Your Most-Asked Questions: What Illinois HB 5228 Means for You

August 2026

Jeffrey R. Gibellina

On August 7, 2026, Governor J.B. Pritzker signed HB5228 into law (Public Act 104-0792), prompting us to reconsider how we handle disputed medical treatment under the Illinois Workers’ Compensation Act. We previously addressed the substance of HB5228 in our June practice alert (click HERE for that write-up). Now that the legislation has become law, the focus shifts from what changed to what employers, carriers, and claims professionals need to do about it. This Q&A addresses some common questions surrounding the amendments to Section 12 of the Act, particularly the new 90-day requirement for obtaining an IME report to address whether proposed medical treatment is reasonable and necessary.

1. What exactly does the new language say under Section 12 of the Illinois Workers’ Compensation Act?

The exact amended language under Section 12 of the Act is as follows with the most relevant portions emphasized:

If an employer asks a medical practitioner for an examination of the reasonableness and necessity of the medical services proposed or provided under subsection (a) of Section 8, instead of a utilization review under Section 8.7, the examination required under this Section and the report of the examination shall be provided by the medical practitioner to the employee or the employee's representative and the employee's treating health care professional within 90 days after receipt of the request for the examination of the reasonableness and necessity of treatment. The 90-day period begins when the employer receives the medical records from the treating health care professional requesting the medical service. The employer or the employer's representative shall exercise due diligence in requesting and collecting the employee's medical records in accordance with all applicable laws. The medical practitioner who performs the examination to determine the reasonableness and necessity of treatment shall be board certified in the same specialty as the treating health care professional. If the employer fails to comply with this paragraph after receiving the medical records from the treating health care professional requesting the medical service, there is a rebuttable presumption that the employer shall be responsible for the payment of additional compensation under Section 16 and subsection (l) of Section 19. This paragraph applies to the failure to authorize or approve treatment as well as the failure to pay for treatment.

2. Does this new language under Section 12 apply to workers’ compensation claims filed before passage of the new law (and that remain open) as well?

Under Illinois law, if a new law is deemed procedural in nature – rather than substantive – the law applies to both open claims and future claims. We expect that the injured worker and their attorneys will argue that the law is, at least in part, procedural in nature and, thus, argue that it applies to claims that were filed before (and remain open) the new law went into effect. Future case law will provide clarity on this issue.

For now, if you have any claims with a demand for authorization of medical treatment/services that you question, we strongly recommend considering an IME to address the same.

3. Does this new language under Section 12 apply to other issues in litigation such as causation and nature and extent?

No. The new language under Section 12 only applies to the reasonableness and necessity of medical treatment ordered by the treater. There is no requirement that we secure opinions from Section 12 examiners on causation, nature and extent, past treatment, work restrictions, etc. within that 90-day provision. Of course, it remains best practice to secure opinions on these items sooner than later to expedite resolution of these claims.

4. What can we do to ensure compliance with the new 90-day provision under Section 12?

1. Confirm immediately upon receipt of a workers’ compensation claim:
   1. whether the treater is recommending any treatment;
   2. the treater causally connects that treatment to the accident;
   3. whether there is a demand by the injured worker or their attorney to cover that treatment under workers’ compensation;
   4. whether that treatment is in dispute or requires additional investigation.

If your answers to all the above are yes, then proceed to items #2-5 below (and consider referral to BCM Law for handling):

2. Issue subpoenas immediately to all relevant entities (i.e. treaters, hospitals, primary care doctor, imaging facilities, etc.);
3. Schedule an IME with a physician board-certified in the same specialty as the treater (i.e. if treater is a board-certified orthopedic surgeon specializing in the foot, then a Section 12 examiner should match those qualifications);
4. Communicate with your Section 12 examiner to ensure they are aware of the 90-day provision and seek confirmation, preferably in writing, that they can comply with the 90-day provision (you may opt to schedule more than one IME; see next question);
5. Implement a system to monitor the status of outstanding subpoenas and pending IME report from Section 12 examiner and follow up in writing as necessary.

The new language under Section 12 also requires that we exercise “due diligence in requesting and collecting the employee's medical records in accordance with all applicable laws.” This standard of “due diligence” will likely carry over to scheduling the IME and securing the subsequent report. The best practice for showing due diligence is to document our efforts including timely issuance of subpoenas, communications with Section 12 examiner(s), and follow-up communications regarding status of both subpoenas and IME report(s).

