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Legislative Updates

• Q3 2021 Legislative Updates

  Q3 2021 Legislative Updates

  Here is a summary of legislative and regulatory developments and challenges for the third quarter of 2021 and their practical implications:

  Legislative Action & Trends: As reported in the recently published NCCI 2021 Regulatory and Legislative Trends Report, recent state legislative activity has focused heavily on the COVID-19 pandemic. These legislative measures have adopted and expanded presumptions that workers’ exposure to COVID-19 arises out of and in the course of and scope of employment and therefore, is a compensable injury or disease under workers’ compensation. Five states that recently expanded presumptions are Alaska, Illinois, Minnesota, Vermont and Wyoming. Further, legislative measures establishing a presumption of work-relatedness are broadening employers’ WC exposure in three additional ways. First, the original list of workers subject to the presumption (e.g., health care workers and first responders), has been considerably broadened to include many less dangerous employee classes as seen in statutes in Texas and Virginia. Second, many bills do not have sunset dates tied to a time-limited COVID-19 emergency declaration (typical of a gubernatorial executive order), so they will not expire when the pandemic subsides. Rather, they will become a permanent part of the WC benefits landscape. Third, some bills are not limited specifically to COVID-19, but instead have terms that apply broadly to future unspecified infectious diseases or pandemics, e.g., statutes in Tennessee and Washington. Another societal trend finding its way into legislation affecting WC compensability arises from public awareness of the serious and lingering health effects of post-traumatic stress syndrome (PTSD) suffered by public safety personnel and armed service members. States enacting legislation in 2021 expanding WC coverage for mental injuries include Connecticut, Idaho, Maine, Maryland, Nebraska, New Hampshire, Utah, West Virginia and Wisconsin. Implications: The third quarter of 2021 was relatively quiet from a legislative perspective, with many legislatures adjourned or in special session focused on issues not specifically directed at WC. With the arrival of autumn, however, most state assemblies will reconvene to continue their consideration of pending bills that, while not narrowly targeting WC, may have a large impact on WC claims in the longer term. North Dakota:  On August 1, North Dakota became the first US jurisdiction to permit physical therapists to act as primary treating providers for workers’ compensation claimants. The state’s exclusive state fund, Workforce Safety & Insurance agency (WSI), issued guidelines permitting PTs to perform stay/return to work planning, correspond with WSI regarding the injured worker’s injury, provide capability assessments every two weeks, determine maximum medical improvement to guide claim management and refer the patient to most other health care providers without WSI prior authorization. Implications: Allowing patients to have direct access to PTs without requiring a referral from a physician is common within group health plans, but the North Dakota statute and guidelines break new ground for workers’ compensation claimants. North Dakota employers currently have the option of requiring injured workers to treat with the employer’s choice of Designated Medical Provider, however, so the immediate impact on employers may be limited. Nevertheless, this innovation bears watching as a means of delivering prompt and cost-effective health care and medical management to claimants who have experienced musculoskeletal injuries.

• Q2 2021 Legislative Updates

  Q2 2021 Legislative Updates

  Here is a summary of legislative and regulatory developments and challenges for the second quarter of 2021 and their practical implications:

  California MPN Legislation: Two bills that posed significant challenges to California’s Medical Provider Network (MPN) system have been defeated, at least for now. Assembly Bill 399 would have mandated that MPNs pay participating providers at California’s Official Medical Fee Schedule and would have prohibited negotiated rates below the regulatory fee. The measure would also have restricted MPNs’ ability to review provider bills for mistakes, fraud and abuse. Through intense opposition by employers and WC payers, the bill was held in the Assembly Insurance Committee without being voted on and, as a consequence, is ineligible for further consideration until the next legislative session. Assembly Bill 1465 would have required the Division of Workers’ Compensation to establish a state-run MPN (CAMPN) and would have permitted injured workers to select providers from this network in lieu of their employers’ MPNs. This measure is now a “study bill,” meaning that the California Commission on Health and Safety and Workers' Compensation (CHSWC) will compare treatment delays and provider access issues between MPN and non-MPN claims and issue a report of its findings by January 1, 2023. Implications: It is unlikely that either of these bills will be resurrected in the foreseeable future. Unlike SB 537, a similar measure that was enacted in a weakened form in 2019, AB 399 failed to gain any traction during the current legislative session, due in large part to the immediate increase in WC medical costs forced by the measure’s prohibition of network discounts. AB 1465 also met strong opposition from the business community, and the CHSWC study likely will counter the arguments of AB 1465 proponents that California injured workers lack access to high quality medical care via MPNs. Arizona Telehealth Legislation: On May 5, Governor Doug Ducey signed into law HB 2454, which provides broad support for telehealth services in group health coverage. The measure clarifies existing law that Arizona endorsement of telehealth encounters applies to ancillary services and requires a carrier to reimburse health providers at the same level of payment for equivalent services, regardless of whether the services are provided in-person or via audio-visual telehealth. Specifically in relation to workers’ compensation, the law allows medical examinations for workers' compensation claims to be conducted via telehealth with the consent of both the employee and the requesting party. Implications: HB 2454, which was effective on its enactment, continues the broad trend toward state endorsement of telehealth when those services are medically appropriate. WC payers should incorporate telehealth into their injured worker treatment options if they haven’t done so already.

