HAR §12-11-19. Employees not covered under a plan

If an employee who is eligible for benefits under the statute is not eligible for benefits under the plan for any of the following reasons: (1) The eligibility or probationary period under the plan is longer than that provided by law; or (2) There is an eligibility or probationary period under the plan for employees who are entitled by law to immediate coverage; or (3) The plan does not provide for payment of benefits for disability occurring while the person is an "individual in current employment" as that term is defined in section 392-6, HRS; or (4) The employee is not of the class or any of the classes of employees entitled to benefits under the plan; then, and in any one or more of the foregoing circumstances, the employer shall be required to provide for the payment of benefits to the employee in one or more of the ways set forth in section 392-41, HRS. The employer, may, however, modify the plan so as to extend the plan benefits for the statutory periods referred to in paragraphs (l), (2), and (3) above, and the extension shall not be deemed a material modification of the plan. [Eff 5/11/81] (Auth: HRS §392-91) (Imp: HRS §392-41) DLIR 12-11 Page 10 §l2-ll-20 Benefits less favorable with respect to certain employees eligible under a plan. If the benefits under a plan, other than a plan under section l2-ll-ll(l) or l2-ll-ll(2) (B), do not meet the requirements of section l2-ll-l6 as to any class of employees eligible for the benefits, but do meet such requirements as to another class or other classes of employees, the plan may be accepted under section 392-4l, HRS, with respect to the class or classes of employees as to whom the benefits provided do meet the requirements of section l2-ll-l6. The employer may provide statutory benefits for the class or classes of employees for whom the plan benefits do not meet the requirements of section l2-ll-l6 or may supplement the plan benefits by another plan, in order that the total benefits provided for all employees entitled to benefits under the plan shall meet the requirements of section l2-ll-l6. [Eff 5/11/81] (Auth: HRS §392-9l) (Imp: HRS §392-4l) §l2-ll-2l Procedure for obtaining acceptance of plans under section 392-41(a)(4) and (5), HRS. An employer who has an existing plan or a new plan, and who desires to be permitted to provide benefits thereunder in lieu of the statutory benefits for a class or classes of employees, shall apply in writing to the director to have the plan accepted. The employer shall, as a part of the application, and in a form prescribed by the director, file with the director: (l) A statement setting forth the provisions of the plan and, if required by the director, a copy of the plan. (2) An agreement with the director to pay assessments for the special disability fund by the employer or the employer's carrier as the case may be pursuant to section 392-67(a) or (b), HRS. (3) A written agreement, satisfactory to the director, if the plan is one that under section 12-l1-ll(2), l2-ll-l2(b), or l2-ll-l5 requires an agreement, that the benefits under the plan will be continued with respect to all employees included under the plan for disabilities occurring prior to the date the employer files with the director written notice of termination of the plan. (4) Evidence satisfactory to the director that the obligation to pay benefits under the plan has been insured and is kept insured with an insurer duly authorized to transact the business of accident and health insurance in this State or proof satisfactory to the director of the financial ability to pay the benefits and otherwise complying with section 392-4l(a)(2) and (3), HRS. [Eff 5/11/81;](Auth: HRS §392-9l) (Imp: HRS §§392-4l, 392-67) §l2-ll-22 Substitution of new carrier under a plan. If the agreement filed with the director under section l2-ll-2l(2) is the DLIR 12-11 Page 11 agreement of a carrier and not of the employer, acceptance of the plan shall terminate forthwith whenever the carrier's obligation to pay benefits shall terminate, unless prior thereto an acceptable new carrier, assuming fully the obligations of the employer under the plan, has duly filed with the director notice thereof and has filed also the agreement with the director required under section l2-ll-2l. [Eff 5/11/81; comp ] (Auth: HRS §392-9l) (Imp: HRS §392-4l) §l2-ll-23 Default in payment of assessments. If the agreement filed with the director under section l2-ll-2l(2) is the agreement of an employer, or of an association of employers, or an association of employees authorized to pay benefits, or a trust or trustee under a plan paying benefits, the acceptance of the plan shall terminate forthwith on default, after notice, in any payment required to be made to the director in accordance with section 392-47 or 392-67, HRS. [Eff 5/11/81;] (Auth: HRS §392-9l) (Imp: HRS §392-67) §l2-ll-24 Notices and reports required with respect to plans. (a) Whenever a plan accepted by the director shall thereafter be modified or extended, written notice of the modification or extension, in form approved by the director, shall be filed forthwith with the director, and except as to modifications which are not material modifications and except for the extension of a new plan without material modification for a fixed period of time specified in the agreement of extension, no such modification shall be effective until it has been accepted by the director, and when accepted shall be effective as of the date requested, and no extension shall be effective until notice of extension has been filed with the director. (b) A material modification of a plan shall be effective on acceptance by the director, and, without limitation, any modification which reduces the class or classes of employees to which the plan is applicable or the rate