corporate headquarters outside the State of Arkansas, the insurance company shall list the corporate location.
(iv) The insurance company may send the list or lists electronically in a format agreed upon by the Workers’ Health and Safety Division.
(v) The commission will keep the list of policyholder accounts confidential; and
(B) A list of the names, whether employee or contractor, and commission FSR/APSS identification number for each person acting as an FSR/APSS for the insurance company.
(4)(A) The Workers’ Health and Safety Division shall:
(i) Select the specific accounts to be evaluated; and
(ii) Return the selected policyholder list to the insurance company no later than fifteen (15) days after receipt of the policyholder list.
(B) For the policyholders identified, the insurance company shall provide the following to the Workers’ Health and Safety Division to arrive no later than thirty (30) days after receipt of the selected policyholder list:
(i) Loss control files of the policyholders identified to include any survey reports and correspondence, in the manner and format specified by the Workers’ Health and Safety Division;
(ii) Documentation of all accident prevention services provided;
(iii) Copy of loss runs for each account;
(iv) A sample of training materials and other material as requested; and
(v) An Accident Prevention Services Worksheet, Form AW CC-HS-31D, for each policyholder selected by the Workers’ Health and Safety Division.
(5)(A) An insurance company’s failure to meet one (1) or more of the specified requirements of this section may be construed as a failure to provide appropriate accident prevention services to policyholders.
(B) The Workers’ Health and Safety Division may reschedule the inspection, impose fines, and/or ask the State Insurance Department to take action.
(C) The Workers’ Health and Safety Division director shall report the insurance company’s failure to provide the information in the format and in the time specified to other divisions within the commission for appropriate action.
(6) The Workers’ Health and Safety Division shall determine the depth and scope of the inspection.
(7) The Workers’ Health and Safety Division’s staff and the insurance company’s representative or representatives shall review:
(A) The results and recommendations of any previous inspections of the company by the commission;
(B) The insurance company’s APSP, including quality control and quality analysis provisions;
(C) The insurance company’s accident prevention services provided to policyholders and policyholders’ workplaces;
(D) Any changes completed in response to recommendations made during previous inspections;
(E) Any written complaints from policyholders relating to accident prevention services; and
(F) Policyholder worksheets, questionnaires, and results of site visits by commission staff, including information obtained through 11 CAR §§ 25-127 and 25-131 activities.
(8) The Workers’ Health and Safety Division’s staff may make scheduled or unscheduled inspections of the policyholder’s workplace during normal work hours to obtain additional information regarding the insurance company’s accident prevention services.
(9)(A) The Workers’ Health and Safety Division staff shall prepare and file a written report of the inspection within thirty (30) days of the close of the inspection.
(B) The report shall contain:
(i) Results of the inspection including a list of deficiencies, if any; and
(ii) Required corrective actions, if any.
(10) The Workers’ Health and Safety Division shall provide a copy of the report to the insurance company and the department.
(11) Insurance companies that meet the requirements of this section will receive a Certificate of Inspection from the commission.
(12)(A) Insurance companies with accident prevention services that do not meet the standards of this section will be notified of the specific deficiencies.
(B) The commission shall determine the appropriate amount of time for the insurance company to address the identified problems.
(C) The insurance company shall respond in writing with the corrective actions to be taken.
(D) When the Workers’ Health and Safety Division director determines that the insurance company has taken appropriate measures to correct the deficiencies, the Workers’ Health and Safety Division shall issue the Certificate of Inspection.
(E) A request for review of the decision may be made to the director of the Workers’ Health and Safety Division and, if desired, the chief executive officer of the commission.
(13) The commission may require another complete inspection of accident prevention services before issuing a Certificate of Inspection.
(e) Accident prevention services notification requirements.
(1) Each workers’ compensation insurance policy delivered or issued for delivery in Arkansas shall contain the following notice on the front of the insurance policy eminently visible to policyholder or, if the format does not permit, on a separate page placed in front of or on the declaration page, in at least ten-point bold type:
[Name of company] is required to provide its policyholders with certain
accident prevention services at no additional cost as required by Ark. Code
Ann. § 11-9-409(d) and AWCC 11 CAR § 25-127. If you would like more
information, call [company’s loss control division or provider’s telephone
number]. If you have any questions about this requirement, call the
Workers’ Health and Safety Division, Workers’ Compensation Commission
at 1-800-622-4472.
(2) Certain accident prevention services are basic services as described in Arkansas Code § 11-9-409(d).
(3)(A) Extensive sampling of environmental conditions and exposures, writing detailed safety plans (with the exception of 11 CAR § 25-127 activities), and on-site management of specific safety programs, e.g., respirator, hearing conservation, etc., are beyond the scope of basic services.
(B) The Workers’ Health and Safety Division will determine the scope of basic services on an issue-by-issue basis if necessary.