• Q1 2021 Legislative Updates

  Q1 2021 Legislative Updates

  Here is a summary of legislative and regulatory developments and challenges for the first quarter of 2021 and their practical implications:

  Major State Privacy Legislation: California and Virginia have new and comprehensive privacy statutes on the books, although the effective date for both initiatives is delayed until January 1, 2023. The California Privacy Rights and Enforcement Act (CPRA) expands upon the current California privacy statute, the California Consumer Privacy Act (CCPA), by regulating not only the buying and selling of consumer information, but also its “sharing.” This term, while appearing to be broad, actually is narrowly defined as targeted advertising based on the consumer’s personal information. The focus of California’s privacy protection measures was and continues to be on commercial use of consumers’ personal information for sales and marketing purposes. The Virginia Consumer Data Protection Act (CDPA) takes a different approach to consumer privacy, following many of the concepts found in the European Union’s General Data Protection Regulation (GDPR), such as the use of the terms “controller” and “processor.” A “controller” is an entity that determines the purpose and means of processing personal data (such as an insurer or TPA), whereas a “processor” processes personal data on the controller’s behalf (such as MedRisk). There are a number of thresholds and exemptions that will relieve MedRisk and many of its clients and trading partners from CDPA compliance obligations. For example, the law applies only to entities that control or process the personal data of at least 100,000 Virginia residents during a calendar year. Further, entities exempted from the law include those that are subject to the federal Gramm-Leach-Bliley Act (applying to financial institutions) or that are “covered entities” or “business associates” under HIPAA. Notably, the law does not create a private right of action but restricts its enforcement exclusively to the Attorney General of Virginia, who presumably will limit regulatory action to intentional violations. Implications: Although neither the California CPRA nor the Virginia CDPA is likely to have much impact on the operations of MedRisk or its trading partners, a potential trend toward a patchwork of comprehensive and inconsistent privacy laws is troubling. Most companies that operate nationally may be driven toward adoption of a lowest-common-denominator set of privacy standards that comply with state laws representing the binding constraint.

• Q4 2020 Legislative Updates

  Q4 2020 Legislative Updates

  Here is a summary of legislative and regulatory developments and challenges for the fourth quarter of 2020 and their practical implications:

  Fourth quarter legislative activity continued to be light given earlier adjournments in many states and legislators’ focus on their election campaigns.  Fortunately, the NCCI has been busy with an analysis that teases valuable insights out of the flurry of daily headlines.  We commend to your review the NCCI’s 2020 Regulatory and Legislative Trends Report.

  COVID-19 Compensability Presumption

  The coronavirus emergency took center stage in state capitols in 2020.  In the WC area, legislators introduced bills that would extend the presumption of WC compensability to certain categories of workers (e.g., first responders, critical or essential workers) who contract COVID-19.  The surprising insight of the NCCI’s research is how limited this trend is:  enactments in only 10 jurisdictions.  Certainly, some represent large WC markets (e.g., California, Illinois, New Jersey), but most are not (e.g., Alaska, Utah, Vermont).

  • Implications

  The year 2021 marks the beginning of new two-year legislative terms in most states.  This means that 2020 bills won’t carry over to the new year except in Virginia and New Jersey, which have odd-year election cycles.  The many COVID-related bills that weren’t enacted in 2020 will need to restart their journey through the legislative maze, while public optimism grows that newly available vaccines will quell the pandemic in the foreseeable future.  WC claim operations may still experience an influx of COVID claims, but claim payers may have more compensability defenses at their disposal than they at one time expected.