of weekly benefits or the period during which benefits are payable, or which increases the waiting period or the contribution of employees to the cost of benefits, shall be deemed a material modification. [Eff 5/11/81;] (Auth: HRS §392-9l) (Imp: HRS §392-4l) §l2-ll-25 Accepted plans. The director shall give to the employer or association of employers or association of employees by whom the application for acceptance was filed, and also to the applicant, written notice that the plan is accepted as satisfying the obligation of the employer or employers to provide for the payment of benefits, or that it is not accepted. From and after the effective date of notice of acceptance, the provision for benefits and employee contributions under the plan shall be effective for the employees, or the class or classes of employees, entitled to benefits under the DLIR 12-11 Page 12 plan, in lieu of the provisions for benefits under the statute, and for employee contributions under section 392-43, HRS. [Eff 5/11/81;] (Auth: HRS §392-9l) (Imp: HRS §§392-4l, 392-43) §l2-ll-26 Reconsideration of denial of application for plan acceptance; appeal. (a) When an application for acceptance of a plan has been denied on the ground that the benefits under the plan do not meet the requirements of section l2-ll-l6, the applicant, within fifteen days after notice of denial has been given, may apply in writing to the director for reconsideration. In support of the employer's application for reconsideration, and as a part of the application, the applicant shall submit a memorandum of the facts on the basis of which applicant contends that the benefits provided under the plan are at least as favorable as the disability benefits under the statute. (b) The director, or an officer or employee designated by the director for that purpose, shall reconsider the application and plan, and the director may direct that a hearing be held for the taking of evidence and for any other consideration as the proofs warrant to conform with the purpose and intent of the statute. (c) The filing of an application for reconsideration or an appeal of the decision upon reconsideration shall not relieve the applicant, or any employer if the applicant is an association of employers or employees, of its responsibility to provide statutory benefits as required by the law pending a final decision thereon. [Eff 5/11/81;] (Auth: HRS §392-9l) (Imp: HRS §392-4l) §l2-ll-27 Minimum coverage standards for an association of employers. (a) The minimum standards which an insured association of employers shall meet to qualify its members for obtaining temporary disability insurance coverage are: (l) The association must be a bona fide organization a charter, constitution, and by-laws or other documentation identifying its purpose, scope, and function. It must have a stable roster of members and assured continuity of operation. (2) The association's membership must be in the same or a closely related industry or have some common interest binding the membership. It must have been formed for a purpose other than obtaining coverage under the statute. (3) The association shall submit a certification in the format prescribed by the department. (b) The minimum standards which a self-insured association of employers shall meet to qualify its members for temporary disability insurance coverage are: (l) The association shall meet all requirements of section l2-ll-27(a). (2) The association shall establish a special temporary DLIR 12-11 Page 13 disability insurance fund in its treasury from which payments received from members for coverage shall be deposited and disbursements paid out. (3) The association shall have a central office staffed by association personnel to administer temporary disability insurance functions such as: collect and remit premiums; receive, process, and pay claims; and prepare reports to the director. (4) The association shall meet the self-insurance requirements of section 392-4l, HRS, and this chapter. (5) The association shall provide the name of its authorized representatives to the director. (c) Participation in any association plan does not release an employer from any obligation under the statute. The association's plan of benefits shall be accepted as the employer's method of providing benefits. The association shall act as the employer's agent only for those functions relating to the providing of benefits. (d) There shall be no individual underwriting in an association plan. [Eff 5/11/81] (Auth: HRS §392-9l) (Imp: HRS §§392-3, 392-4l) §§l2-ll-28 to l2-ll-34 (Reserved) SUBCHAPTER 3 BENEFITS AND CLAIMS PROCEDURES §l2-ll-35 Claim for disability benefits. (a) The employee claiming for disability benefits or a person acting on the employee's behalf shall file a claim for disability benefits with the employer on a form prescribed by the director, or in the case where section 392-66, HRS, is applicable, with the director, within ninety days after commencement of the period of disability or as soon thereafter as is reasonably possible. Proof of disability shall be furnished to the employer, or, in the case where section 392-66, HRS, is applicable to the director, not later than ninety days after commencement of the period of disability and thereafter from time to time as the employer or director may require, but not more often than once each week. In the event the claimant has a controverted workers' compensation claim, the ninety-day filing period for temporary disability insurance is waived if the employee gave notice to the employer of a workers' compensation claim within ninety days after the date on which disability commenced. In such event, the date of notice of the workers' compensation claim shall be accepted as the filing date under this section. (b) The claim for disability benefits shall include statements