Should the injured worker file a motion claiming non-compliance with the 90-day requirement, the above evidence can also be used at hearing to overcome the rebuttable presumption that we did not comply with that requirement.

5. How can I ensure that our Section 12 examiner matches the qualifications of the treater as now required under the new law?

The relevant portion of the amended language under Section 12 states, “[t]he medical practitioner who performs the examination to determine the reasonableness and necessity of treatment shall be board certified in the same specialty as the treating health care professional.”

To comply with this new provision, we recommend first confirming whether the treater is board-certified in any specialties such as orthopaedic surgery, neurological surgery, psychiatry, pain medicine, etc. We can secure this information through several channels including reviewing the treater’s profile/bio online, reviewing the doctor’s CV, or contacting the doctor’s office directly. Once we confirm board certifications, we can then schedule an IME with an appropriate Section 12 examiner.

Importantly, the new language, so we argue, does not preclude us from securing more than one IME to opine on whether treatment is reasonable and necessary to fortify our defense. For example, if the treating pain medicine doctor diagnoses the injured worker with lumbar spine pathology and recommends a lumbar fusion, we would schedule an IME with a doctor specializing in pain medicine to comply with the new law. However, we may also set up an IME with an orthopedic surgeon specializing in the spine as the latter doctor would likely be deemed more credible at the Commission.

6. What if we cannot meet the 90-day requirement?

Even with our best efforts, for a variety of reasons, we may find ourselves up against it with the 90-day provision. What then? You can always get a utilization review report under Section 8.7 to address recommended treatment, among other items. Typically, the turnaround time for UR reports is much faster than an IME report. That being said, we usually recommend an IME first as it is, by and large, more credible at the Commission (i.e. in-person examination by a qualified physician).

To confirm, in the event you will not get an IME report back within the 90 days, we still recommend securing that report as it represents cogent evidence for addressing future medical as well as causation, nature and extent, past treatment, work restrictions, and maximum medical improvement. Importantly, the new language under Section 12 does not bar or prevent us from getting an IME report beyond that 90-day requirement, it only exposes us to fees and penalties for a delay in securing that report.

7. What exactly are the penalties for non-compliance with the 90-day provision?

The amended Section 12 language on this topic states: “If the employer fails to comply with this paragraph after receiving the medical records from the treating health care professional requesting the medical service, there is a rebuttable presumption that the employer shall be responsible for the payment of additional compensation under Section 16 and subsection (l) of Section 19.”

Section 16 applies to attorney’s fees, which are typically 20% of any recovery or award.

Section 19(l) states in relevant part: “In case the employer or his or her insurance carrier shall without good and just cause fail, neglect, refuse, or unreasonably delay the payment of benefits under Section 8(a) or Section 8(b), the Arbitrator or the Commission shall allow to the employee additional compensation in the sum of $30 per day for each day that the benefits under Section 8(a) or Section 8(b) have been so withheld or refused, not to exceed $10,000.”

In short, our maximum exposure under this new language is $10,000.00 plus attorney’s fees. To note, in theory, this exposure can multiply with more than one violation of the 90-day provision for different modes of treatment. For additional context and a more likely scenario (than maximum exposure referenced above), if we provide the IME report 120 days after demand made by treater for treatment and the arbitrator finds, after hearing on the issue, this is in violation of the new 90-day provision, we would be liable for penalties of $900.00 (30 days [120 days – 90 days] x $30.00) plus attorney’s fees of $180.00 ($900.00 x 20%). Total exposure under this scenario equals $1,080.00. If 60 days past the 90-day provision, total exposure is $2,160.00.

While the new law creates new considerations for employers, carriers, and claims professionals in the handling of disputed medical treatment, the practical takeaway is straightforward: identify disputed treatment early, act promptly, document your efforts, and closely monitor the 90-day timeline. With appropriate procedures in place, the new Section 12 requirements can be effectively incorporated into the day-to-day administration and defense of workers’ compensation claims.

As with any significant amendment to the Act, questions regarding interpretation and application will undoubtedly develop as the Commission and courts address the new language. BCM Law, P.C. will continue to monitor those developments and provide guidance as the law evolves.

Should you have any questions or concerns regarding the new law including the amended language under Section 12, please do not hesitate to contact BCM Law, P.C.