  Telerehabilitation Authorization

  We noted in earlier updates that telehealth services of all sorts have grown exponentially during the coronavirus emergency, enabled by CMS’s relaxation of earlier safeguards against Medicare and Medicaid fraud and abuse in response to the need for virtual health care.  That expansion has continued with CMS most recently granting blanket waivers to all telemedicine providers whose state governments have declared a COVID-related “state of emergency.”  All jurisdictions have done so. For technical reasons, telerehabilitation will be largely excluded from permanent CMS telemedicine rulemaking until Congress passes corrective legislation that, although not controversial, hasn’t been a priority in 2020’s fraught political environment.  This correction should occur if and when bi-partisan cooperation returns to Congress.  Meanwhile, states continue to issue – and renew – temporary executive orders  permitting telerehabilitation services for workers’ compensation claimants.

  • Implications

  The US Department of Labor’s Office of Workers’ Compensation Programs (OWCP) has already issued permanent regulations removing telerehabilitation from mandatory pre-authorization for Longshore and Harbor Workers’ medical services, and it is likely that state WC agencies will continue this trend when they are no longer constrained by the regulations pegged to CMS payment rules.

  MedRisk Will Accept & Process CPT Code 99072

  CPT code 99072 was created by the CPT Editorial Panel in response to extra practice expenses associated with patient care during the current Public Health Emergency. In our continuing efforts to coordinate, manage, and provide solutions for our injured workers, clients, and our valued physical medicine provider partners during COVID-19, MedRisk will accept and process billing code 99072.

• Q3 2020 Legislative Updates

  Q3 2020 Legislative Updates

  Here is a summary of legislative and regulatory developments and challenges for the third quarter of 2020 and their practical implications:

  With the wide majority of state legislatures adjourned prior to the third quarter, and a few not meeting at all in 2020, legislative activity has been light.  Further, that activity has been focused primarily on the COVID-19 pandemic.

  COVID Compensability Presumption

   California enacted SB 1159, which establishes a presumption of workers’ compensation (WC) coverage for critical workers contracting COVID-19 whose fellow employees experience positive test results.  The new law defines “critical worker” as a public sector or private sector employee who is employed to combat the spread of COVID-19.  WC medical benefits are primary, but WC temporary disability benefits are secondary to employees’ paid sick leave benefits and, for police officers, firefighters, and other specified government employees, leave-of-absence benefits.  The legislature is considering other COVID-19-related bills and will not adjourn until November 30. New Jersey enacted SB 2380, which establishes a rebuttable presumption of WC coverage for “essential employees,” broadly defined to include public safety workers and first responders, providers of health care and support services in health care facilities, workers performing functions in proximity to the public, and other workers named in any emergency order.  The New Jersey legislature continues to be in session, but at present there are no other COVID-19-related bills in the legislative pipeline.

  • Implications

  The NCCI has identified 87 separate bills or executive orders nationwide that expand the compensability of WC to employees contracting this coronavirus.  Most of bills have failed or are still under consideration, and many of the executive orders will expire or have limited scope.  Nevertheless, the COVID-19 pandemic will have a significant impact on WC payer claim operations.

  Telerehabilitation Authorization

  In the absence of federal legislation clarifying CMS rulemaking authority over telehealth services for physical medicine, some state WC agencies are issuing month-to-month emergency rules extending authorization of telerehabilitation for WC claimants.  Most recently, the Texas Division of Workers’ Compensation has extended authorization of telerehabilitation until October 10, and the Mississippi Workers’ Compensation Commission, via emergency rule, has recently opened up telemedicine to include physical therapy and occupational therapy. Further, following the lead of Gov. John Bel Edwards, the Louisiana Office of Workers’ Compensation has issued an emergency rule extending authorization of payment for telemedicine for WC claimants until October 26.

  • Implications

  Under authority granted under the federal CARES Act, CMS has temporarily expanded the types of practitioners that may bill for their services when furnished as Medicare telehealth services from the distant site to include physical therapists and occupational therapists, at least for certain physical medicine services. Because a number of state WC agencies follow Medicare payment rules, this waiver has the effect of opening up telerehabilitation for WC claimants in many states, but the temporary and piecemeal nature of the waiver means that uncertainty will continue until Congress passes definitive, broad and permanent legislation correcting this technical but important glitch. CMS itself has acknowledged the need for a permanent fix.  In August, CMS Administrator Seema Verna said that the number of patients utilizing telemedicine has exploded during the pandemic, from about 13,000 per week to more than 630,000.  It is likely that the “new normal” after the pandemic subsides will embrace extensive use of telemedicine services, including telerehabilitation.

• Q2 2020 Legislative Updates

  Q2 2020 Legislative Updates

  Here is a summary of legislative and regulatory developments and challenges for the second quarter of 2020 and their practical implications:

  Effects of the COVID-19 pandemic dominated legislative and regulatory activity during the second quarter. Some of these responses to the emergency will be transitory (e.g., closing of agency offices and delay of regulatory actions and hearings), but others are likely to be more long-lasting.