DLIR 12-11 Page 14 furnished by the claimant and the claimant's attending physician on a form prescribed for the purpose by the director. A carrier, employer, or the director may investigate a claim and for cause require additional information. (c) Failure to file a claim for disability benefits within the time and in the manner above provided shall not invalidate the claim, but no benefits shall be required to be paid for any period more than fourteen days prior to the date on which the required claim for disability benefits is filed. However, if it is shown not to have been reasonably possible for the claimant to file the claim within the time above provided and that the claim was filed as soon thereafter as reasonably possible, benefits may be payable for the full period of disability, provided that no benefits shall be paid unless the required claim is filed within twenty-six weeks after commencement of the period of disability. (d) In the case of an employer who has received approval from the department of its sick leave plan or a collective bargaining agreement where either or both require further disability benefit payments from an insurer upon the exhaustion of sick leave payments, the employer shall initiate the filing of the claim for disability benefits with the insurer within ninety days of the last date sick leave payments were made. [Eff 5/11/81; am 11/3/89] (Auth: HRS §392-9l) (Imp: HRS §392-25, 392-26, 392-27, 392-44) §l2-ll-36 Responsibility of employer to provide benefits. (a) An employer shall provide benefits for disabilities that occur during the period of employment and while the employee is an "individual in current employment" as defined in section 392-6, HRS, provided that if during the two-week period following termination of employment the employee enters into new employment, the responsibility of the first employer to provide benefits ceases on the first day of the new employment if the new employer is subject to the statute. Thereafter, the new employer shall be responsible for providing benefits as required by the statute. (b) An employer of an employee who is eligible shall provide benefits for that employee for any disability which occurs during the period of continued eligibility whether the employment is on a full-time or part-time basis. [Eff 5/11/81] (Auth: HRS §392-9l) (Imp: HRS §§392-6, 392-4l) §l2-ll-37 Part-time employment. If an individual is employed concurrently by more than one employer and is a part-time employee of one or more of the employers, in order to be eligible for benefits from employers for whom the individual is a part-time employee, the employee must give written notice to all of the individual's employers of other employment, giving sufficient details as will enable the employers to ascertain whether the employee is in fact eligible for benefits. [Eff 5/11/81] (Auth: HRS §392-9l) (Imp: DLIR 12-11 Page 15 HRS §§392-3, 392-25) §l2-ll-38 Concurrent employment. (a) An employee is in concurrent employment when the individual is regularly and customarily in the employ of more than one covered employer within the same calendar week and is concurrently eligible for disability benefits from each of the employments. (b) Hours of employment with two or more employers, concurrently, full-time or part-time, and wages earned therefrom, shall be aggregated for purposes of determining eligibility for benefits. [Eff 5/11/81; comp ] (Auth: HRS §392-9l) (Imp: HRS §§392-25, 392-43.5) §l2-ll-39 Two-week period following termination of employment. The period of two consecutive weeks after termination of employment shall end on the fourteenth consecutive calendar day following the last day worked. [Eff 5/11/81] (Auth: HRS §392-9l) (Imp: HRS §392-6) §l2-ll-40 Claim for reimbursement out of workers' compensation benefits. (a) If an employee who is eligible for benefits under the statute is disabled and has claimed or subsequently claims benefits under the workers' compensation law, and if the claim is denied by the director on the ground that the employee's disability was not caused by an accident that arose out of and in the course of the individual's employment or by an occupational disease under the workers' compensation law, the individual's employer or the employer's disability benefits carrier or the director shall forthwith pay benefits under the statute to the employee for the disability. (b) If an employee who is eligible for benefits under the statute has claimed or subsequently claims benefits for an alleged disability under the statutes and under the workers' compensation law, and if the claim is disputed on the ground that the employee was not in fact disabled, the individual's employer or the employer's disability benefits carrier or the director shall forthwith file a statement to this effect with the department. Whereupon the claims under the statute and the workers' compensation law shall be combined and considered jointly in all subsequent proceedings for the purpose of determining the fact of disability. [Eff 5/11/81] (Auth: HRS §392-9l) (Imp: HRS §392-4l) §l2-11-41 Denial of claim. (a) If an employee's claim for benefits is denied in whole or in part by the employer or employer's disability benefits carrier, a copy of the notice of denial, in the form prescribed by the director, shall be sent to the department. The department shall review the denial within ten days of receipt and request the employer or insurer to reconsider the denial if it DLIR 12-11 Page 16 considers it to be erroneous, without proper legal basis, or without sufficient evidence. If the employer or insurer still decides to deny disability benefits, the employee and the department shall be so notified. (b) If an employee desires a review of any action of the claim for benefits, the employee shall file with the director two copies