Here is a summary of legislative and regulatory developments and challenges for the fourth quarter of 2019 and their practical implications:

Kentucky

The Department of Workers’ Claims has proposed Administrative Regulation 803 KAR 25:260, which adopts the ODG treatment guidelines broadly applied to non-emergency medical care.  Treatment recommended in the guidelines would be presumed to be reasonable and necessary. Conversely, treatment not recommended or not addressed in the guidelines would require preauthorization, with the burden placed on the provider to justify the proposed treatment.  For retrospective bills, payers would not be responsible for paying for treatment outside the guidelines unless it (a) was provided in a medical emergency, (b) was authorized by the payer, or (c) was approved via dispute resolution by an administrative law judge.

• Implications

Once formally adopted, the new Administrative Regulation will add Kentucky to the list of jurisdictions that use independently developed interstate medical treatment guidelines to promote effective medical care while reducing friction within the WC system.  The new regulation is scheduled to become effective for all treatment administered after July 1, 2020.

Nevada

Senate Bill 381 adds a new section to the existing statute (NRS 616B.527) permitting payers to contract with preferred provider networks and giving payers the right to require injured workers to obtain healthcare services (including physical therapy) within the preferred provider organization.  The new law imposes a qualification on employers’ and insurers’ ability to direct care:  the injured worker must choose from the employer’s/insurer’s list of physicians and chiropractors only if the employer/insurer maintains a list of 12 physicians for each of the enumerated physician specialties and for 12 chiropractors.  The new law requires employers and insurers to maintain a list of physicians and chiropractors only, but not a list of PTs.

If the payer doesn’t provide a list that complies with this requirement, the injured worker can select a physician or chiropractor from an approved list compiled by the WC Section of the Division of Industrial Relations.  Further, the new law requires employers and insurers to file with the DIR an updated list of physicians and chiropractors by October 1 of each year.

• Implications

The statute considerably restricts what has been a permissive approach to employer direction of care by imposing a “panel” requirement for physician specialties and chiropractors.  Further, unless implementation of the requirement is postponed by the DIR, payers needed to submit their lists to the DIR by January 1, 2020, in order to maintain their ability to direct injured workers to network physicians and chiropractors.

New York

The New York State Workers’ Compensation Board has proposed several amendments to its regulations to conform them to the recently enacted Expanded Provider Law taking effect on January 1, 2020.  The proposed amendments to the regulations implement the statute by detailing the billing process to be followed by newly authorized providers.

The amendments clarify the regulations in three ways.  First, the amendments provide that payers subject to the regulations include third party administrators as well as employers and insurers.  Second, the amendments add as new provider types protected by the regulation any authorized medical provider of Medical Care (defined broadly in the underlying statute to include physical and occupational therapists and acupuncturists, among others).  Third, the amendments simplify the billing dispute process to eliminate the “continuous course of treatment” concept and to extend time to submit bills from 90 days to 120 days from the date of service.  The amendments have an effective date of January 1, 2020.

• Implications

The proposed amendments primarily conform the current regulations to the new statute and bolster the WCB’s enforcement powers over all payers, including TPAs.  Lengthening the permitted provider bill submission timeline from 90 to 120 days after date of service, however, may necessitate changes to payers’ late-bill denial processes.  The amendments retain their status as proposed rather than final, but payers may be well-served to comply with the proposed amendments sooner rather than later.