  Regulatory virtualization

  In response to social distancing and stay-at-home orders, government agencies have embraced an array of technological solutions.  These range from video conferencing of administrative hearings to the elimination of notarization of legal documents.  Professionals and companies, spurred by extensive work-from-home strategies and avoidance of business travel, have incorporated these techniques more broadly into their day-to-day operations.

  • Implications

  Commentators have observed that there will not be a complete “snap back” to business and social normalcy after the pandemic fades.  This may hold true in the regulatory environment, as well.  Although many agencies’ technological innovations are temporary measures as currently written, a “new normal” may prevail afterwards. Less bureaucratic red tape may appear as an advantage, with perhaps less stakeholder-government interaction, and thus less administrative agency accountability, as a disadvantage.

  Broadening of telehealth authorization

  As noted in the 1Q20 report, many states have temporarily relaxed barriers to telehealth services, through either WC/insurance regulatory agency, health department or governor’s order.  These actions address payment, scope of practice and billing issues. With the coronavirus pandemic continuing into the foreseeable future and with providers, patients and payers having generally positive experiences with telehealth services, it is likely that many of these temporary measures will be extended and then made permanent.

  • Implications

  Employers and commercial payers will need to develop techniques to maximize the benefits of telehealth services while managing the quality of care as it relates to workers’ compensation and return to work.  They also need to strengthen their cybersecurity defenses to thwart the attacks that are predicted to form around this innovative healthcare delivery model.  Forming partnerships with managed care organizations that have expertise in this field and strong IT security measures will be a key component of this strategy.

  Compensability presumption

  Many states have adopted or are considering measures to protect “front-line” workers by creating a presumption that COVID-19 is a work-related disease for broad classes of employees who are exposed to contagious patients or are required to work in high-risk environments.  The National Conference of State Legislators reported earlier this month that six states have taken action to deem COVID-19 as a presumptively work-related illness, either through legislative enactments or executive authorizations, and action pending in several other jurisdictions. Protected classes extend beyond first responders and healthcare workers, to others deemed essential, including grocery store employees.  For the full report: https://www.ncsl.org/research/labor-and-employment/covid-19-workers-compensation.aspx. In addition, the NCCI has published a survey addressing the current status of COVID-19 compensability presumption laws and regulations, which can be found here:  https://www.ncci.com/Articles/Pages/Insights-Compensability-Statutory-Survey-May-2020.pdf.

  • Implications

  Compensability presumptions tend to be permanent after the emergency recedes, conclusive rather than merely evidentiary in operation, and expandable to other conditions and protected categories of workers.  This politically popular response to the pandemic may prove to be one of the most important and enduring effects of the COVID-19 emergency.  

• Q1 2020 Legislative Updates

  Q1 2020 Legislative Updates

  Here is a summary of legislative and regulatory developments and challenges for the first quarter of 2020 and their practical implications:

  COVID-19 Pandemic

  The global coronavirus emergency has spurred a number of changes to the WC managed care regulatory environment: Broadening of telehealth authorization:  Health regulators have issued orders encouraging the use of telemedicine and telehealth services to maintain health care access while protecting both patients and health care providers from exposure to COVID-19.  The Centers for Medicare and Medicaid Services (CMS), in a recently published directive to physicians and other clinicians entitled “CMS Flexibilities to Fight COVID-19,” has announced that Medicare will pay for telehealth physical therapy codes that were previously restricted.  Many state workers’ compensation agencies that follow CMS payment rules may follow suit. Suspension of regulatory activity:  Most state WC regulatory agencies have limited their operations to active dispute resolution matters only, and many of these have moved to telephonic rather than in-person hearings. Rulemaking activities generally have paused across the country, and legislative sessions have adjourned.  Temporarily, this trend is likely to grow if, as is likely, confirmed cases of COVID-19 increase when testing becomes more available and governors respond with broadly applicable lock-down and stay-at-home executive orders. Relaxation of deadlines:  In recognition of the difficulties that patients, providers and payers are experiencing during the coronavirus lockdown, insurance and WC regulators have suspended filing, bill submission and, in some cases, payment deadlines.

  • Implications

  WC payers currently have pressing challenges adapting to the rapidly changing regulatory climate.  Once the crisis subsides, workers’ compensation regulation may return to pre-coronavirus policies and rules or shift to a “new normal” that welcomes, for example, virtual rather than in-person hearings and greater use telemedicine and telehealth for the convenience as well the safety of patients.