Legislative Update

Q1 2023 Legislative Updates

Here is a summary of legislative and regulatory developments and challenges for the first quarter of 2023 and their practical implications:

Pennsylvania Court Decision on BWC Fee Review Authority:

The Commonwealth Court of Pennsylvania ruled that the Bureau of Workers’ Compensation Fee Review Hearing Office does not have the statutory authority to order reimbursement for overpayment of medical services. In its opinion in Philadelphia Surgery Center v. Excalibur Insurance Management Services LLC, the Court reversed the BWC’s Fee Review Section’s order compelling the provider to reimburse the payer over $54,000 in overpayments. The Court found that, although the subject matter was within the hearing officer’s purview, the fee review statute doesn’t authorize the Hearing Office to require reimbursement of an overpayment.

In support of its determination, the Court explained that the fee review process permits providers to challenge underpayments or denials of payment, but does not give insurers the reciprocal right to use the fee review process to obtain reimbursement of an overpayment. As a result, “an insurer is simply stuck with its own improvidence when it pays too much in the first instance during the billing process.”

Implications: The Court noted that any balancing of payers’ remedies is in the hands of the Pennsylvania General Assembly, and legislators have been reluctant to act on these matters in the past. In the absence of legislative relief, payers and their agents need to be very careful adjudicating Pennsylvania provider bills.

Impact of the End of the Covid Emergency on WC Telehealth: 

The Biden administration has announced its intent to end the COVID-19 National Emergency (NE) and the COVID-19 Public Health Emergency (PHE) on May 11, 2023. During the pandemic, many state governments relaxed existing impediments to the delivery of telehealth within their borders to patients within the general health care sector. Sometimes the loosening of telehealth regulation was the result of statutory enactment, but often it was the result of executive orders from the governor’s office, with expiration dates dependent upon current NE or PHE designation.

According to the federal CARES Act passed in 2020, many forms of telehealth, including physical therapy, were granted waivers to bill for services delivered via telehealth under Medicare for as long as the PHE was in place. In 2022, Congress extended telehealth flexibilities through 151 days after the PHE ends, and the U.S. Centers for Medicare & Medicaid Services (CMS) followed through with the change in the 2023 Medicare Physician Fee Schedule. Then late last year, Congress extended that ability again to Dec. 31, 2024.

Implications: The reason that CMS telehealth regulations are important to the continuing delivery of telehealth to injured workers is that many WC regulatory agencies follow CMS reimbursement rules in approving services eligible for payment by WC payers. In fact, two important jurisdictions, California and Texas, have adopted CMS telehealth guidelines and can be expected to follow them at least for the near future.

Nevertheless, other key jurisdictions such as New York appear to be following a more restrictive approach to telehealth delivery to their residents in general, including injured workers. This means that the prospects of WC telehealth into the intermediate future are unsettled.

We’re restoring movement, empowering recovery, and driving progress in workers’ compensation.

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