(f) Annual report requirements.
(1)(A) Each insurance company licensed to write workers’ compensation insurance in Arkansas shall submit to the Workers’ Health and Safety Division an annual report quantifying the accident prevention services it provided to its policyholders in Arkansas over the previous year.
(B) Commission Form HS 31-C, or an alternate form as approved by the Workers’ Health and Safety Division, shall be used.
(2) The Workers’ Health and Safety Division director shall send the annual report notification to each insurance company licensed to write workers’ compensation insurance in Arkansas.
(3) The insurance company shall send the report so that it is received no later than April 1 of each year.
(4)(A) The report shall not include the expenses of underwriting visits to policyholders’ premises unless accident prevention services are provided during the visit.
(B) In such case, the costs of the accident prevention services shall be included in the report.
(g) Field safety representative (FSR).
(1) An individual seeking to become an FSR shall apply to the Workers’ Health and Safety Division using application commission Form HS-31-A.
(2) To be approved as an FSR, an individual must:
(A) Have at least two (2) years’ experience in the occupational health and safety profession during the past ten (10) years; and
(B) Meet at least one (1) of the following qualifications:
(i)(a) An associate’s degree in safety, industrial hygiene, or related field.
(b) The college or university must submit a certified transcript directly to the Workers’ Health and Safety Division;
(ii) A current certification by the Board of Certified Safety Professionals as a certified safety professional or associate safety professional;
(iii) A current certification by the American Board of Industrial Hygiene as a certified industrial hygienist or industrial hygienist in training; or
(iv) A current certification by the World Safety Organization as a certified safety manager or certified safety specialist.
(3) If applicants do not meet these requirements, they may still be eligible for approval as an FSR if, out of the previous ten (10) years, they have worked at least seven (7) years as an occupational health and safety professional with a minimum of fifty percent (50%) of their time devoted to workplace health and safety.
(4)(A) If applicants meet the education requirements listed in subdivision (g)(2) of this section, above, but do not have the required occupational health and safety experience, they may be approved as an FSR in training.
(B) The following is required to be approved as an FSR in training:
(i) A copy of commission Form HS-31-A completed and submitted to the Workers’ Health and Safety Division; and
(ii) The FSR in training shall work under the direct supervision of an approved FSR with all accident prevention services work documents (reports, recommendations, etc.) signed by the approved FSR as well as the FSR in training.
(5) When two (2) years of occupational health and safety experience have been obtained, the FSR in training may resubmit a commission Form HS-31-A requesting approval as an FSR.
(6)(A) If an applicant is not approved, the Workers’ Health and Safety Division shall notify the applicant in writing and state the reason or reasons for the denial.
(B) Any applications not approved shall be destroyed after ninety (90) days.
(7)(A) All FSR performances are subject to review by the Workers’ Health and Safety Division.
(B) The Workers’ Health and Safety Division may rescind FSR approval for cause.
(C) A request for review of the decision may be made to the director of the Workers’ Health and Safety Division and, if desired, the chief executive officer of the commission.
(h) Approval of professional safety sources.
(1) An individual seeking to become an APSS pursuant to the commission Hazardous Employer Program, 11 CAR § 25-127, shall apply to the Workers’ Health and Safety Division using application commission Form HS-31-A.
(2) To be approved as an APSS, an individual must:
(A) Meet the FSR requirements and provide verification of at least three (3) additional years of occupational health and safety experience; and
(B) Attend the commission’s APSS seminar.
(3)(A) If an applicant is not approved, the Workers’ Health and Safety Division director shall notify the applicant in writing and state the reason for the denial.
(B) Any applications not approved will be destroyed after ninety (90) days.
(4)(A) All APSS performances are subject to review by the Workers’ Health and Safety Division staff.
(B) The Workers’ Health and Safety Division may rescind APSS approval for cause.
(C) A request for review of the decision may be made to the director of the Workers’ Health and Safety Division and, if desired, the chief executive officer of the commission.
(5) APSSs who have been inactive in the State of Arkansas for a period of more than five (5) years shall attend the commission’s APSS seminar again before providing APSS services to employers in the Extra-Hazardous Employer Program, 11 CAR § 25-127.
(i) Penalties.
(1) The commission may assess a civil penalty in an amount up to one thousand dollars ($1,000) per day of violation against an insurance company that does not maintain or provide the accident prevention services required by Arkansas Code § 11-9-409, payable to the Death and Permanent Total Disability Trust Fund.
(2) Furthermore, the insurance company shall be subject to suspension or revocation of license to do business in this state by the Insurance Commissioner.
(j) Severability. If any provision of this section or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this section which can be given effect without the invalid provision or application, and to this end the provisions of this section are declared to be severable.
"(Effective December 30, 1993; revised June 10, 2003, effective July 1, 2003; revised October 5, 2007, effective January 1, 2008.)"