of the notice of denial, the employee's request for appeal, and a statement in duplicate giving specific reasons for the request. The request for appeal shall be filed within twenty days from the date denial was mailed to the claimant. The appeal shall be filed at the office of the department in the county in which the claimant resides or in the county in which the claimant was employed prior to the disability. The director shall forthwith notify the employer or the employer's disability benefits carrier or the special fund for disability benefits, as the case may be, of the claimant's request for appeal, enclosing a copy of the claimant's statement of reasons therefor. Determination of the appeal shall be made in accordance with the provisions of Part V of chapter 392, Hawaii Revised Statutes. [Eff 5/11/81] (Auth: HRS §392-9l) (Imp: HRS §392-44.5) §l2-ll-42 Disqualification for benefits. An individual shall be disqualified for disability benefits under section 392-66, HRS, during any period that the individual is disqualified for unemployment insurance benefits under section 383-30, HRS. [Eff 5/11/81] (Auth: HRS §392-9l) (Imp: HRS §§392-28, 392-66) §l2-ll-43 No waiting period required for benefits from special fund. An individual who is eligible for disability benefits under section 392-66, HRS, shall be paid the benefits without serving a waiting period. [Eff 5/11/81] (Auth: HRS §392-9l) (Imp: HRS §392-66) §l2-ll-44 Disposition of accrued benefits upon death. If any benefits due an employee are unpaid at the time of the employee's death, the benefits shall be payable to the employee's estate or, at the option of the carrier, may be paid to the surviving spouse, parent, child, or children of the deceased employee. Benefits that are due but are not so paid shall, after the expiration of one year from the date of employee's death, be paid into the special fund for disability benefits established pursuant to section 392-6l, HRS. Upon making the payment into the special fund, the carrier shall immediately and thereafter be held harmless from all liability to the extent of the payment, and any claim thereafter for the benefits shall be filed with the director who shall determine the validity thereof. [Eff 5/11/81] (Auth: HRS §392-9l) (Imp: HRS §392-6l) §l2-ll-45 Authorized physician, surgeon, dentist, chiropractor, osteopath, naturopath, or equivalent. Pursuant to DLIR 12-11 Page 17 section 392-26(a) and (b), HRS, an authorized physician, surgeon, dentist, chiropractor, osteopath, or naturopath includes any person duly licensed to practice medicine, surgery, dentistry, chiropractic, osteopathy, or naturopathy in this State; or a duly authorized or accredited practitioner or any group which depends for healing upon prayer or other spiritual means. If a claimant is a bona fide resident of another state, nation, or other recognized unit of government, or if a claimant is disabled while temporarily in another state, nation, or other recognized unit of government, the medical statement and necessary reports of the attending physician duly licensed under its laws to practice medicine, surgery, dentistry, chiropractic, osteopathy, or naturopathy may be accepted as proof of disability. [Eff 5/11/81] (Auth: HRS §392-9l) (Imp: HRS §392-26) §l2-ll-46 Average weekly wage. (a) Except as otherwise provided herein or when shown to be inappropriate or unfeasible, for the purpose of computing the amount of disability benefits of a non-salaried employee during any period of disability, "average weekly wage" shall be the amount determined by dividing the total wages earned by the employee in the employment of the employee's last employer for the eight weeks or portion thereof that the employee was in the employment immediately preceding and including the employee's last day worked prior to commencement of the disability, by the number of weeks or portion thereof of the employment. (b) If an employee's remuneration consists of commissions or piece-work pay, the commissions or piece- work pay earned by the employee during the fifty-two consecutive weeks immediately preceding the date of the employee's disability shall be used in determining the employee's average weekly wage. [Eff 5/11/81] (Auth: HRS §392-9l) (Imp: HRS §§392-3, 392-7) §l2-ll-47 Cash value of remuneration in kind. (a) Board, lodging, or any other payment in kind received by an employee from the individual's employer in addition to or in lieu of (rather than as a deduction from) money wages shall be deemed to be wages paid by the individual's employer. (b) The reasonable cash value of such payments in kind, as established by the department, shall be used in determining the wages paid to the employee and in computing contributions due from the employer and the employee. (c) Where a money value for such payments in kind is agreed upon in a contract of hire, the amount so agreed upon shall, if more than the rates specifically determined by the department or the rates prescribed herein, be deemed the cash value of such payment. (d) Effective January l, l978 and until amendments to rule 2 of Regulation I relating to the administration and enforcement of the Hawaii employment security law are promulgated, board and lodging DLIR 12-11 Page 18 furnished as payment in kind shall be deemed to have not less than the following values: Full board and room, weekly .........$28.00 Meals, per week .................. l8.90 per day ................... 2.70 per meal .................. .90 Lodging, per week .................. 9.l0 per day ................... 1.30 (e) When amendments to rule 2 of Regulation I relating to the administration and enforcement of the Hawaii employment security law are promulgated, subsection (d) shall be deemed to have been amended to reflect such change. [Eff 5/11/81] (Auth: HRS §392-9l) (Imp: HRS §392-3)